SECTION 11 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND MOONPAY HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 11 INCLUDES THE ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO ARBITRATION.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST MOONPAY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING (EXCEPT AS SET FORTH IN SECTION 11); AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING OR PROPOSED CLASS ACTION LITIGATION.
These Stablecoin Terms of Use ( the “Stablecoin Terms of Use” or, the “Agreement”) of MoonPay USA LLC (“MoonPay USA”) govern the provision of and use of all stablecoins that are issued and managed by MoonPay USA (“MoonPay,” “we” or “us”) from time to time and added to the Stablecoin Terms of Use (collectively, the “Stablecoins”).
To the extent there is a conflict between the Stablecoin Terms of Use and other terms and conditions of MoonPay which may be applicable to you and available at https://www.moonpay.com/legal (collectively, the “MoonPay Terms and Conditions”), the terms of these Stablecoin Terms of Use shall govern and control with respect to the Stablecoins. For the avoidance of doubt, and as applicable, the Stablecoin Terms of Use constitute an addendum or supplement to your applicable MoonPay Terms and Conditions and forms part of your agreement with us
These Stablecoin Terms of Use apply (a) to Customers who access Stablecoin-related services via the MoonPay Platform, and (b) to all persons or entities who possess or control Stablecoins (“Stablecoin Holders”) solely with respect to provisions that by their nature apply to Stablecoin Holders generally, including but not limited to Sections 2, 5, 6, 7, 8, 9, 10, and 11.
1. OUR STABLECOINS
1.1. To purchase Stablecoins from or redeem Stablecoins with MoonPay, you must first successfully complete MoonPay’s onboarding process (a “Customer”) and have access to its products and services in accordance with the applicable Terms of Use found at https://www.moonpay.com/legal. Please note that Customers located in Canada, New York, Colorado, and the European Economic Area are not permitted to purchase Stablecoins from or redeem Stablecoins with MoonPay.
1.2. Our Stablecoins are U.S. dollar-denominated virtual currency assets that are each fully backed by a reserve of high-quality, liquid assets having an aggregate daily market value in U.S. dollars that is at least equal to the U.S. dollar value of then outstanding Stablecoins. For every Stablecoin issued by us and remaining in circulation, MoonPay will hold on behalf of Stablecoin Holders either one U.S. dollar or an equivalent amount of USD-denominated assets in segregated accounts. Our Stablecoins are not designed to create returns or profits for Stablecoin Holders, increase in value, or otherwise accrue financial benefit to Stablecoin Holders. Once you have possession of Stablecoin tokens, you can transfer them, trade them, keep them, use them to pay persons that will accept Stablecoins, or redeem them, subject to the limitations in these Stablecoin Terms of Use. The Stablecoins are recorded on certain blockchains that MoonPay may support from time to time (“Supported Blockchains”).
2. STABLECOIN RISK FACTORS AND ACKNOWLEDGEMENTS
2.1. The Supported Blockchains may experience backlogs, higher than normal transaction fees, changes to the network, failure or a fork in the protocol. MoonPay does not own or control any Supported Blockchains, is not responsible for the operation of Supported Blockchains and makes no guarantees regarding any Supported Blockchain’s security, functionality, or availability. MoonPay is not responsible for any losses of Stablecoins due to the failure of third-party software or technology. Further, the nature of the Stablecoins as virtual currency means that any technological difficulties experienced by us may prevent the access or use of your Stablecoins.
2.2. Stablecoins related to the Stablecoins (such as the ability to purchase, sell, convert, redeem or transfer a Stablecoin) may not be available to you based on where you reside or to a Customer based on the MoonPay affiliate they registered with. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of the Stablecoins.
2.3. The Stablecoins are not money, monetary instruments, securities or investment contracts, or legal tender, are not backed by the government, and accounts and value balances are not subject to Federal Deposit Insurance Corporation or Securities Investor Protection Corporation protections.
2.4. Transactions in Stablecoins may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some Stablecoin transactions shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that the transaction was initiated.
2.5. MoonPay may offer financial incentives, rewards, or other forms of compensation to third-party partners for promoting, listing, reselling or recommending the Stablecoins to their users. Such incentives are designed to enhance the distribution and awareness of the Stablecoins and do not influence the quality, safety, or utility of the Stablecoins themselves. You are encouraged to independently assess the appropriateness of the Stablecoins for your individual needs.
