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Xapo Terms of Use Last Updated: October 23, 2020 PLEASE READ THESE TERMS OF USE (“TERMS”) CAREFULLY. BY OPENING AN ACCOUNT, CLICKING TO ACCEPT, OR BY ACCESSING OR USING OUR SERVICES (AS DEFINED HEREIN), YOU AGREE TO BE BOUND BY THESE TERMS OF USE IN THEIR ENTIRETY AND ALL TERMS INCORPORATED BY REFERENCE. IF ANY TERM OR CONDITION OF THESE TERMS IS UNACCEPTABLE TO YOU, PLEASE DO NOT VISIT, ACCESS, OR USE XAPO.COM OR ANY OF OUR AFFILIATED SERVICES. 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 the United States or a foreign jurisdiction (collectively, “Entity”). If you are using our Services on behalf of an Entity, (a) all references to “you” or “user” throughout these Terms will include that Entity, (b) you confirm that you are authorized 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 responsible to us. Please note that there may be specific terms or conditions applicable to entities detailed herein. THE ARBITRATION CLAUSE IN SECTION 22 GOVERNS RESOLUTION OF CERTAIN DISPUTES. #1. SCOPE These are the Terms of Use of Xapo Inc., which is referred to in these Terms as “Xapo”, “we” or “us”. These Terms apply to any access and use of our website at xapo.com (the “Website”), our online services, our Android and iOS mobile applications (the “Apps”), and any of our services related to or utilizing any of the foregoing, including, without limitation, the custody of Digital Currency, which we refer to in these Terms, collectively, as our “Services.” These Terms govern both individuals and entities that access and/or use the Services even if such individual or Entity does not register a user account. #2. MODIFICATION OF TERMS AND TERMINATION We may make changes at any time to these Terms, including, but not limited to, 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. If you do not agree to any amended Terms, you must discontinue using the Services. If you do not agree with the changes we make, we may close your Xapo Account at any time within the fourteen (14) days notice period without a charge. You will be deemed to have accepted our changes if you do not notify us that the changes are not accepted during this period and the changes will apply to you. Termination. Subject to this clause, you are entitled to end this Agreement with us and close your Xapo Account at any time, without charge, by contacting our support team. Before we close your Xapo Account you must repay all the outstanding amounts owed to us and withdraw any remaining funds at the time of closure. You must also delete the Xapo App from your mobile device. Once closed, you will not be able to use, access or reactivate your Xapo Account. Xapo is entitled to close your Xapo Account and terminate our Agreement by providing you with fourteen (14) days written notice. Our termination of our Agreement will not affect any of our rights or obligations arising under these Terms. We may also close your Xapo Account immediately and without notifying you of our decision if any of the following happens: <ul> <li>You deliberately use your Xapo Account for criminal or fraudulent purposes or someone else is using your Xapo Account without your authority;</li> <li>There has been no transaction on your Xapo Account for more than 24 consecutive months;</li> <li>We do not have sufficient information to operate your Xapo Account or it turns out you were not entitled to open a Xapo Account in the first place;</li> <li>Your behaviour towards our staff makes it difficult for us to deal with you (for example, you are threatening or abusive towards our staff);</li> <li>You are no longer entitled to have a Xapo Account with us or you do not accept any revised Agreement or other applicable terms;</li> <li>You do not pay any fees or charges on time;</li> <li>You go into bankruptcy, insolvency, enter into an individual voluntary arrangement, have a debt relief order or trust deed lodged against you or enter into any other form of analogous circumstances;</li> <li>You die. or</li> <li>You break any of the terms of our Agreement in any way.</li> </ul> Any terms which by their nature should survive, will survive the termination of our Agreement. #3. ELIGIBILITY AND AGREEMENT 3.1. General Requirements. The Services are intended solely for users who are 18 or older and who satisfy the criteria described in these Terms. You represent and warrant that you: (a) are of legal age to form a binding contract (at least 18 years old). (b) have not previously been suspended or removed from using our Services. (c) are not identified as a “Specially Designated National” by the Office of Foreign Assets Control. (d) are not placed on the U.S. Commerce Department’s Denied Persons List. and (e) have full power and authority to agree to these Terms. 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 that is embargoed by the United States or where your use of the Services would be illegal or otherwise violate any applicable law. You represent and warrant that you are not a 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 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 use of the Services are not effective or can be bypassed. 3.3. Limited License. We grant you a limited, nonexclusive, nontransferable license, subject to these Terms, to access and use our Website, Apps, content and Services solely for approved purposes as permitted by Xapo from time to time. Any other use of our Website, Apps, content and Services is expressly prohibited and all other right, title, and interest in our Website, Apps, content and Services is exclusively the property of Xapo and its licensors. You agree you will not copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of our Website, Apps, content and Services. If you use our Website, Apps, content and 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. In addition, you will create and authorize unique account credentials that may include one or more username, password, pin code, API key, two-factor authentication instance or other access controls (collectively “Account Credentials”). You will: (a) create Account Credentials. (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 Account Credentials from unauthorized access or use. (e) promptly notify Xapo if you discover or suspect any unauthorized 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 authorized or unauthorized 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 authorize Xapo to accept and rely on, any agreements, instructions, orders, authorizations and any other actions made, provided or taken by anyone who has accessed or used your Xapo Account regardless of whether the access is authorized or unauthorized. Xapo assumes no responsibility for any loss that you may sustain due to compromise of Account Credentials due to no fault of Xapo and/or failure to follow or act on any notices or alerts that we may send to you. 