Banking partner terms and conditions
These SPS US Embedded Terms of Service (these "Terms") are an agreement between you and System Pay Services (U.S.), Inc., a Delaware corporation with a registered address at 365 Toni Stone Xing, Floor 3, San Francisco, CA 94158 ("we," "us," and "our"). These Terms govern your use of Digital Asset Services
available to you through our platform or a platform partner (each, a "Platform Partner"). By creating an account, clicking "I agree" or "Submit," or using Digital Asset Services, you (a) agree to be bound by these Terms, (b) where services are provided by a Service Partner, you agree to also be bound by the relevant Service Partner’s terms and authorize and approve the use of the relevant account for your purposes and (c) acknowledge that you have read and consent to our Privacy Policy, GLBA Privacy Notice, and Electronic Communications Notice as well as related Service Partner disclosures, posted on the BVNK Help Centre on our website.
Article 1. Definitions
1.1 Definitions.
(a) "Auto-Conversion" means an automatic Conversion executed under Article 6, where you willnot be asked to accept the applicable rate and fees prior to execution.
(b) "Conversion" means the conversion of one currency to another (which includes fiat and/orDigital Assets), following the execution of an order by us in accordance with our OrderExecution Policy and includes an Auto-Conversion.
(c) "Conversion Quote" means a quote for a Conversion order setting out the rate, fees and anyother relevant additional information and terms applicable to a Conversion.
(d) "Conversion Request" means your request that we undertake a Conversion.
(e) "Digital Asset" means stablecoins or other digital assets represented digitally orelectronically as made available on the platform.
(f) "Digital Asset Services" means the Digital Asset Wallet, Fiat Virtual Account, StablecoinPayout Service and/or any other related product offering.
(g) “Digital Asset Wallet” means an individual wallet that allows you to hold, send, and receivesupported Digital Assets and, if available, convert between supported fiat and Digital Assetsvia RFQ Conversions or Auto-Conversions and any related account features, made availableby us directly or via a Platform Partner including as set out in Article 5.
(h) "Fiat Virtual Account" means a virtual account to send, hold and receive certain fiat fundsprovided directly to you by us or via a Platform Partner including as set out in Article 5.Depending on your jurisdiction, the fiat currency involved, and our licensing status, a FiatVirtual Account may be: (i) held at a Service Partner bank by us and designated "for thebenefit of" (FBO) you, in this structure we maintain legal title to facilitate payments, whilebeneficial ownership of the funds in the Fiat Virtual Account remains with you at all times; or(ii) held at a Service Partner bank for your benefit, in this structure we do not have legal orbeneficial interest in, or right to control, the funds in the Fiat Virtual Account. In allinstances, title to your assets shall remain with you and shall not transfer to us.
(i) "Internal Transaction" means a transaction processed and settled off-chain and/or withoutthe use of a fiat payment scheme, as further described in the “Internal Transactions andSettlement” section.
(j) "Order Execution Policy" means our order execution policy found here, as amended fromtime to time.
(k) "RFQ Conversion" means a Conversion where you accept a time-limited Conversion Quoteprovided by us.
(l) "Service Partners" means digital asset service providers, banks that provide Fiat VirtualAccounts and/or card issuers, as applicable.
(m) “Stablecoin Payout Service” means a service that does not offer you a Digital Asset Walletbut involves you instructing (a) the transfer or debiting of fiat funds from your fiat accountheld with the Platform Partner and/or (b) the relevant service provider to undertake aConversion of those fiat funds to Digital Assets and send such Digital Assets to yournominated wallet, made available by us directly or via a Platform Partner including as set outin Article 5.
Article 2. General
2.1 Platform Partners and Access. We may offer the Digital Asset Services to you directly via our platformor through Platform Partners who make our Digital Asset Services available on their websites orapplications. When you access the Digital Asset Services through a Platform Partner, your use of thatplatform is also subject to the Platform Partner’s own terms, which are separate from these Terms.The Platform Partner is not our agent, and we are not responsible for its acts or omissions.