2.6. MoonPay may, at its sole discretion, engage market makers to provide liquidity for Stablecoin markets, both on the MoonPay Platform and on third-party platforms.
3. REDEMPTION OF STABLECOINS
3.1 The MoonPay Platform is an online platform that allows Customers to redeem Stablecoins for U.S. dollars, provided the conditions and scenarios set forth in these Stablecoin Terms of Use have been met (the “MoonPay Platform”). To become a Customer, you must first successfully complete MoonPay’s onboarding process in your applicable jurisdiction and have access to its products and services in accordance with the applicable MoonPay Terms and Conditions found at https://www.moonpay.com/legal, which terms are specific to your jurisdiction. Please note that Customers located in Canada, New York, Colorado, and the European Economic Area are not permitted to purchase Stablecoins from or redeem Stablecoins with MoonPay.
3.2. In order to redeem Stablecoins for U.S. dollars through the MoonPay Platform, you must become a Customer. SUBJECT TO APPLICABLE LAW, COMPLIANCE REVIEWS, AND THESE STABLECOIN TERMS OF USE, ALL REDEMPTIONS WILL BE ON A ONE-FOR-ONE BASIS, NOTWITHSTANDING ANY CHANGE IN THE MARKET VALUE OF THE RESERVE ASSETS BACKING STABLECOINS.
3.3. MoonPay will make commercially reasonable efforts to redeem your Stablecoins in a timely manner. Once a redemption order has passed compliance checks, it will be processed according to the redemption schedule. MoonPay may require a minimum amount for redemption, which may be updated from time to time.
3.4 We may prevent Customers from redeeming, or otherwise accessing services related to specific Stablecoins, depending on where they reside or the MoonPay affiliate they are registered with. We may also refuse to redeem Stablecoins from a Customer where we believe that the redemption of Stablecoins would be contrary to applicable law or would otherwise expose us to legal liability.
4. FEES
4.1. MoonPay does not currently charge fees for redeeming Stablecoins; provided however that (i) MoonPay reserves the right to impose and collect redemption fees in the future upon notice to you in accordance with section 4.3, and (ii) you may incur fees separate and apart from redemption related to any buy/sell activity activity on the MoonPay platform, including without limitation processing fees, network fees and ecosystem fees. Your financial institution and/or the provider of your crypto asset wallet may charge transaction and other fees in connection with the redemption of Stablecoins. To the extent MoonPay is charged any banking fees by your financial institution or MoonPay’s financial institution for the transfer of U.S. dollars in connection with the redemption of Stablecoins, MoonPay will deduct an amount equal to any such fees from the amount being transferred.
4.2. MoonPay may offer incentives or reduced fees to certain clients at its sole discretion.
4.3. We reserve the right to change or modify our fee structure or increase any of our fees at any time and from time to time. Any such changes, modifications or increases will be effective upon posting on our website, subject to any requirement under applicable law to provide additional notice. Your first use of the MoonPay Platform following the posting on our website of any changes to the fees will constitute your acceptance of such changes. If you do not agree to the posted changes, you may end your relationship with us.
5. RESERVE MANAGEMENT
5.1. Our Stablecoins are U.S. Dollar-denominated virtual currency assets that are each fully backed by a reserve of U.S. dollars and other high-quality, liquid assets having an aggregate daily market value in U.S. dollars that is at least equal to the U.S. dollar value of then outstanding Stablecoins. Other reserve assets are held at depository institutions, qualified custodians, and securely held virtual currency wallets, as applicable, and at all times segregated from MoonPay’s other assets. Reserve assets are held for the benefit of the Stablecoin Holders with regulated financial institutions in segregated accounts apart from our corporate funds, on behalf of, and for the benefit of, Stablecoin Holders. For every Stablecoin issued by us and remaining in circulation, MoonPay will hold on behalf of Stablecoin Holders either one U.S. dollar or an equivalent amount of reserve assets in segregated accounts. We may modify our reserve management program from time to time.
