User Agreement - USA
Last updated: January 24th, 2023
Welcome to MoonPay. This is a User Agreement between you (also referred to herein as “Client,” “User,” or “Customer”) and Eighteenth September Ltd, a company organized under the laws of The Republic of Seychelles (“MoonPay,” “we,” “us,” or “our”). This User Agreement (the “Agreement”) governs your use of the services provided by MoonPay (the “MoonPay Services” or “Services”) described below. By signing up to use an account (including any website, web widget, API, mobile applicable, or any other similar platform owned, controlled, operated or offered by MoonPay (the “Site” or the “MoonPay Site”).
THIS AGREEMENT CONTAINS IMPORTANT PROVISIONS INCLUDING AN ARBITRATION PROVISION THAT REQUIRES YOU AND MOONPAY TO RESOLVE ALL DISPUTES BY BINDING ARBITRATION INSTEAD OF IN COURT, UNLESS YOU CHOOSE TO OPT OUT OF SUCH PROVISION. PLEASE SEE SECTION 6.2 TITLED “DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER” BELOW. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT, YOU WAIVE YOUR RIGHT TO TRIAL BY JURY, AND EXCEPT AS PERMITTED BY SECTION 6.2, YOU WILL NOT BE ABLE TO BRING ANY CLAIMS IN STATE OR FEDERAL COURT.
AS EXPLAINED IN FURTHER DETAIL IN THE SECTION BELOW ENTITLED “E-SIGN DISCLOSURE AND CONSENT,” AUTHORIZATION TO ELECTRONICALLY RECEIVE ANY AND ALL COMMUNICATIONS (DEFINED BELOW) IS A CONDITION OF ACCESS TO AND USE OF THE SERVICES, MEANING THAT IF YOU REVOKE YOUR CONSENT TO RECEIVE SUCH COMMUNICATIONS ELECTRONICALLY YOU UNDERSTAND THAT YOU MAY NOT CONTINUE TO ACCESS OR USE THE SERVICES.
As with any asset, the value of digital currencies can go up or down and there can be a substantial risk that you lose money buying, selling, holding, or investing in digital currencies. You should carefully consider whether trading or holding digital currencies is suitable for you in light of your financial condition. MoonPay is not registered with the U.S. Securities and Exchange Commission and does not offer securities services in the United States or to U.S. persons.
Part 1: GENERAL USE
1. The Services
Description of Services. MoonPay allows users to engage in transactions directly with MoonPay for the purchase or sale of certain digital currencies (each currency usable on the Site, a “Digital Currency”) in exchange for fiat currency or another Digital Currency (each such transaction, an “Digital Currency Transaction”).
MoonPay’s current pricing information for the Digital Currencies may be viewed through the Site. Please note that Digital Currency prices are volatile and fluctuate throughout the day, and any pricing information obtained through the Site is for informational purposes only. In order to conduct a Digital Currency Transaction, you must log into your MoonPay Account and input the desired transaction details (e.g., purchase or sale, the currency you wish to purchase/sell, and amount). MoonPay will then provide its current pricing information for your chosen currency[ies]. If you accept the pricing displayed, you can then accept and confirm the Digital Currency Transaction. If you do not accept the pricing displayed, you can choose not to proceed and cancel.
Once you accept the price and confirm, MoonPay settles the Digital Currency Transaction by executing a corresponding debit to your chosen payment method (credit, debit or prepaid card, bank account or third-party provided digital currency wallet, as applicable) and crediting your designated third-party digital currency wallet with the purchased digital currency or your bank account with fiat currency, as applicable.
Wallets. MoonPay does not offer digital currency wallets. In order to use the MoonPay Services, you must provide us with the address of one or more third-party provided digital currency wallets to which we can transfer your purchased Digital Currency (a “Linked Wallet”). You may only link digital currency wallets that you own and control to your MoonPay Account. By providing us with the address to send purchased Digital Currency, you represent and warrant that you own and control such wallet. If at any time you no longer own or control a third-party provided digital currency wallet that is linked to your MoonPay Account, you must notify us and remove such wallet from your MoonPay Account immediately.
Payment Method. In order to purchase Digital Currency from MoonPay, you must provide a valid and accepted payment method, which will be linked to your MoonPay Account (your “Linked Payment Method”). Upon MoonPay’s verification of your payment method(s), you will be able to engage Digital Currency Transactions.
2. Account setup
Eligibility. To be eligible to use the MoonPay Services, you must be at least 18 years old (or the applicable age of majority and contractual capacity in the jurisdiction in which you reside), reside in the United States, and have and use a valid MoonPay Account (see Sections [2.3 and 2.4] below for information regarding Account creation and validation)
Terms. We may amend or modify this Agreement at any time by posting the revised agreement on the Site and/or providing a copy to you (a “Revised Agreement”). The Revised Agreement shall be effective as of the time it is posted but will not apply retroactively. Your continued use of the Services after the posting of a Revised Agreement constitutes your acceptance of such Revised Agreement. If you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services and close your MoonPay Account.