2.2 Authorization to Share and Act on Instructions. You authorize the Platform Partner and us, as yourauthorized users, to view and retrieve your transaction data and to access, operate, and transmityour instructions relating to the Digital Asset Services, consistent with these Terms, applicableService Partner or third party terms, and your separate agreement with the Platform Partner. Youacknowledge that any instructions we receive from the Platform Partner pertaining to your accountare valid, correct, and authorized transactions. We are under no obligation to verify the accuracy ofinformation or instructions received from a Platform Partner and are not liable for losses arising fromcomplying with such instructions. When you access the Digital Asset Services via our platform, youauthorize us to open or close accounts, place and withdraw orders, and take other reasonable stepsto carry out your instructions. You consent to receive and transmit financial information andinstructions electronically via the platform.
2.3 Your Representations and Warranties. You represent and warrant that:
(a) You will only use the platform and services for your own funds/account and will not sell ourservices to your customers.
(b) If you are an entity, you are duly organized, validly existing, and in good standing under thelaws of your jurisdiction of organization, and you have the full power, authority, and allnecessary consents to enter into and comply with these Terms;
(c) All information you provide to us, or a Platform Partner, is and will remain complete,accurate, and not misleading;
(d) You will promptly provide any information we or a Platform Partner request to satisfy ourdue diligence, customer verification, anti-money laundering, or other legal or regulatoryobligations; and
(e) You will comply with our Financial Crime Risk Appetite Policy, on the BVNK Help Centre onour website and all applicable laws.
2.4 Information Updates. You must immediately notify our support team if any information youpreviously provided changes. For entities, this includes any change of control, legal name, address,directors, beneficial owners, or any material change to your business or financial condition.
2.5 Prohibited Use. You agree not to use any Fiat Virtual Account for money transmission or other moneyservices business activities.
Article 3. Licensing and Contacts
3.1 We are a registered Money Services Business (NMLS ID: 2531294) and maintain licenses for moneytransmission and digital asset activities in various U.S. states. For a list of our licenses,jurisdiction-specific disclosures, and information on how to file a complaint with state regulatoryagencies, please visit our website. For our US State disclosures, please visit our website.
Article 4. Services and Functionality
4.1 Digital Asset Services. We, or the applicable Platform Partner, will provide you with the Digital AssetServices and will notify you of the specific functionality enabled for your Digital Asset Wallet and anyFiat Virtual Account, as applicable.
4.2 Custody and Title. Where you hold Digital Assets with us, all Digital Assets are held by us on yourbehalf. You grant us the right to hold your assets in pooled customer omnibus wallets and/oraccounts and to use third-party exchanges or custodians as necessary. Title to assets shall at alltimes, including during pooling, remain with you and shall not transfer to us. Any Digital Assetsrecorded in your Digital Asset Wallet and/or fiat in your Fiat Virtual Account will be deemedcustodied assets held by us for your benefit (subject to Articles 6.5 and 6.6). We and/or our PlatformPartners may benefit from such custody arrangements. Except as required by law or as otherwisepermitted by these Terms or any other terms you enter into with us, or a Service Partner, we will notsell, transfer title, lend, or hypothecate Digital Assets in your wallet unless instructed by you.
Article 5. Service Partner Provided Services
5.1 Licenses and Registrations. We maintain licenses to engage in money transmission and Digital AssetServices in many U.S. states. Where your entity is incorporated or where you reside may impactsome of the products and services we provide.