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 Account Credentials. The first sentence of this Section 4.3 will continue to apply to any other Account Credentials, and any suitable password issued to replace the compromised Account Credentials. #5. SUSPENDED ACCOUNTS Xapo reserves the right in its sole discretion to temporarily or permanently suspend and/or Xapo Accounts. This account blocking or suspension may be a consequence of, among other things, inconsistent information regarding your identity (which are reasonable on the sole discretion of Xapo), a pending compliance or security review, the request of a third party, the request and/or order of an authority, governmental body, regulator, justice Entity, police, etc., which in the sole discretion of Xapo are reasonable. YOU UNDERSTAND AND AGREE THAT YOU MAY NOT BE ABLE TO ACCESS FUNDS IF YOUR XAPO ACCOUNT IS SUSPENDED, BLOCKED OR IS OTHERWISE LIMITED, AS DETAILED IN THIS SECTION 5. 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 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 which is reasonable in the sole discretion of Xapo. #6. IDENTITY VERIFICATION Xapo may, in its discretion, require identity verification and other screening procedures with respect to you or transactions associated with your Xapo Account. These verification and screening procedures may include, without limitation, checking the information you provide against the Specially Designated Nationals and Blocked Persons list maintained by the U.S. Office of Foreign Assets Control, the U.S. Department of Commerce Denied Persons list, and any similar list issued by any U.S. governmental authority prohibiting or limiting business activities or transactions with any persons. You may be required to provide Xapo with certain personal information, including, but not limited to, your name, address, telephone number, email address, date of birth, taxpayer identification number, government identification number, photograph of your government-issued ID or other photographic proof of your identity, information regarding your business, and information regarding your bank account. You hereby authorize Xapo, directly or through a third party, to make any inquiries Xapo considers necessary to verify your identity or protect against fraud, including but not limited to: (a) query identity information contained in public reports (e.g., your name, address, past addresses, or date of birth). (b) query account information associated with your linked bank account (e.g., name or account balance). and (c) take action Xapo reasonably deems necessary based on the results of such inquiries and reports. You further authorize all third parties to which such inquiries or requests may be directed to fully respond to such inquiries or requests. Xapo will have no liability or responsibility for any permanent or temporary inability to access or use any Services, including your inability to interact with service providers through the Site, as a result of any identity verification or other screening procedures. #7. OUR PRIVACY POLICY Please refer to our Privacy Policy, which is incorporated herein and is located at static.xapo.com/terms/privacy-policy.html. Our Privacy Policy describes how we collect, use, and share your personal information. #8. DIGITAL CURRENCY The term “Digital Currency” as used in these Terms refers to cryptocurrencies, such as bitcoin. #9. 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, including without limitation the following: <ul> <li>Digital Currency is not legal tender, is not backed by the government, and accounts and value balances are not subject to Federal Deposit Insurance Corporation or Securities Investor Protection Corporation.</li> <li>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.</li> <li>The nature of Digital Currency means that any technological difficulties experienced by Xapo may prevent the access or use of a customer’s Digital Currency.</li> <li>Any Digital Currency and its Underlying Technology may be vulnerable to attacks on the security, integrity or operation of the Digital Currency unit or its Underlying Technology (“Attacks”), including Attacks using computing power sufficient to overwhelm the normal operation of a blockchain or other Underlying Technology.</li> <li>The nature of Digital Currency may lead to an increased risk of fraud or cyber attack.</li> <li>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.</li> <li>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.</li> <li>Some Digital Currency transactions shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that the customer initiates the transaction.</li> <li>The value of Digital Currency may be derived from the continued willingness of market participants to exchange fiat currency for Digital Currency, which may result in the potential for permanent and total loss of value of a particular Digital Currency should the market for that Digital Currency disappear.</li> <li>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.</li> <li>The volatility and unpredictability of the price of Digital Currency relative to fiat currency may result in significant loss over a short period of time.