6. FORKS
6.1. You understand, acknowledge and agree that the underlying operating rules of the Supported Blockchains may change from time to time in such a way as to result in a fork. If a fork occurs, it may result in the creation of a new branch of a blockchain. MoonPay will evaluate all forks and make a determination, based on a number of factors, to support each Stablecoin on one, and only one, of the forks. MoonPay will continue to provide services for, support and hold reserves against the Stablecoins held on the supported fork only.
6.2. If a fork occurs, you understand, acknowledge and agree that we may temporarily suspend the operations of the MoonPay Platform.
7. UPGRADES AND FREEZES
7.1. MoonPay has the ability and the right to freeze and upgrade all Stablecoins tokens (on an aggregate basis), regardless of where the Stablecoins are being held. MoonPay will make commercially reasonable efforts to provide prior notice of any material freeze or upgrade and inform Stablecoin Holders of the reasons and consequences of such freeze and/or upgrade. MoonPay will make commercially reasonable efforts to use the freeze and/or upgrade feature only under limited circumstances.
7.2. MoonPay must comply with any legal directive to freeze, temporarily or permanently, user access to the Stablecoins or the reserves backing your Stablecoins with or without advance notice. MoonPay will only freeze such assets (1) if required to do so by law, specifically when MoonPay receives a formal legal directive from a regulator, judicial body, law enforcement agency, or other legal entity having jurisdiction over MoonPay, (2) pursuant to a formal notification by a MoonPay partner according to previously agreed contractual terms, or (3) as deemed necessary by MoonPay in its sole discretion. Legal directive formats include court-ordered subpoenas, national security letters, and formal written directives from a regulator with oversight over MoonPay.
7.3. Your Stablecoins and the reserves backing your Stablecoins may be subject to seizure or forfeiture by formal written legal directive from a regulator, judicial body, law enforcement agency, or other legal entity having jurisdiction over MoonPay, and we will comply with the legal process in respect thereof. Seizure may not occur under any circumstances absent such a binding legal directive. If tokens are seized, MoonPay will ensure that the seized funds are sent to a segregated wallet address held by MoonPay for the purposes of seizure/forfeiture, until such time as they may be disposed of or otherwise handled as required by law.
7.4. If we determine after investigation that any of your Stablecoins have been used, or are being used, for illegal (or sanctioned) activity, we may not permit you to redeem your Stablecoins, and, if presented for redemption, such Stablecoins and the reserves backing such Stablecoins may be forfeited.
7.5. Any Stablecoins or reserves underlying the Stablecoins that are subject to freeze, seizure, forfeiture or similar limitation on their use imposed by law may become wholly and permanently unrecoverable and unusable, and in appropriate circumstances, may be destroyed. If tokens are seized, MoonPay may send the tokens to a segregated wallet address held by MoonPay for the purposes of seizure/forfeiture, until such time as they may be disposed of or otherwise handled as required by law.
7.6. This Section 7 applies to all Stablecoin Holder, regardless of whether the Stablecoin Holder is a Customer of MoonPay.
7.7. By using our Stablecoins, you agree that we may take the actions set forth above and that we will not be liable to you therefore.
8. ILLEGAL USE OF STABLECOINS
8.1 WE MAY FREEZE, TEMPORARILY OR PERMANENTLY, YOUR USE OF, AND ACCESS TO, STABLECOINS OR THE RESERVES BACKING YOUR STABLECOINS, WITH OR WITHOUT ADVANCE NOTICE. YOUR STABLECOINS AND THE U.S. DOLLARS BACKING YOUR STABLECOINS MAY BE SUBJECT TO SEIZURE OR FORFEITURE BY LAW ENFORCEMENT, AND WE WILL COMPLY WITH LEGAL PROCESS IN RESPECT THEREOF.
8.2 IF WE DETERMINE AFTER INVESTIGATION THAT ANY OF YOUR STABLECOINS HAVE BEEN USED, OR ARE BEING USED, FOR ILLEGAL (OR SANCTIONED) ACTIVITY, WE MAY NOT PERMIT YOU TO REDEEM YOUR STABLECOINS, AND, IF PRESENTED FOR REDEMPTION, SUCH STABLECOINS AND THE RESERVES BACKING SUCH STABLECOINS MAY BE FORFEITED.