5.2 Digital Asset Service Users. In certain jurisdictions, Paxos Trust Company, NA, a national bankingassociation organized under the laws of the United States and regulated by the Office of theComptroller of the Currency, may provide the Digital Asset Wallet or Stablecoin Payout Service.Where applicable, you must accept the Paxos terms and Privacy Policy and notices to use the DigitalAsset Wallet or Stablecoin Payout Service. Subject to the following, these Terms describe ourresponsibilities to you, and your access to and certain clarifications regarding your use of the servicesthat Paxos provides to you that may not be found in the Paxos terms. Where your Digital AssetWallet is provided by Paxos, your Digital Assets are held by Paxos. If you are only using servicesprovided by Paxos and not Digital Asset Services provided by us, certain of these Terms do not applyto you, and Article 9 will apply to you, but with the words ‘pass-on to Paxos’ replacing each referenceto ‘process’.
5.3 Fiat Virtual Account Users. If you use a Fiat Virtual Account offered by one of our banking partners,Lead Bank (Lead Bank terms and Lead Bank Privacy Notices) or Cross River Bank (Privacy Policy andPrivacy Notice), you must accept the relevant bank terms (if applicable) and Privacy Notices. Subjectto the following, these Terms describe our responsibilities to you, and your access to and certainclarifications around your use of the service that the Service Partner provides to you that may not befound in their terms (if applicable). If you are only using Fiat Virtual Account services provided by aService Partner, certain of these Terms do not apply to you, and Article 9 will apply to you, but withthe words ‘pass-on to Service Partner’ replacing each reference to ‘process’.
5.4 Cardholders. If you use a spend card issued by a third party issuer linked to a Digital Asset Wallet, theSpend Card Terms agreement will govern your card use and you must accept the Spend Card Termsand the Service Partner’s terms and Privacy Notices. Additionally, the Spend Card Terms control inthe event of a conflict with these Terms, specifically as they apply to card matters. You herebyauthorize us to share personal and transaction information with the card issuer, program manager,payment card networks, processors, fraud-prevention and sanctions-screening providers, regulatorsand Platform Partner to operate the card and comply with legal and risk obligations.
5.5 Rewards. If you are opted in, allocate funds or otherwise participate in a stablecoin rewardsprogram, you agree to be bound by the Stablecoin Reward Terms found on the BVNK Help Centre ofour website.
Article 6. Using Digital Asset Services
6.1 Sending. We process properly authenticated instructions subject to standard checks, accountconfigurations, limits, and cut-off times.
6.2 Receiving. We will credit your Digital Asset Wallet after receipt, subject to our standard checks.Where such Digital Assets are intended to be taken into custody by us, they will only becomecustodied Digital Assets in accordance with Article 4.2. If we do not approve a Digital Assettransaction, the Digital Assets may be returned to the originating address. You represent and warrantthat you will not deposit Digital Assets with us on behalf of another person.
6.3 Conversions. All transactions involving a Conversion will be conducted in accordance with our OrderExecution Policy, which sets out: the basis on which we execute Conversion orders and provideConversion services and establishes the BVNK liquidity partners (execution venues and liquidityproviders) we may use, and the steps we take to obtain the best possible result for you (“ExecutionProcedures”). Any conflict or inconsistency with regard to the Execution Procedures in the OrderExecution Policy and these terms, the Order Execution Policy will prevail.
6.4 RFQ Conversions. When we receive a Conversion Request, you must provide: (a) the type ofConversion; (b) the Digital Asset or fiat you want to trade out of; (c) the Digital Asset or fiat you wantto trade into; (d) the amount to exchange; (e) the funding source details (wallet or account); and (f)the nominated settlement wallet or account. We will provide a time-limited Conversion Quote,which you will be required to accept within the specified timeframe. Conversion Quotes are notguaranteed and may be subject to change.6.4 Auto-Conversions. If such functionality is enabled, we will execute an Auto-Conversion using thefunds in your Digital Asset Wallet, Fiat Virtual Account or other account based on the platformconfiguration. The final rate applied to the Auto-Conversion and fees will be made available on theplatform. Any displayed rate is indicative, and the final rate is calculated upon our receipt of therelevant Digital Assets or Fiat funds, as applicable.