Registration of MoonPay Account. You must register for a MoonPay account to use the Services (“MoonPay Account”). By registering for a MoonPay Account, you agree and represent that you will use the MoonPay Account only for yourself, and not on behalf of any third party. You are fully responsible for all activity that occurs under your MoonPay Account. We may, in our sole discretion, refuse to establish a MoonPay Account, limit your access to the Services, or suspend or terminate any MoonPay Account or the trading of a specific Digital Currency through your MoonPay Account.
Identity Verification. During registration for your MoonPay Account, you agree to provide us with the information we request for the purposes of identity verification and the detection of money laundering, terrorist financing, fraud or any other financial crime and permit us to keep a record of such information. You will need to complete certain verification procedures before you are permitted to use the MoonPay Services. MoonPay may alter, limit or cease your access to the Services as a result of information collected about you on an ongoing basis. The information we request may include certain personal information, including but not limited to your name, address, telephone number, e-mail address, date of birth, taxpayer identification number, government identification, and information regarding your bank account (such as the name of the bank, the account type, routing number and account number) and in some cases (where permitted by law), special categories of personal data, such as your biometric information. In providing us with this or any other information that may be required, you confirm that the information is accurate and authentic. You further agree to keep us updated if any of the information you provided changes.
Access. To access the MoonPay Services, you must have the necessary equipment (such as smartphone or laptop) and the associated telecommunication service subscriptions to access the Internet. The MoonPay Services can be accessed directly using the Site. Access to MoonPay Services may become degraded or unavailable during times of significant volatility or volume. This could result in the inability to buy or sell for periods of time and may also lead to support-response-time delays. Although we strive to provide you with excellent service, we do not represent that the MoonPay Site or Services will be available without interruption and we do not guarantee that any order will be executed, accepted, recorded or remain open. MoonPay shall not be liable for any losses resulting from or arising out of transaction delays.
3. Digital currency purchases and sales
Purchase or Sale of Digital Currencies. When you purchase Digital Currency using your Account, you are purchasing directly from MoonPay. You can purchase Digital Currency using your Linked Payment Method. Your purchase must follow the relevant instructions on the Site. You can sell certain Digital Currencies directly to MoonPay and instruct MoonPay to deposit the proceeds from the sale into your linked bank account or debit card.
Digital Currency prices are volatile and MoonPay reserves the right to cancel any transaction not confirmed by you within [five (5) seconds] after MoonPay quotes a transaction price. A purchase of Digital Currency using your Linked Payment Method generally will initiate on the business day we receive your instructions. MoonPay will transfer the purchased Digital Currency to your designated Linked Wallet as soon as funds have settled to MoonPay which in the case of a bank account or credit or debit card may take up to seven business days. You can sell Digital Currency and instruct MoonPay to deposit funds into your verified bank account or onto your debit card or, where supported, a Digital Currency Wallet. If MoonPay cannot complete your Digital Currency Transaction for any reason (such as price movement, market latency or order size), MoonPay will reject the order and notify you of such rejection. You will not be charged for a rejected transaction.
Fees. A full list of MoonPay fees can be found on our Pricing and Fees Disclosures page. By using MoonPay Services you agree to pay all applicable fees. MoonPay reserves the right to adjust its pricing and fees and any applicable waivers at any time. We will always notify you of the pricing and fees which apply to your Digital Currency Transaction when you authorize the transaction and in each receipt we issue to you. We may charge network fees (miner fees) to process a Digital Currency Transaction. We will calculate the network fee in our discretion, although we will always notify you of the network fee at or before the time you authorize the Digital Currency Transaction. Bank fees charged to MoonPay are netted out of transfers to or from MoonPay. You are responsible for paying any additional fees charged by your financial services provider. If your bank fees exceed the value of the Digital Currency Transaction, we will reject the order and notify you of the reason therefor.
Unauthorized and Incorrect Transactions. When a Digital Currency Transaction occurs using your credentials, we will assume that you authorized such transaction, unless you notify us otherwise. If you believe you did not authorize a particular transaction or that a transaction was incorrectly carried out, you must contact us as soon as possible either by email or at https://support.MoonPay.com.
Account Information. You can see your transaction history using the MoonPay Site, including (i) the amount (and currency) of each Digital Currency Transaction, (ii) a reference to the destination Linked Wallet, (iii) any fees charged and (iii) the date of each Digital Currency Transaction.