8.3 ANY STABLECOINS OR RESERVES UNDERLYING STABLECOINS THAT ARE SUBJECT TO FREEZE, SEIZURE, FORFEITURE OR SIMILAR LIMITATION ON THEIR USE IMPOSED BY LAW MAY BECOME WHOLLY AND PERMANENTLY UNRECOVERABLE AND UNUSABLE, AND IN APPROPRIATE CIRCUMSTANCES, MAY BE DESTROYED.
8.4 THIS SECTION 8 APPLIES TO ALL STABLECOIN HOLDERS, REGARDLESS OF WHETHER THE STABLECOIN HOLDER IS A CUSTOMER OF MOONPAY. BY USING STABLECOINS, YOU AGREE THAT WE MAY TAKE THE ACTIONS SET FORTH IN THIS SECTION 8 AND THAT WE WILL NOT BE LIABLE TO YOU AS A RESULT.
8.5 If you are aware of improper conduct involving a Stablecoin, you should immediately contact MoonPay at [email protected], as well as law enforcement to work towards filing a law enforcement report. MoonPay will make reasonable effort to cooperate with law enforcement inquiries and assist with investigations pertaining to MoonPay supported asset backed tokens.
8.6 For law enforcement requests please direct your official document to our compliance team here. Please note, however, that all formal legal documents and claims must be formally and properly served on the correct MoonPay group entity according to applicable law.
9. INDEMNIFICATION AND LIMITATIONS OF LIABILITY.
9.1 You agree to indemnify and hold harmless MoonPay, its affiliates, subsidiaries, directors, managers, members, officers, employees, and other customers, from any and all claims, demands, actions, damages, losses, costs or expenses, including without limitation, reasonable legal fees, arising out of or relating to your or any other person’s use of your credentials in connection with: (a) use of the Stablecoins; (b) breach of this Agreement or any other agreement or policy; (c ) false, incomplete, or misleading information relied upon by us to verify your identity and source of funds, where applicable; (d) violation of any applicable laws or regulations; or (e) violation of any rights of any other person or entity; provided however, that you shall not indemnify MoonPay for claims or losses arising out of MoonPay’s gross negligence or willful misconduct as determined by final order of a court of competent jurisdiction. This indemnity shall apply to your successors and assigns and shall survive any termination or cancellation of this Agreement.
9.2 Limitation of Liability
MoonPay shall not be liable to you or anyone else for any loss caused in whole or part by any inaccuracies or incompleteness, delays, interruptions, errors or omissions, including, but not limited to, those arising from the negligence of MoonPay or contingencies beyond its control in procuring, compiling, interpreting, computing, reporting, or delivering the Stablecoins thereon or the information therein. In no event will MoonPay be liable to you or anyone else for any decision made or action taken by you in reliance on, or in connection with your use of the Stablecoins or the information therein.
IN NO EVENT SHALL MOONPAY, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE FOR MORE THAN THE LOWER OF (I) THE VALUE OF THE STABLECOINS AT ISSUE AND (II) $20,000 USD.
IN NO EVENT SHALL MOONPAY, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE FOR ANY LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE AUTHORIZED OR UNAUTHORIZED USE OF THE SERVICES, EVEN IF MOONPAY HAD BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU BASED ON YOUR JURISDICTION OR THE GOVERNING LAW.
UNDER NO CIRCUMSTANCES SHALL WE BE REQUIRED TO DELIVER TO YOU ANY STABLECOINS AS DAMAGES, OR SHALL YOU BE ENTITLED TO SPECIFIC PERFORMANCE OR ANY OTHER SIMILAR REMEDY. YOU AND WE AGREE THAT ANY CALCULATIONS OF DAMAGES BASED IN ANY WAY ON THE VALUE OF STABLECOINS SHALL BE BASED ON THE LOWEST VALUE OF THE STABLECOINS DURING THE PERIOD BETWEEN THE ACCRUAL OF THE CLAIM AND THE AWARD OF DAMAGES.