6.5 Settlement of a Conversion: When you request a Conversion order, we will operate as set out in theOrder Execution Policy. Settlement of such Digital Assets is complete only when depending on yourinstructions the Digital Assets have been credited to your Digital Asset Wallet and have becomecustodied Digital Assets in accordance with Article 4.2 or, where applicable, the Digital Assets havebeen sent to your external nominated wallet. If your Digital Asset Wallet is credited with DigitalAssets or funds prior to final settlement, those Digital Assets or funds are not custodied DigitalAssets until final settlement has occurred.
6.6 Fiat Settlement: When you request a Conversion order, we will operate as set out in the OrderExecution Policy. Settlement of such fiat is complete only when the funds have been credited to yourFiat Virtual Wallet as applicable, have settled and have become custodied in accordance with Article4.2.
Article 7. Supported Assets, Limits, and Cut-Off Times
7.1 Publication. Supported assets and fiat currencies, cut-off times, expiration periods, and limits arepublished in the Help Center or the platform and may be updated periodically.
7.2 Unsupported Assets. We expressly disclaim all liability for any loss, damage, or expense arising fromyour use, transmission, or holding of unsupported assets, including but not limited to any failure torecover, convert, or return such assets. You acknowledge and agree that if you send or attempt touse unsupported assets, you do so entirely at your own risk, and we are under no obligation to takeany action with respect to such assets, including conversion, recovery, or compensation. Further, ifyou attempt to utilize unsupported assets, we may take corrective actions at your expense.
7.3 Usage Restrictions. We and/or a Service Partner or Platform Partner may impose usage restrictions,including, but not limited to, minimum payment thresholds, transaction limits, volumes, aggregatevalues, or conversion limits, communicated via the Help Center or other channels.
Article 8. Internal Transactions and Settlement
8.1 Internal Transactions. Transactions that do not involve a fiat payment scheme or on-chain validationmay be processed and settled internally. Statutory settlement finality rules do not apply to InternalTransactions. An Internal Transaction is deemed settled upon completion of our internal processes. Ifa precise settlement point on the date when the actual transfer happens cannot be determined, wewill establish a determination in our discretion.
Article 9. Instructions
9.1 Your Instructions. You authorize us to process your properly authenticated and formattedinstructions submitted via the platform. You represent and warrant that all information providedeither directly to us or via a Platform Partner is accurate, valid, complete, and authorized.
9.2 Delays or Declines. We may delay or decline to process instructions: (a) if you do not have sufficientfunds or assets; (b) if you exceed applicable limits; (c) if the instruction is unclear or incomplete andyou do not promptly provide requested information; (d) if there is a genuine dispute over ownershipof, or entitlement to, funds or assets; (e) if your access to the platform has been suspended orterminated; (f) if we suspect fraud or illegal activity; (g) if processing would breach law, a partneragreement, or scheme rule; (h) if you are in breach of these Terms, a Service Partner agreement, oryour Platform Partner agreement; or (i) for any other reason as determined by us or applicable law.
9.3 Error Correction and Unauthorized Activity. If fiat or Digital Assets are credited to or debited fromyour account or wallet by mistake, you authorize us to immediately process (if a Service Partner isinvolved) or debit, reverse, or otherwise adjust your account or wallet to correct the error. If wedetermine we have incorrectly executed a transaction due to our error, we will, where possible, actaccordingly to restore to the correct state. If you suspect an unauthorized transaction, contact us oryour Service Partner immediately. We will investigate and, where possible, seek recovery. If youmade a mistake in your instruction, we will, at our discretion, use reasonable efforts to recover fundsor Digital Assets, and we may charge a fee for recovery.
Article 10. Fees, Offset, and Taxes
10.1 Fees. Fees (including any applicable blockchain network fees) are displayed by us or the PlatformPartner and may change. By using the Digital Asset Services, you accept the then-current fees. Othercosts, fees, charges, or taxes outside our control may apply (for example, fees charged by a PlatformPartner).