Reversals & Cancellations. You cannot cancel, reverse or change any Digital Currency Transaction marked as complete or pending. If your payment is not successful, if your payment method has insufficient funds or if you reverse a payment made from funds in your bank account, you authorize MoonPay, in its sole discretion, to either cancel the transaction or to debit your other Linked Payment Methods in any amount necessary to complete the Digital Currency Transaction on its original terms. You are responsible for maintaining an adequate balance and/or sufficient credit limits in order to avoid overdraft, non-sufficient funds (NSF) or similar fees charged by your financial services provider. We reserve the right to refuse to process or to cancel or reverse any Digital Currency Transaction in our sole discretion, even after funds have been debited from your Linked Payment Method(s),if we suspect the transaction meets any criteria set forth in Section [5.5]. In such instances, MoonPay 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 under the same terms as the cancelled transaction.
Recurring Transactions. If you set up a recurring purchase of Cryptocurrencies (a "Future Transaction"), you authorise us to initiate recurring electronic payments in accordance with your selected Cryptocurrency Purchase. Your Future Transactions will occur in identical, periodic instalments, based on your period selection (e.g., daily, weekly, monthly), until either you or MoonPay cancels the Future Transaction. This authorisation will remain in full force and effect until you change your Future Transaction settings or until you provide us with written notice via https:/support.moonpay.com.
Payment Services Partners. MoonPay may use a third-party payment processor to process any US Dollar payment between you and MoonPay.
4. Data protection and security
Security Breach. If you suspect that your MoonPay Account or any of your security details have been compromised or if you become aware of any fraud or attempted fraud or any other security incident (including a cyber-security attack) affecting you and/or MoonPay (together a “Security Breach”), you must notify MoonPay Support as soon as possible at https://support.MoonPay.com ⬤and continue to provide accurate and up to date information throughout the duration of the Security Breach. You must take any steps that we reasonably require to reduce, manage or report any Security Breach. Failure to provide prompt notification of any Security Breach may be taken into consideration in our determination of the appropriate resolution of the matter.
5. General use, prohibited use, death of account holder and termination
Limited License. We grant you a limited, non-exclusive, non-transferable license subject to the terms of this Agreement to access and use the MoonPay Services, MoonPay Site, and related content, materials, information (collectively, the “Content”) solely for purposes approved by MoonPay from time to time. Any other use of the MoonPay Site or Content is expressly prohibited and all other rights, title, and interest in the MoonPay Services, MoonPay Site or Content is exclusively the property of MoonPay 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 the Content, in whole or in part, without the prior written consent of MoonPay. “MoonPay.com”, “MoonPay”, and all logos related to the MoonPay Services or displayed on the MoonPay Site are either trademarks or registered marks of MoonPay or its licensors. You may not copy, imitate or use them without MoonPay’s prior written consent.
Website Accuracy. Although we intend to provide accurate and timely information on the MoonPay Site, the MoonPay Site (including, without limitation, the Content) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. In an effort to continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice including without limitation information regarding our policies, products and services. Accordingly, you should verify all information before relying on it; all decisions based on information contained on the MoonPay Site are your sole responsibility and we shall incur no liability for such decisions. Information provided by third parties including historical price and supply data for Digital Currencies is for informational purposes only and MoonPay makes no representations or warranties to its accuracy. Links to third-party materials (including without limitation websites) may be provided as a convenience but are not controlled by us. You acknowledge and agree that we are not responsible for any aspect of the information, content, or services contained in any third-party materials or on any third-party sites accessible or linked to the MoonPay Site.
Promotions. From time to time, MoonPay may make available special offers or conduct promotions for qualifying customers. MoonPay shall have no obligation to make special offers available to all customers.
Third-Party Applications. If, to the extent permitted by MoonPay from time to time, you grant express permission to a third party to access or connect to your MoonPay Account, either through the third party’s product or service or through the MoonPay Site, you acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under this Agreement. You are fully responsible for all acts or omissions of any third party with access to your MoonPay Account. Further, you acknowledge and agree that you will not hold MoonPay responsible for, and will indemnify MoonPay from, any liability arising out of or related to any act or omission of any third party with access to your MoonPay Account. You may change or remove permissions granted by you to third parties with respect to your MoonPay Account at any time through the tabs on the Account Settings page on the MoonPay Site.
Prohibited Use. You are responsible for complying with applicable law, including state and federal laws and regulations regarding money laundering, terrorist financing, and money transfer and remittance. You are responsible for understanding and abiding by the laws and regulations of each jurisdiction in which you use MoonPay’s Services.