WE SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED IN WHOLE OR IN PART BY (A) THE MALFUNCTION, UNEXPECTED FUNCTION OR UNINTENDED FUNCTION OF ANY COMPUTER OR CRYPTOCURRENCY NETWORK, INCLUDING WITHOUT LIMITATION LOSSES ASSOCIATED WITH VIRUSES, NETWORK FORKS, REPLAY ATTACKS, DOUBLE-SPEND ATTACKS, SYBIL ATTACKS, 51% ATTACKS, GOVERNANCE DISPUTES, MINING DIFFICULTY, CHANGES IN CRYPTOGRAPHY OR CONSENSUS RULES, HACKING OR CYBERSECURITY BREACHES; (B) THE CHANGE IN VALUE OF ANY CRYPTOCURRENCY; (C) ANY CHANGE IN LAW, REGULATION OR POLICY, OR (D) FORCE MAJEURE EVENT (INCLUDING BUT NOT LIMITED TO (I) ACTS OF GOD, NATURE, COURT OR GOVERNMENT; (II) FAILURE OR INTERRUPTION IN PUBLIC OR PRIVATE TELECOMMUNICATION NETWORKS, COMMUNICATION CHANNELS OR INFORMATION SYSTEMS; (III) ACTS OR OMISSIONS OF ACTS OF A PARTY FOR WHOM MOONPAY IS NOT RESPONSIBLE; (IV) DELAY, FAILURE, OR INTERRUPTION IN, OR UNAVAILABILITY OF, THIRD PARTY SERVICES AND SITES; (V) STRIKES, LOCK-OUTS, LABOUR DISPUTES, WARS, TERRORIST ACTS AND RIOTS; AND (VI) VIRUSES, MALWARES, OTHER MALICIOUS COMPUTER CODES OR THE HACKING OF MOONPAY’S SYSTEMS).
THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
Any and all of our indemnities and warranties (whether express or implied) are hereby excluded to the fullest extent permitted under law except as set forth in this Agreement. Nothing in this Agreement excludes or limits liability which may not be limited or excluded under Applicable Law.
10. GENERAL PROVISIONS
10.1 In connection with using the Stablecoins, you may access or view content or services provided by third parties, including links to web pages and services of such parties (“Third Party Content”). We do not control, endorse or adopt any Third Party Content. We have no responsibility for Third Party Content, including, without limitation, material that may be misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable in your jurisdiction. In addition, your dealings or correspondence with such third parties are solely between you and the third party. We are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings and your use of Third Party Content is at your own risk.
10.2 Unless otherwise indicated by us, the Stablecoins and any other material or content provided by MoonPay, and all intellectual property rights therein, are the property of MoonPay or our licensors or suppliers. We do not give any implied license for the use of the contents of the Stablecoins. You accept and acknowledge that the material and content contained in or delivered by the Stablecoins is made available for your personal, lawful, non-commercial use only and that you may only use such material and content for the purpose of using the Stablecoins as set forth in this Agreement. Any rights not expressly granted in this Agreement to use the materials contained on or through the Stablecoins are reserved by MoonPay in full.
10.3 If you provide any suggestions, ideas, feedback, or recommendations to us regarding the Stablecoins (“Feedback”), we may use this Feedback for any purpose and without any obligation to you. By providing us with Feedback, you give us a worldwide, perpetual, irrevocable, transferable, sublicensable, fully-paid and royalty-free license to use and exploit in any manner any and all Feedback. By submitting Feedback, you waive any legal or other rights to the fullest extent permitted under law. In responding to Feedback, we shall use commercially reasonable efforts to supply email-based support services, but cannot guarantee immediate responses, especially during times of high volume.
10.4 While using the Stablecoins, you may obtain or otherwise become aware of information about the our business, including product designs, product plans, software and technology, financial information, marketing plans, business opportunities, pricing information, discounts, inventions, and know-how, to the extent disclosed to you in connection with your use of the Stablecoins, and all other information that you knew, or reasonably should have known, was confidential information (“Confidential Information”). Confidential Information includes trade secrets as defined under applicable law (which includes the Uniform Trade Secrets Act). Confidential Information does not include information that: (a) is independently developed; (b) is or becomes public knowledge through no breach of this Agreement; or (c) is received from a third party under circumstances that do not create a reasonable suspicion that such information has been misappropriated or improperly disclosed. You may only use this Confidential Information as necessary to exercise your rights or perform your obligations in this Agreement. You agree to hold the Confidential Information in strict confidence, and to take reasonable steps to protect this Confidential Information from being accessed by unauthorized individuals, entities or other third-parties. You agree to not copy or reverse engineer, or remove any proprietary markings from any Confidential Information. You may share our Confidential Information with legal, governmental or regulatory authorities only if required by Applicable Law to do so, provided you will notify us of the request, if Applicable Law allows it.