10.2 Partner Deductions. Where fees are to be paid to a Platform Partner, you authorize and instruct usto allow the Platform Partner to deduct relevant amounts automatically in accordance with theseTerms.
10.3 Setoff and Offset Rights. Subject to law, we may set off, transfer, or apply sums we hold on yourbehalf - including balances in your wallets or accounts, in or toward satisfaction of liabilities and feesowed to us, a Service Partner, or the Platform Partner related to the Digital Asset Services when due.
10.4 Taxes. Each party is responsible for its own taxes associated with the Digital Asset Services.
Article 11. Security and Credentials
11.1 Security. You agree to maintain the confidentiality of all non-public, confidential, or proprietaryinformation ("Confidential Information") disclosed by us in connection with the Digital AssetServices, whether disclosed orally, in writing, or by any other means, and whether marked asconfidential or not, provided such information should reasonably be understood to be confidential.You shall use at least the same degree of care to protect our Confidential Information as you use toprotect your own confidential information of like importance, but in no event less than acommercially reasonable standard of care. You shall not disclose Confidential Information to anythird party except to your affiliates, employees, agents, or professional advisors who have a need toknow such information for the purpose of performing under these Terms and who are bound byconfidentiality obligations at least as protective as those herein. The obligations in this section donot apply to information that: (a) is or becomes publicly available through no fault of you; (b) islawfully received from a third party without breach of any confidentiality obligation; (c) isindependently developed by you without use of or reference to our Confidential Information; or (d)is required to be disclosed by law, regulation, or court order, provided that the you give promptnotice to us (where legally permitted) and cooperate in any efforts to limit such disclosure. Theobligations of confidentiality shall survive termination of these Terms for a period of three (3) years,except with respect to trade secrets, which shall be protected for so long as they remain tradesecrets under applicable law.
11.2 Credentials. You must keep platform credentials secure and notify us immediately of any suspectedcompromise. You are responsible for all activities under your credentials.
Article 12. Data Protection and Privacy
12.1 Controller Role. We act as a data controller for personal data we process to provide the Digital AssetServices and manage such data in accordance with applicable data protection laws and our PrivacyPolicy. If you are an individual, we may collect and retain personal data such as your name, emailaddress, residential address, phone number, date of birth, taxpayer identification number,government-issued ID, bank account statements, crypto wallet addresses you control, andinformation about your intended use of the Services and source of funds. If you are an entity, wemay collect personal data of your authorized representatives to provide the Services. Personal datayou provide must be accurate, complete, and up to date.
Article 13. Liability and Disclaimers
13.1 Direct Damages Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENTWILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS EXCEEDTHE TOTAL FEES PAID OR PAYABLE BY YOU TO US FOR THE SERVICES IN THE TWELVE (12) MONTHSIMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13.2 Exclusions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHERPARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSTREVENUE, LOST PROFITS, LOSS OF DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR INCONNECTION WITH THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT,TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO LIABILITYARISING FROM A PARTY'S FRAUD OR WILLFUL MISCONDUCT, OR TO THE EXTENT APPLICABLE LAWDOES NOT PERMIT SUCH EXCLUSION OR LIMITATION.
13.3 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ALLRELATED MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUTWARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WEEXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIEDWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ANDNON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED,ERROR-FREE, OR SECURE, OR THAT ANY DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTENINFORMATION OR ADVICE PROVIDED BY US OR OUR AUTHORIZED REPRESENTATIVES SHALL CREATEANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
Article 14. Indemnification
14.1 Your Indemnity. You will defend, indemnify, and hold harmless us, our affiliates, and our respectivepersonnel from and against any and all losses, damages, liabilities, fees, taxes, penalties,settlements, and expenses (including attorneys’ fees) arising out of or in connection with any claimrelated to: (a) any infringement or misappropriation of a party’s intellectual property rights arisingfrom any data or information provided by you; (b) any claim that any data as provided by you to usviolates the privacy rights of a third party; or (c) your violation of applicable law.