Except as required by law, we may, without notice and without liability to you, suspend or terminate access to, or refuse to provide, any Services at any time in our sole discretion, including with limitation:
if we believe, in our sole discretion, you directly or indirectly use, or attempt to use, the Services for any unlawful or improper purpose;
if you provide any incomplete, incorrect or false information to us;
if you attempt to tamper, hack, modify or otherwise corrupt the security or functionality of the Site or the Services;
if we believe that your use of any method of payment is unauthorized, or if your method of payment does not have sufficient available funds (or credit, as applicable), or that has expired, or if your method of payment is declined or your payment is blocked or reversed for any reason;
if you have breached any portion of this Agreement;
if we determine such action is necessary to comply with this Agreement, any of our policies, procedures or practices, or any law, rule or regulation; and/or
as otherwise set forth in Section [5.8].
You agree that we will not be held responsible or liable to you or any other person for such action except as required by law.
Transaction Limits. The use of all MoonPay Services is subject to a limit on the amount of volume, stated in U.S. Dollar terms, you may transact or transfer in a given period (e.g., daily). Your transaction limits may vary depending on your payment method, verification steps you have completed, and other factors. MoonPay reserves the right to change applicable limits as we deem necessary in our sole discretion. If you wish to raise your limits beyond the posted amounts, you may submit a request at https://support.MoonPay.com. We may require you to submit additional information about yourself or your business, provide records, and arrange for meetings with MoonPay staff (such process, “Enhanced Due Diligence”). MoonPay reserves the right to charge you costs and fees associated with Enhanced Due Diligence, provided that we notify you in advance of any such charges accruing. In our sole discretion, we may refuse to raise your limits or we may lower your limits at a subsequent time even if you have completed Enhanced Due Diligence.
Suspension, Termination, and Cancellation. MoonPay may: (a) suspend, restrict, or terminate your access to any or all of the MoonPay Services, and/or (b) deactivate or cancel your MoonPay Account(s) if: (i) We are so required by a facially valid subpoena, court order, or binding order of a government authority; (ii) We reasonably suspect you are violating this Agreement; (iii) Use of your MoonPay Account(s) is subject to any pending litigation, investigation, or government proceeding and/or we perceive a heightened risk of legal or regulatory non-compliance associated with your MoonPay Account activity; (iv) Our service partners are unable to support your use; (v) You take any action that MoonPay deems as circumventing MoonPay’s controls, including, but not limited to, opening multiple MoonPay Accounts or abusing promotions which MoonPay may offer from time to time.
If MoonPay suspends or closes your MoonPay Account or terminates your use of MoonPay Services for any reason, we will provide you with notice of our actions unless a court order or other legal process prohibits MoonPay from providing you with such notice. You acknowledge that MoonPay’s decision to take certain actions, including limiting access to, suspending, or closing your MoonPay Account, may be based on confidential criteria that are essential to MoonPay’s risk management and security protocols. You agree that MoonPay is under no obligation to disclose the details of its risk management and security procedures to you.
You may cancel your MoonPay Account(s) at any time by visiting https://www.MoonPay.com/settings/cancel. You will not be charged for cancelling your MoonPay Account(s), although you will be required to pay any outstanding amounts owed to MoonPay. You authorize us to cancel or suspend any pending Digital Currency Transactions at the time of cancellation.
Death of Account Holder. For security reasons, if we receive legal documentation confirming your death or other information leading us to believe you have died, we will close your MoonPay Account.
Relationship of the Parties. MoonPay is an independent contractor for all purposes. Nothing in this Agreement shall be deemed or is intended to be deemed, nor shall it cause, you and MoonPay to be treated as partners, joint ventures, or otherwise as joint associates for profit, or either you or MoonPay to be treated as the agent of the other.
Password Security; Contact Information. You are responsible for creating a strong password and maintaining adequate security and control of any and all IDs, passwords, hints, personal identification numbers (PINs), API keys or any other codes that you use to access the MoonPay Services. Any loss or compromise of the foregoing information and/or your personal information may result in unauthorized access to your MoonPay Account by third parties and the loss or theft of any Digital Currency and/or funds held in any linked accounts, including your linked bank account(s) and credit card(s). You are responsible for keeping your email address and telephone number up to date in your MoonPay Account profile in order to receive any notices or alerts that we may send you. You should never allow remote access or share your computer screen with someone else when you are logged in to your MoonPay Account. MoonPay will never and under any circumstances ask you for your IDs, passwords or 2-factor authentication codes. We assume no responsibility for any loss that you may sustain due to compromise of account login credentials due to no fault of MoonPay and/or failure to follow or act on any notices or alerts that we may send you. In the event you believe your MoonPay Account information has been compromised, contact MoonPay Support immediately at https://support.moonpay.com.
Taxes. It is your sole responsibility to determine whether and to what extent, any taxes apply to any transactions you conduct through the MoonPay Services and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities. Your transaction history is available through your MoonPay Account.