</li> <li>Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of Digital Currency. Government regulation of Digital Currency is unsettled and rapidly evolving.</li> <li>Xapo may not be a regulated entity in your jurisdiction, and your Digital Currency or fiat currency held with Xapo may not be regarded as a deposit or be eligible for deposit insurance programs.</li> <li>Any bond or trust account maintained by Xapo for the benefit of its customers may not be sufficient to cover all losses incurred by customers.</li> <li>There is no assurance that a person who accepts a Digital Currency as payment today will continue to do so in the future.</li> <li>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). On many Digital Currency networks, such as Bitcoin, transactions are generally irreversible and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable.</li> </ul> The risks described in this Section 9 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. You waive application of Section 1542 of the Civil Code of the State of California, or any similar statute or law of any other jurisdiction. Section 1542 reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You represent and warrant that you have: (a) 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 (b) 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. USER CONTENT Our Services may allow you and other users to create, post, store and share content, including messages, texts, photos, videos, software and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Xapo. You grant Xapo a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others. You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice. #11. GENERAL SERVICE TERMS 11.1. Support for Bitcoin Only. The only Digital Currency supported by Xapo is bitcoin. If you want to store, transfer and/or use any Digital Currency other than bitcoin, 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, 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. 11.2. The Xapo Services. Xapo provides a way to store, use, and manage bitcoins, using our wallet service, which we call Xapo Wallet, and the Xapo deep cold storage service, which we call Xapo Vault. 11.2.1. Purchase and Sale of Bitcoins. To purchase from or sell bitcoins to Xapo, simply click on the red [BUY BITCOINS] button or after logging in to our Website or Apps. You will be taken through a process that locks in a bitcoin price for 300 seconds, then displays different methods, depending on your location and some other factors, to either (a) transfer fiat currency to Xapo pay for your purchased bitcoin or (b) withdraw fiat currency as proceeds from your sold bitcoin. The purchase, sale and fiat currency transfer options are personalized to each user based upon certain factors involved, so only specific payment options are shown for each purchase or sale order. Xapo does not charge fees for buying or selling bitcoins, but processing fees may apply depending on the payment method. The price level at which we sell bitcoins to or purchase bitcoins from our customers is the price listed on our Website or Apps as the Xapo price. You are solely responsible for ensuring the accuracy of the information included when you initiate your transfer of fiat currency, including by wire transfer or ACH transaction. This includes the account number, bank routing number, your Xapo-specific reference number and any other information requested by us. To withdraw Digital Currency from your Xapo Wallet, simply click on the TRANSFER button after logging in. You will be taken through a process that will display a quote of the value assigned by Xapo to one bitcoin in your selected fiat currency, allowing you to transfer such value to the selected account. After accepting the quote, we will display a message indicating that the transfer to the selected account is being processed. Please review carefully our current Exchange Transactions Rules here. When funding or withdrawing funds from 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 11. Xapo reserves the right to delay or not process incoming or withdrawing wires and/or other transfers or payment processor method for any reason, including to verify that the wire or other transfer was actually initiated by you or where required or recommended by applicable 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. OTC Transactions 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 22 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. 11.2.2. Processing Fees. Please review carefully our current processing fees here. <ul> <li>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.</li> <li>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.</li> </ul> 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. 11.2.3. 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 Account Credentials 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: (i) 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. (ii) 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. 11.3. 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 withdraw option of any Digital Currency or value other than bitcoin. 11.4. 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. 11.5. 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. 11.6. 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 Xapo system for a significant amount of bitcoins may be delayed. Before processing any transaction(s), Xapo reserves the right to take 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. 11.7. 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. 11.8. 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. 