Article 15. Risk Disclosures and Release
15.1Risk Disclosure. You acknowledge and agree that you have read our risk disclosures found on ourwebsite. Additionally, you acknowledge and agree that digital assets are volatile and could lose valueand unless expressly stated, neither fiat nor digital assets are insured by the FDIC or SIPC. Considerwhether digital assets are appropriate for you. Digital assets are not guaranteed by us and aresubject to many risks, including total loss arising from, but not limited to, the following:
(a) regulatory actions or inquiries which could impact our ability to operate or your ability to use theDigital Asset Services;
(b) technological progression or failures, such as the development of quantum computers;
(c) forks or network disruptions;
(d) software or hardware malfunctions, or third-party hacks, which may cause your Digital Assets ordata to be stolen, copied, or accessed without your authorization;
(e) changes to applicable laws; and
(f) volatility of Digital Asset values.
15.2 Release of Claims. You assume full responsibility and agree that we will not have any responsibilityor liability for any losses or other harm you may incur in connection with any or all such risks. Wehave no responsibility to alert you of all these risks. You hereby irrevocably waive, release, anddischarge any and all claims, whether known or unknown to you, against us, our affiliates, and anythird-party service provider, and any of their affiliates and respective shareholders, members,directors, officers, employees, attorneys, agents, representatives, service providers, suppliers, andother business partners related to any of the risks set out in these Terms. To the extent permitted bylaw, you release claims related to such risks and waive California Civil Code § 1542 (and similar laws).
Article 16. Changes to These Terms
16.1 Updates. We may, from time to time, make changes to these Terms at our sole discretion. Unlessstated otherwise and subject to applicable law, any change takes effect immediately when postedvia the platform or our website. If you disagree with an update, you may terminate in accordancewith these Terms.
Article 17. Suspension, Termination, and Refunds
17.1 Suspension. We may suspend or restrict access to the Digital Asset Services for reasons including,but not limited to: (a) if we reasonably suspect unauthorized or fraudulent use; (b) to protect you,us, our Platform Partners, Service Partners, or payment providers from security, financial crime,operational, or legal risks; (c) if you have outstanding fees; (d) for non-compliance with these Terms,any Service Partner’s terms, your Platform Partner agreement, or our policies; (e) if required by aregulator, law enforcement, a Service Partner, a Platform Partner, or a payment provider; (f) anyother reason we reasonably determine. We may provide prior notice when reasonable andpermitted by law.
17.2 Termination. You may terminate at any time by contacting support. We may terminate immediatelyin specified cases (including serious breach, suspicion of unlawful activity, insolvency, prolongedsuspension, provision of false or misleading information, failure to reimburse a negative balance, orany other reason in our discretion). Otherwise, we can terminate for convenience by giving you 1week's notice. If your separate agreement with a Platform Partner or Service Partner terminates,these Terms may also, in our discretion, terminate on the same date.
17.3 Return of Funds and Assets. On termination and closure of your Digital Asset Wallet (if applicable),we may take actions required by law and, where we do not have a Digital Asset withdrawal addresson file, may sell remaining Digital Assets and return the net proceeds (less permitted fees,discounts, rebates, or damages) to your nominated fiat account. We may be required to treatdormant balances as unclaimed property under escheat laws. We will use
Article 18. DISPUTE RESOLUTION, BINDING ARBITRATION AND WAIVER OF CLASS ACTION
18.1. Please read the following paragraphs carefully because they waive any right to participate in anyclass action or other representative action or proceeding. Unless you opt out of arbitration byfollowing the instructions below, this paragraph also requires you to arbitrate certain disputes andlimits the manner in which you can seek relief, including by precluding you from suing in court orhaving a jury trial. No class or representative actions or arbitrations are allowed under thisAgreement.