No Investment Advice or Brokerage. For the avoidance of doubt, MoonPay does not provide investment, tax or legal advice, nor does MoonPay broker trades on your behalf. MoonPay is your direct counterparty in each Digital Currency Transaction. All Digital Currency Transactions are executed automatically, based on the parameters of your order instructions and in accordance with posted execution procedures. You are solely responsible for determining whether an investment, investment strategy or related transaction is appropriate for you. You should consult your legal or tax professional regarding your specific situation. Any information MoonPay may provide regarding Digital Currencies or digital currencies, generally, including those not supported by MoonPay are purely informational and do not constitute an endorsement of such products or information or investment advice, financial advice, trading advice or any other sort of advice and you should not treat any of the Site’s content as such..
6. Customer feedback, queries, complaints and dispute resolution
Contact MoonPay. If you have feedback, or general questions, contact us via our Customer Support webpage at https://support.MoonPay.com. When you contact us, please provide us with your name, address and any other information we may need to identify you, your MoonPay Account and the transaction on which you have feedback or questions.
DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER. AGREEMENT TO ARBITRATE, SEAT OF THE ARBITRATION, ARBITRATOR’S AUTHORITY AND FORM OF THE AWARD. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND US, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A SINGLE, NEUTRAL ARBITRATOR, INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND WE AND YOU EACH WAIVE THE RIGHT TO TRIAL BY A JURY. THE SEAT OF THE ARBITRATION SHALL BE DOVER, DELAWARE, NOTWITHSTANDING YOUR RIGHT TO CHOOSE WHERE ARBITRATION HEARINGS WILL BE CONDUCTED, AS FURTHER PROVIDED HEREIN. THE ARBITRATION SHALL BE CONDUCTED IN ENGLISH. THE ARBITRATOR SHALL BE A PRACTICING ATTORNEY. THE ARBITRATOR SHALL APPLY THE LAW AND WILL ISSUE A FINAL AND BINDING AWARD STATING THE REASONS FOR THE ARBITRATOR’S DECISION AND A CALCULATION OF ANY DAMAGES AWARDED. A JUDGMENT ON THE AWARD MAY BE ENTERED BY ANY COURT HAVING JURISDICTION. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO DECIDE ISSUES OF ARBITRABILITY, SHALL DECIDE THE RIGHTS AND LIABILITIES, IF ANY, OF YOU AND WE. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO GRANT MOTIONS THAT ARE DISPOSITIVE OF ALL OR PART OF ANY CLAIM OR DISPUTE. THE ARBITRATOR WILL HAVE THE AUTHORITY TO AWARD MONETARY DAMAGES AND TO GRANT ANY NON-MONETARY REMEDY OR RELIEF AVAILABLE UNDER APPLICABLE LAW AND THIS AGREEMENT. THE ARBITRATOR SHALL HAVE THE SAME AUTHORITY TO AWARD RELIEF THAT A JUDGE IN A COURT OF LAW WOULD HAVE.
WAIVER OF CLASS ARBITRATION OR ACTIONS. ANY CLAIMS YOU OR WE ASSERT UNDER THIS AGREEMENT WILL BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, CONSOLIDATED, REPRESENTATIVE OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND YOU AND WE AGREE THAT CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED UNDER ANY CIRCUMSTANCES, INCLUDING THAT ANY CLAIMS OF MORE THAN ONE CUSTOMER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANOTHER CUSTOMER OR PERSON. YOU AND WE AGREE TO GIVE UP THE ABILITY TO PARTICIPATE IN ANY FORM OF CLASS ARBITRATION AND/OR ACTION. EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY. ANY DISPUTE MUST BE INITIATED WITHIN ONE YEAR AFTER THE COMPLAINING PARTY DISCOVERS THE FACTS THAT FORM THE BASIS FOR THE CONTROVERSY OR CLAIM, OR IT IS FOREVER WAIVED.