10.5 A party’s failure or delay to enforce, or partially enforce, any provision of this Agreement shall not be construed as a waiver of any rights.
10.6 In no event shall a party be considered in breach of this Agreement to the extent the party’s obligations are prevented or delayed, directly or indirectly, by a Force Majeure Event, and the party’s period of time for performance shall be extended until such event has ended. A “Force Majeure Event” shall mean any event beyond the party’s reasonable control, including, but not limited to, flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, failure in bank performance, or equipment or software malfunction including network splits or “forks” or unexpected changes in a computer network upon which the Stablecoins rely.
10.7 In the event that any provision of this Agreement is unenforceable under applicable laws or regulations, the validity or enforceability of the remaining provisions will not be affected. To the extent any provision of this Agreement is judicially determined to be unenforceable, a court of competent jurisdiction may reform any such provision to make it enforceable. The provisions of this Agreement will, where possible, be interpreted so as to sustain its legality and enforceability.
10.8 This Agreement shall be binding on your successors, heirs, personal representatives, and assignees. You may not assign or transfer any of your rights or obligations under this Agreement without prior written consent of MoonPay, which may be withheld at MoonPay’s sole discretion. We may assign rights or delegate duties under this Agreement at our sole discretion.
10.9 You and MoonPay are independent contractors for the purposes of this Agreement. Nothing in this Agreement shall create any partnership, joint venture, agency, or consultancy.
10.10 This Agreement, along with your other applicable MoonPay Terms and Conditions, constitute the entire agreement among the parties with respect to the subject matter described in this Agreement.
10.11 For technical support requests only, contact us through the Help Center on the MoonPay website. For purposes other than technical support requests, you may contact us by registered post or courier: 8 The Green, Suite B, Dover, DE 19901. For Law Enforcement requests please direct your official document to our compliance team here. Please note, however, that all formal legal documents and claims must be formally and properly served on the correct MoonPay entity according to Applicable Law.
10.12 This Agreement and your access to and use of the Stablecoins shall be governed by and construed and enforced in accordance with the laws of the State of New York (without regard to conflict of law rules or principles of the State 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 as set forth in Section 11 or cannot be heard in small claims court, shall be resolved in the state or federal courts of New York County in the State of New York, and the United States, respectively, sitting in the State of New York.
11. DISPUTE RESOLUTION
This outlines how disputes are handled between us. THIS SECTION 11 OF THIS AGREEMENT WILL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.” Please read this Section 11 carefully. It requires that any and all claims between you and MoonPay be resolved by binding arbitration or in small claims court and, to the extent permitted by applicable law, prevents you from pursuing a class action or similar proceeding in any forum. If you are outside the United States, and attempt to bring a claim in one of those countries, arbitration is required for determination of the threshold issue of whether this Section 11 applies to you, as well as all other threshold determinations, including residency, arbitrability, venue, and applicable law. If your country of residence does not enforce arbitration agreements, the mandatory pre-arbitration dispute resolution and notification and prohibition on class actions or representative proceedings provided below still apply to the extent enforceable by law.
11.1 Scope of Arbitration Agreement. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before, on, or after the effective date of this Agreement. You agree that any dispute or claim arising out of or relating in any way to the subject matter of the Agreement, to your access or use of the Stablecoins, to any advertising or marketing communications regarding MoonPay or the Stablecoins, to any products or services sold or distributed through the Stablecoins that you received, or to any aspect of your relationship or transactions with MoonPay, will be resolved by binding arbitration, rather than in court, except as otherwise required by law or as otherwise provided in this Arbitration Agreement. In addition, to the extent permitted by applicable law, either you or MoonPay may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). Either you or MoonPay may also, to the extent permitted by applicable law, apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual. You may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