18.2. No Class Actions. Any claim, controversy or dispute arising out of or related to this Agreement orany Digital Asset Services, including claims related to privacy and data security (each, a “Dispute”) ispersonal and will be resolved solely through individual action. No Dispute will be brought as, orsubsequently joined with or converted into, a class action, class arbitration, or any other type ofrepresentative proceeding. You agree that any arbitration under this Agreement will take place onan individual basis; class arbitrations and class actions are not permitted, and you are agreeing togive up the ability to participate in a class action. The arbitrator will have authority to awardtemporary, interim, or permanent injunctive relief or relief providing for specific performance ofthis Agreement, but only to the extent necessary to provide relief warranted by the individual claimbefore the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in anycourt having jurisdiction thereof, which the parties agree shall include any federal or state courtlocated in New York County, New York.
18.3. Arbitration of Disputes. With only limited exceptions as described in Article 18, all Disputesbetween you and us must be resolved by binding arbitration and not in a court of generaljurisdiction. By agreeing to binding arbitration both you and we waive any and all right to a jury trialor to participate in a class action. Your agreement to this Agreement affects interstate commerceand the enforceability of this Article 18 will be substantively and procedurally governed by theFederal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”), to the maximum extent permitted byapplicable law.
18.4. Notice of Dispute. For any Dispute you have against us, you agree to first contact us and attempt toresolve the claim informally by sending a written notice of your claim. The notice must: include yourname, address, email address, and telephone number; describe the nature and basis of the Dispute;and set out the specific right sought. Any notice by us to you will be similar in form to thatdescribed above. If you and we cannot reach an agreement to resolve the Dispute within thirty (30)days after receiving such notice, either party may submit the Dispute to binding arbitration inaccordance with this Article 18.
18.5. Arbitrator Selection and Rules. Arbitration of Disputes will be administered by Judicial DisputeResolution LLC, a Washington limited liability company (“JDR”), and resolved through confidential,binding arbitration before a single, mutually agreed arbitrator from JDR. If the parties cannot agreeon an arbitrator from JDR, the arbitrator shall be selected by JDR. The arbitration, althoughadministered by JDR, shall be conducted in accordance with the American Arbitration AssociationCommercial Arbitration Rules (“AAA Rules”) modified as appropriate to refer to JDR rather thanAmerican Arbitration Association (“AAA”) as the administrator of the proceedings and to removeany requirement to have AAA review, certify or register this Agreement. You either acknowledgeand agree that you have read and understand the AAA Rules or waive your opportunity to read theAAA Rules and waive any claim that the AAA Rules are unfair or should not apply for any reason.The AAA Rules are incorporated by reference and in the event of any conflict between thisAgreement and the AAA Rules, this Agreement shall prevail.
18.6. Scope and Authority. As limited by the FAA, this Agreement, and the AAA Rules, the arbitrator willhave exclusive authority to make all procedural and substantive decisions regarding any dispute,including the power to determine the question of arbitrability and resolve any Dispute aboutwhether a claim or action is excepted from arbitration pursuant to Article 18, and to grant anyremedy and award any relief that would be available in court for the claims presented in arbitration.The arbitrator may only conduct an individual arbitration and may not consolidate more than oneindividual’s claims, preside over any type of class or representative proceeding or preside over anyproceeding involving more than one individual. Judgment on the award rendered by the arbitratormay be entered in any court having jurisdiction thereof. The arbitrator is bound by this Article 18.
18.7. Hearing and Location. Whether to hold a hearing, the type of hearing (telephonic or in-person), anda party’s right to request a hearing where the AAA Rules otherwise call for resolution of the Disputesolely because of documents submitted by the parties will all be determined in accordance with theAAA Rules. Unless otherwise ordered by an arbitrator or required by AAA Rules, all in-personarbitration hearings will be held in New York County, New York.