APPLICABLE ARBITRATION RULES, HEARINGS AND COSTS. ARBITRATION WILL BE ADMINISTERED BY JAMS IN ACCORDANCE WITH THE THEN-CURRENT COMPREHENSIVE ARBITRATION RULES & PROCEDURES (THE “RULES”), INCLUDING THE EXPEDITED PROCEDURES SET FORTH IN THOSE RULES. THESE RULES ARE AVAILABLE AT WWW.JAMSADR.COM OR BY CALLING JAMS AT (800) 352-5267. ANY REQUIRED ARBITRATION HEARING MAY BE CONDUCTED, AT YOUR OPTION: (1) IN DADE COUNTY, FLORIDA; (2) IN A LOCATION OF YOUR CHOOSING THAT IS WITHIN 50 MILES OF YOUR PLACE OF HABITUAL RESIDENCE; (3) IN A MUTUALLY AGREEABLE ALTERNATIVE LOCATION; OR (4) BY TELEPHONE OR VIDEO CONFERENCE. THE PLACE WHERE THE ARBITRATION HEARINGS SHALL BE CONDUCTED WILL HAVE NO BEARING ON THE LEGAL SEAT OF THE ARBITRATION, WHICH SHALL AT ALL TIMES REMAIN DOVER, DELAWARE. THE SOLE ARBITRATOR SHALL BE APPOINTED BY AGREEMENT OF THE PARTIES. IF SUCH AN AGREEMENT CANNOT BE REACHED WITHIN THIRTY DAYS, THEN THE ARBITRATOR WILL BE APPOINTED BY JAMS IN ACCORDANCE WITH THE RULES. IF YOU INITIATE ARBITRATION HEREUNDER, YOU SHALL PAY UP TO $250 OF THE COSTS OF THE ARBITRATION AND WE PAY ALL COSTS OF THE ARBITRATION IN EXCESS THEREOF (TO THE EXCLUSION OF ANY ATTORNEYS’ FEES YOU INCUR, WHICH SHALL EXCLUSIVELY BE BORNE BY YOU UNLESS AND UNTIL AWARDED BY THE ARBITRATOR IN THE FINAL AWARD). WHERE WE INITIATE ARBITRATION AGAINST YOU, WE SHALL PAY ALL COSTS OF THE ARBITRATION. THE PREVAILING PARTY WILL BE ENTITLED TO AN AWARD OF THE COSTS AND EXPENSES OF THE ARBITRATION, INCLUDING ATTORNEYS’ FEES AND EXPERT WITNESS FEES TO THE FULLEST EXTENT PERMITTED BY LAW.
EXCEPTIONS TO ARBITRATION. YOU AND WE AGREE THAT THE FOLLOWING DISPUTES (AND ONLY THESE DISPUTES) ARE NOT SUBJECT TO THE ABOVE PROVISIONS CONCERNING BINDING ARBITRATION AND MAY BE BROUGHT IN ANY COURT HAVING JURISDICTION OVER THE PARTIES AND SUBJECT MATTER: (1) ANY CLAIMS THAT QUALIFY FOR DISPOSITION BY A SMALL CLAIMS COURT; (2) ANY SUIT TO COMPEL ARBITRATION, STAY PROCEEDING PENDING ARBITRATION, OR TO CONFIRM, MODIFY, VACATE OR ENTER JUDGMENT ON THE AWARD ENTERED BY THE ARBITRATOR; AND (3) ANY SUIT TO SEEK TEMPORARY INJUNCTIVE RELIEF THAT WILL REMAIN IN PLACE ONLY UNTIL AN ARBITRATOR CAN DETERMINE WHETHER THE RELIEF SHOULD BE CONTINUED, MODIFIED OR REMOVED.
SEVERABILITY. YOU AND WE AGREE THAT IF ANY PORTION OF THIS SECTION 15 IS FOUND ILLEGAL OR UNENFORCEABLE, THAT PORTION SHALL BE SEVERED AND THE REMAINDER OF THIS SECTION 15 SHALL BE GIVEN FULL FORCE AND EFFECT.
OPT-OUT. YOU HAVE THE RIGHT TO OPT OUT OF THE PROVISIONS OF THIS SECTION 15 BY SENDING A TIMELY WRITTEN NOTICE OF YOUR DECISION TO OPT OUT TO THE FOLLOWING ADDRESS: MOONPAY ARBITRATION OPT-OUT, [___________] OR BY EMAIL TO [[email protected]], WITHIN 30 DAYS AFTER EXECUTING THIS AGREEMENT. YOUR NOTICE MUST INCLUDE YOUR NAME AND ADDRESS AND A CLEAR STATEMENT THAT YOU WANT TO OPT OUT OF THIS SECTION [6.2] OF THE AGREEMENT. IF YOU OPT OUT OF THIS SECTION [6.2], ALL OTHER PARTS OF THIS AGREEMENT WILL CONTINUE TO APPLY TO YOU. OPTING OUT OF THIS SECTION [6.2] WILL NOT HAVE ANY EFFECT ON OTHER ARBITRATION AGREEMENTS THAT YOU MAY CURRENTLY HAVE WITH MOONPAY, OR MAY ENTER INTO IN THE FUTURE WITH MOONPAY.
7. General provisions
Computer Viruses. We shall not bear any liability, whatsoever, for any damage or interruptions caused by any computer viruses or other malicious code that may affect your computer or other equipment or any phishing, spoofing or other attack. We advise the regular use of a reputable and readily available virus screening and prevention software. You should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from MoonPay. Always log into your MoonPay Account through the Site to review any transactions or required actions if you have any uncertainty regarding the authenticity of any communication or notice.