11.9. Unacceptable Use or Conduct. You will not: <ul> <li>violate these terms or any law, regulation, contract, intellectual property or other third-party right, or commit a tort while using the Services;</li> <li>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;</li> <li>use the Services to pay for, support, or otherwise engage in any illegal gambling activities, fraud, money-laundering, terrorist activities, or any other illegal activities;</li> <li>use the proceeds for illegal gambling activities, fraud, money-laundering, terrorist activities, or any other illegal activities to fund Digital Currency or fiat currency transfers to Xapo or your Xapo Wallet or Xapo Vault accounts;</li> <li>use any robot, spider, crawler, scraper, or other automated means or interface not provided by Xapo to access the Services or to extract data;</li> <li>use or attempt to use another user’s Xapo Account without authorization;</li> <li>attempt to circumvent any content filtering techniques Xapo employs, or attempt to access any service or area of the Services that you are not authorized to access;</li> <li>introduce to the Services any malware, virus, trojan worms, logic bombs, or other harmful material;</li> <li>develop any third-party applications that interact with our Services without our prior written consent, or unless otherwise agreed;</li> <li>provide false, inaccurate, or misleading information;</li> <li>post content or communications that are, in our sole discretion, libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable;</li> <li>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;</li> <li>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</li> <li>encourage or induce any third party to engage in any of the activities prohibited under this Section 11.</li> </ul> If you are suspended or blocked by Xapo from accessing the Xapo Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Use of our Services in connection with any transaction involving illegal products or services is prohibited. Xapo reserves the right to temporarily or permanently suspend your Xapo Account or otherwise restrict your use of the Xapo Services if any violation of this Section 11 occurs. 11.10. Authorized Uses of Our Services. You are permitted to use our Services, only as we have authorized. You are responsible for ensuring that the information in your Xapo Account profile is current and correct, including, as applicable, your Entity business address, 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 Account Credentials 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 through our Website or Apps. The loss or compromise of this Xapo Account information may result in unauthorized access of your Xapo Account, which may result in loss or theft of any bitcoins 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 site or Xapo Services where you experienced that problem. You are responsible for (i) immediately notifying us of any unauthorized use of your Account Credentials 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 Xapo Services. We have no responsibility for any loss that you suffer as a result of failing to comply with this Section 11 or your failure to follow or act on any notices or alerts that we may send to you. 11.11. Using SMS/Text. To use the Xapo Services, whether as an individual accountholder or a person authorized on behalf of an Entity accountholder, 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. 11.12. 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. 11.13. 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 or fiat 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, including Xapo balances or other linked accounts, in any amount necessary to complete the transaction. For customers who had a Xapo debit card or deposit account, transactions resulting in a negative balance in your deposit account may be resolved by Xapo, in its sole discretion, debiting your other payment methods, including Xapo balances or other linked accounts, in any amount necessary to restore your deposit account to a positive or event balance. 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. 11.14. 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 support@xapo.com. 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. #12. INTELLECTUAL PROPERTY 12.1. 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 12 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 Apps without our permission. We reserve all rights not expressly granted herein. 12.2. 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 Apps are the property of their respective owners. 12.3. 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 nonconfidential. 12.4. Repeat Infringer Policy. Copyright Complaints. In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Xapo’s by email at legal@xapo.com. Please see 17 U.S.C. § 512(c) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Xapo for certain costs and damages. #13. 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. Our Website or Apps may contain links to websites owned or operated by third-parties. Such links are provided for your reference only. Xapo does not monitor or control outside websites. 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. #14. 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 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 not intercepted, that the Services and other capabilities offered from 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 14 may not apply to you. #15. 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. #16. 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. #17. INDEMNIFICATION You agree to indemnify, defend and hold us, our employees, agents, consultants, subsidiaries, partners, affiliates, and licensors, harmless against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals) arising from or in any way related to your use of our Services, your violation of these Terms, or your violation of any rights of any other person or Entity. #18. LIMITATION OF LIABILITY IN NO EVENT WILL WE, OUR LICENSORS, SERVICE PROVIDERS OR SUBCONTRACTORS (IF ANY) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, OR THE PERFORMANCE OR OPERATION OF OUR SERVICES, YOUR ACCESS TO, DISPLAY OF, USE OF THE SERVICES, OR WITH DELAY OR INABILITY TO ACCESS, DISPLAY OR USE THE SERVICES, ANY COMPUTER VIRUSES, INFORMATION, SOFTWARE, LINKED SITES, PRODUCTS OR SERVICES OBTAINED THROUGH THE SERVICES, OR THE ACT OR OMISSION OF ANY BUSINESS USING OUR SERVICES OR OTHER THIRD PARTY, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE, OUR LICENSORS, SERVICE PROVIDERS OR SUBCONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 18 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. 