18.8. Confidentiality. The arbitration may allow for the discovery or exchange of non-privilegedinformation relevant to the Dispute. The arbitrator, we, and you will maintain the confidentiality ofany arbitration proceedings, judgments, and awards, including information gathered, prepared, andpresented for purposes of the arbitration or related to the Dispute. The arbitrator will have theauthority to make appropriate rulings to safeguard confidentiality, unless applicable law provides tothe contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary toprepare for or conduct the arbitration hearing on the merits, in connection with a court applicationfor a preliminary remedy, or in connection with a judicial challenge to an arbitration award or itsenforcement, or to the extent that disclosure is otherwise required by applicable law or judicialdecision.
18.9. Fees and Costs. The party that initiates arbitration will pay any administrator filing fee and you andwe will share equally any other fees or costs charged by the administrator or arbitrator. Each partywill be responsible for its own costs of counsel and other costs associated with arbitration of theDispute.
18.10. Opt-Out. You have the right to opt out of binding arbitration within 30 days of the date you firstaccepted this Agreement by emailing your decision to opt out to the Platform Partner. In order tobe effective, the opt-out notice must include your full entity name and address and clearly indicateyour intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeingto resolve Disputes in accordance with this Article 18. The class action waiver in Section 18.2 above,and the time bar in Section 18.12 below will apply notwithstanding you opting out of arbitration.
18.11. Excepted Claims. Notwithstanding Section 18.3, there is no requirement to arbitrate, and you andwe may bring: (a) an individual small claims action to the small claims court in your and ourrespective county of residence as provided in the AAA Rules; or (b) an action seeking only atemporary restraining order or injunction for alleged breach of Confidential Information obligationsor for alleged infringement or misappropriation of intellectual property rights in any court havingjurisdiction; provided that, in each case, the action is brought as an individual action and not on aclass or representative basis.
18.12. Time Bar. Any Dispute must be filed within one year after the relevant claim arose; otherwise, theDispute is permanently barred, which means you and we will not have the right to assert the claim.
18.13. Severability. If any portion of Article 18 is found to be unenforceable or unlawful for any reason, (a)the unenforceable or unlawful provision shall be severed from this Agreement; (b) severance of theunenforceable or unlawful provision shall have no impact whatsoever on the remainder of thisArticle 18 or the parties’ ability to compel arbitration of any remaining claims on an individual basispursuant to this Article 18 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 ofcompetent jurisdiction and not in arbitration, and the parties agree that litigation of those claimsshall be stayed pending the outcome of any individual claims in arbitration. Further, if any part ofthis Article 18 is found to prohibit an individual claim seeking public injunctive relief, that provisionwill have no effect to the extent such relief is allowed to be sought outside of arbitration, and theremainder of this Article 18 will be enforceable
Article 19. Miscellaneous
19.1 General. Unless these Terms say otherwise, communications relating to the Services may be madethrough the platform or handled by our support team or the Platform Partner’s support team. Wemay provide communications through the platform or to the email you provide; please reviewplatform messages regularly. We will assume you have read a message if it is available when you logon to the platform. The most up-to-date version of these Terms and Service Partner terms isavailable via the platform or our website. You may not assign these Terms without our consent; wemay assign these Terms and use subcontractors or Service Partners and remain responsible for theirperformance. In the event of a breach of these Terms, we are entitled to seek injunctive relief in anycourt of competent jurisdiction without the requirement to post bond or other security. TheseTerms and any applicable partner terms comprise the entire agreement for the Digital AssetServices. This agreement does not create a partnership, franchise, joint venture or agencyrelationship between the parties (unless otherwise provided for). If any provision is unenforceable,the remainder remains in effect. No waiver is effective unless in writing. Certain states requireadditional disclosures, which are available on our website. Neither you nor we intend that any termof these Terms will be enforceable by any person who is not a party to these Terms.