Release of MoonPay; Indemnification. If you have a dispute with one or more users of the Services, you release MoonPay, its affiliates and service providers, and each of their respective officers, directors, agents, joint venturers, employees and representatives from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. You agree to indemnify and hold MoonPay, its affiliates and Service Providers and each of its or their respective officers, directors, agents, joint venturers, employees and representatives, harmless from any claim or demand (including attorneys’ fees and any fines, fees or penalties imposed by any regulatory authority) arising out of or related to your breach of this Agreement or your violation of any law, rule or regulation, or the rights of any third party.
Limitation of Liability; No Warranty. IN NO EVENT SHALL MOONPAY, ITS AFFILIATES AND SERVICE PROVIDERS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE (A) FOR ANY AMOUNT GREATER THAN THE VALUE OF THE DIGITAL CURRENCY TRANSACTION(S) CONDUCTED BY YOU OR (B) FOR ANY LOST PROFITS, DIMINUTION IN VALUE OR BUSINESS OPPORTUNITY, ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF DATA OR ANY OTHER INTANGIBLE PROPERTY OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH AUTHORIZED OR UNAUTHORIZED USE OF THE MOONPAY SITE OR THE MOONPAY SERVICES, OR THIS AGREEMENT, EVEN IF AN AUTHORIZED REPRESENTATIVE OF MOONPAY HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT TO THE EXTENT OF A FINAL JUDICIAL DETERMINATION THAT SUCH DAMAGES WERE A RESULT OF MOONPAY’S GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW. THIS MEANS, BY WAY OF EXAMPLE ONLY (AND WITHOUT LIMITING THE SCOPE OF THE PRECEDING SENTENCE), THAT IF YOU CLAIM THAT MOONPAY FAILED TO PROCESS A DIGITAL CURRENCY TRANSACTION PROPERLY, YOUR DAMAGES ARE LIMITED TO NO MORE THAN THE VALUE OF THE SUPPORTED DIGITAL CURRENCY AT ISSUE IN THE TRANSACTION AND THAT YOU MAY NOT RECOVER FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES, DIMINUTION IN VALUE OR OTHER TYPES OF SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN EXCESS OF THE VALUE OF THE SUPPORTED DIGITAL CURRENCY AT ISSUE IN THE TRANSACTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE MOONPAY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOONPAY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. MOONPAY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SITE, ANY PART OF THE MOONPAY SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. MOONPAY DOES NOT GUARANTEE THAT ANY ORDER WILL BE EXECUTED, ACCEPTED, RECORDED OR REMAIN OPEN. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THIS AGREEMENT, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, WITH RESPECT TO YOUR USE AND ACCESS OF THE MOONPAY SERVICES AND MOONPAY SITE. WITHOUT LIMITING THE FOREGOING, YOU HEREBY UNDERSTAND AND AGREE THAT MOONPAY WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO: (A) ANY INACCURACY, DEFECT OR OMISSION OF DIGITAL CURRENCY PRICE DATA, (B) ANY ERROR OR DELAY IN THE TRANSMISSION OF SUCH DATA, OR (C) INTERRUPTION IN ANY SUCH DATA.
MoonPay makes no representations about the accuracy, order, timeliness or completeness of historical Digital Currency price data available on the MoonPay Site. MoonPay will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards and check issuances are processed in a timely manner but MoonPay makes no representations or warranties regarding the amount of time needed to complete processing which is dependent upon many factors outside of our control.
IF YOU ARE A NEW JERSEY RESIDENT, the provisions of this Section [7.3] are intended to apply only to the extent permitted under New Jersey law.
Entire Agreement. This Agreement comprises the entire understanding and agreement between you and MoonPay as to your access to the Site and use of the Services, and supersedes any and all prior discussions, agreements and understandings of any kind (including without limitation any prior versions of this Agreement), and every nature between and among you and MoonPay. Section headings in this Agreement are for convenience only and shall not govern the meaning or interpretation of any provision of this Agreement.
Amendments. We may amend or modify this Agreement by posting on the MoonPay Site or sending the Revised Agreement to the email associated with your MoonPay Account, and the Revised Agreement shall be effective at such time. If you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services and close your MoonPay Account. You agree that we shall not be liable to you or any third party for any modification or termination of the MoonPay Services, or suspension or termination of your access to the MoonPay Services, except to the extent otherwise expressly set forth herein. If the revised Agreement includes a material change, we will attempt to provide advanced notice via our website and/or email before the material change becomes effective.
Assignment. You may not assign any rights and/or licenses granted under this Agreement. We reserve the right to assign our rights without restriction, including without limitation to any MoonPay affiliates or subsidiaries, or to any successor in interest of any business associated with the MoonPay Services. Any attempted transfer or assignment in violation hereof shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Severability. If any provision of this Agreement shall be determined to be invalid or unenforceable under any rule, law or regulation of any local, state, or federal government agency, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the validity or enforceability of any other provision of this Agreement shall not be affected.