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. #19. RELEASE To the fullest extent permitted by applicable law, you release Xapo from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code §1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” #20. 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 the United States and other countries, where you may not have the same rights and protections as you do under local law. #21. SEVERABILITY If, for any reason, a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. #22. COMPLAINTS. ARBITRATION OF DISPUTES Except for disputes in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents, you and Xapo waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against Xapo or relating in any way to the Services, you agree to first contact Xapo and attempt to resolve the complaint or claim at the following: Xapo, Inc. 364 University Avenue Palo Alto, CA 94301, USA Phone: +1 (844) 218-9276 support@xapo.com New York customer complaints may also be brought to the attention of the New York State Department of Financial Services at: New York State Department of Financial Services One State Street New York, NY 10004-1511 Phone: (800) 342-3736 www.dfs.ny.gov Complaints or claims must take the form of a written notice (“Notice”) to Xapo at the above email address. The Notice must (a) include your name, residence address, email address, and telephone number. (b) describe the nature and basis of the claim. and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Xapo cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in New York, New York, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason. 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. You and Xapo agree that these Terms affect interstate commerce and that the enforceability of this Section 22 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. §1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. 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. You and Xapo agree that for any arbitration you initiate, you will pay the filing fee and Xapo will pay the remaining JAMS fees and costs. For any arbitration initiated by Xapo, Xapo will pay all JAMS fees and costs. You and Xapo agree that the state or federal courts of the State of New York and the United States sitting in New York, New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. 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 22 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 22 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 22. 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 22 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 22 will be enforceable. #23. GOVERNING LAW AND VENUE Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of New York, New York, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of New York and the United States, respectively, sitting in New York, New York. #24. UNCLAIMED PROPERTY. DEATH OF ACCOUNT OWNER 24.1. 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 bitcoins it is holding in custody for you in accordance with applicable unclaimed property laws. Xapo reserves the right to deduct a dormancy fee or other administrative charges from such unclaimed funds, as permitted by applicable law. Your Xapo Account may be deemed inactive after over 12 months of no activity. If your Xapo Account is deemed inactive, Xapo reserves the right to charge a one-time $5.00 dormancy fee on a per account basis. 24.2. Death Of Account Owner. In the event that an Xapo Account owner dies or is otherwise incapacitated, Xapo will cooperate with court orders or a duly authorized estate executor operating in accordance with applicable probate laws. 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 or money from a Xapo Account (a) provide evidence reasonably satisfactory to Xapo that demonstrates entitlement to a transfer and (b) comply with the Identity Requirement provisions set forth in Section 6 hereof. #25. NO WAIVER Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of that right or provision. #26. 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 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. #27. STATE LICENSE DISCLOSURE New York Xapo holds a license issued by the New York State Department of Financial Services (“NYDFS”) to engage in virtual currency business activity. If you have a complaint, please contact us at support@xapo.com or (844) 218-9276. New York consumers may also direct unresolved complaints directly to NYDFS at the NYDFS Consumer Complaint Portal or by contacting the NYDFS as follows: NYDFS Consumer Assistance Unit, One Commerce Plaza, Albany, NY 12257, 1-800-342-3736. Washington Xapo holds a license issued by the State of Washington Department of Financial Institutions to engage in virtual currency business activity. <ul> <li>A schedule of all fees and charges for the Services may be found here.</li> <li>The Services and Digital Currency held in Xapo Wallet and Xapo Vault are not insured or guaranteed by an agency of the United States, such as the Federal Deposit Insurance Corporation or Securities Investor Protection Corporation or by private insurance against theft or loss, including cybertheft or theft by other means.</li> <li>Transactions in Digital Currency are irrevocable, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Additionally, the nature of Digital Currency may lead to an increased risk of fraud or cyber attack, and the value of your Digital Currency stored with Xapo may be lost. Fraudulent transactions may result in the loss of your Digital Currency or money with no recourse.</li> <li>Xapo is not liable for unauthorized, mistaken, or accidental transfers, and it cannot reverse Digital Currency transactions submitted to a Digital Currency network. See Section 11.5. You are responsible for maintaining the security of your Account Credentials. See Section 4.3.</li> </ul>