Change of Control. In the event that MoonPay is acquired by or merged with a third-party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale or other change of control.
Survival. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, sections pertaining to suspension or termination, MoonPay Account cancellation, debts owed to MoonPay, general use of the MoonPay Site, disputes with MoonPay, and general provisions, shall survive the termination or expiration of this Agreement.
Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts of laws provisions. To the extent any claims may be made in court pursuant to this Agreement, and subject to the arbitration agreement contained in Section [6.2] if you have not opted out of the same, you agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Delaware. TO THE EXTENT THE DISPUTE RESOLUTION BY BINDING ARBITRATION SECTION ABOVE IS INAPPLICABLE TO A CLAIM OR ACTION, AND WITHOUT PREJUDICE TO SUCH SECTION, EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT; EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION; AND EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY TO ENTER INTO THIS AGREEMENT. You and MoonPay agree that any lawsuit arising out of or related to this Agreement or your use of the Site or the Services, which is brought by you or any third party, must commence within one (1) year after the cause of action arises; otherwise, such cause of action is permanently barred.
Force Majeure. We shall not be liable for delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, significant market volatility, any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labour dispute, fire, interruption in telecommunications or internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
Non-Waiver of Rights. This Agreement shall not be construed to waive rights that cannot be waived under applicable state money transmission laws in the state where you are located.
8. E-sign disclosure and consent
Scope of Communications to Be Provided in Electronic Form. You understand and agree that we may provide you with any or all of the following types of communications electronically: (i) legally required disclosures, notices and other communications associated with your access to or use of the Services, including, but not limited to information about fees or charges, and any and all legally required pre- and post-transaction disclosures; (ii) customer service communications; (iii) privacy policies and notices; (iv) changes to this Agreement, (v) statements, information and records regarding your transactions; (vi) information regarding the debiting or charging, as applicable of your selected payment method; (vii) any and all legally required error resolution policies, and responses to claims filed in connection with your access to or use of the Services; (viii) any other communications related to your access to and/or use of the Services, and (ix) with your consent, marketing and other promotional communications (collectively, “Communications”).
Communications in Writing. All Communications in either electronic or paper format from us to you will be considered “in writing.” You should print or download for your records a copy of this Agreement and any other Communication that is important to you.
Method of Providing Communications to You in Electronic Form. All Communications that we provide to you in electronic form will be provided either (i) via e-mail, (ii) by access to a web site that we will designate in an e-mail notice we send to you at the time the information is available, or (iii) to the extent permitted by law, on the Site or via SMS text message. You agree to promptly review all Communications sent to you, and that these are reasonable procedures for sending and receiving electronic communications.
How to Update Your Records. To receive electronic Communications, at the time that you first use the Services, you must provide us with a true, accurate and complete e-mail address and your contact information, and you must promptly notify us of any changes to this information. You can update information (such as your e-mail address) through the Site.
Hardware and Software Requirements. In order to access, view, and retain electronic Communications that we make available to you, you must have an electronic device that enables access to your e-mail account or a commercially available Internet browser. You may wish to utilize a device that is capable of storing or printing the Communications for your records.
Requesting Paper Copies. If you have consented to receive electronic Communications, we will not send you a paper copy of any Communication unless we deem it appropriate to do so. You can obtain a paper copy of an electronic Communication by printing it yourself. We reserve the right, but assume no obligation, to provide a paper (instead of electronic) copy of any Communication that you have authorized us to provide electronically. You may obtain a paper copy of any legally-required Communications and or agreements. You may request such a paper copy by visiting https://support.moonpay.com/hc/en-gb or contacting us at [email protected].
How to Withdraw Consent. You may withdraw your consent to receive Communications in electronic form at any time by visiting https://support.moonpay.com/hc/en-gb or contacting us at [email protected]. Any withdrawal of your consent to receive electronic Communications will be effective only after we have received your request your request for withdrawal and have a reasonable period of time to process such request. In the meantime, you will continue to receive Communications in electronic form. By withdrawing your consent, you will no longer be able to use the Services. Withdrawing consent to receive marketing communications only does not preclude use of the Services, however. If you withdraw your consent, the legal validity and enforceability of prior Communications delivered in electronic form will not be affected, and your previous electronic records will remain accessible for such period as is required under law and in a form that allows the record to be accurately reproduced to all persons who are entitled under law to access the record.
Federal Law. You acknowledge and agree that your consent to electronic Communications is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”), and that you and we both intend that the E-Sign Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means.
Termination/Changes. We reserve the right, in our sole discretion, to discontinue the provision of your electronic Communications, or to terminate or change the terms and conditions on which we provide electronic Communications. We will provide you with notice of any such termination or change as required by law.