11.2 CASES HAVE BEEN FILED AGAINST MOONPAY—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES.
11.3 IF YOU AGREE TO ARBITRATION WITH MOONPAY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST MOONPAY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
11.4 Informal Resolution. You and MoonPay agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. You and MoonPay therefore agree that, before either you or MoonPay demands or attempts to commence arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. For sake of clarification only, the informal dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference, unless mutually agreed to by the parties. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify MoonPay that you intend to initiate an informal dispute resolution conference, email [email protected], providing your name, telephone number associated with your MoonPay account (if any), the email address associated with your MoonPay account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
11.5 Arbitration Rules and Forum
This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certify completion of the informal dispute resolution conference pursuant to Section 11.4. If this notice is being sent to MoonPay, it must be sent by email to the counsel who represented MoonPay in the informal dispute resolution process, or if there was no such counsel, then by mail to General Counsel, at [address]. The arbitration will be conducted by ADR Services, Inc. under its rules and pursuant to the terms of this Agreement. Once the notice certifying completion of the informal dispute resolution conference has been served, the party seeking to arbitrate must then file their arbitration demands with ADR Services, Inc. The demand must include (A) the name, telephone number, mailing address, and email address of the party seeking arbitration; (B) a statement of the legal claims being asserted and the factual bases of those claims; (C) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (D) the signature of the party seeking arbitration. Disputes shall be subject to ADR Services, Inc.’s most current version of its Arbitration Rules, available as of February 3, 2023 at https://www.adrservices.com/services/arbitration-rules or by calling ADR Services, Inc. at 310-201-0010. The fees that shall apply to arbitrations administered by ADR Services, Inc. are set forth on ADR Services, Inc.’s website, available as of February 3, 2023 at https://www.adrservices.com/rate-fee-schedule/. Specifically, the fees set forth in ADR Services, Inc.’s Mass Consumer Non-Employment Arbitration Fee Schedule shall apply when twenty (20) or more arbitration claims are filed which: (X) involve the same or similar parties; (Y) are based on the same or similar claims which arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact; and (Z) involve the same or coordinated counsel for the parties. In all other circumstances, the fees set forth in ADR Services, Inc.’s General Fee Schedule shall apply, except that MoonPay will pay the portion of the initial case opening fees (if any) that exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. Payment of all filing, administration, and arbitration fees will be governed by ADR Services, Inc.’s rules. If the arbitrator finds that you cannot afford to pay ADR Services, Inc.’s filing, administrative, hearing, and/or other fees and cannot obtain a waiver of fees from ADR Services, Inc., MoonPay will pay them for you. Any finding that a claim or counterclaim violates the standards set forth in Federal Rule of Civil Procedure 11 shall entitle the other party to recover their attorneys’ fees, costs, and expenses associated with defending against the claim or counterclaim. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68 or a state or local equivalent, if applicable, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made.
If ADR Services, Inc. is not available to arbitrate, the parties will mutually select an alternative arbitral forum. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute. You may choose to have the arbitration conducted by telephone, video conference, or in person in the county where you live or at another mutually agreed location. The parties agree that all of the arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by applicable law. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Agreement, either party may seek to enjoin the arbitration proceeding in court, and the arbitration shall automatically be stayed pending the outcome of that proceeding.
If the arbitration award includes any injunction or a monetary award that exceeds $100,000, then either party shall have the right to appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing party within fourteen (14) days after the award has become final. ADR Services shall administer the appeal consistent with the JAMS Optional Arbitration Appeal Procedures, available as of February 3, 2023 at https://www.jamsadr.com/appeal/.
11.6 Arbitrator Powers. The arbitrator, and not any federal, state, provincial, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable, to the extent permitted by applicable law, except with respect to Section 11.8 below (Waiver of Class, Consolidated, and Representative Actions; Waiver of Public Injunctive Relief), the enforceability of which can only be determined by a court. All disputes regarding the payment of arbitrator or arbitration-organization fees, including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court or arbitration administrator. The arbitration will decide the rights and liabilities, if any, of you and MoonPay. Except as expressly agreed to in Section 11.9 of this Agreement (Batch), the arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator may issue orders (including subpoenas to third parties, to the extent permitted by law) allowing the parties to conduct discovery sufficient to allow each party to prepare that party's claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes. For example, the arbitrator shall preclude oral discovery of either party’s current or former high-level officers absent a showing that the officer has unique, personal knowledge of discoverable information and less burdensome discovery methods have been exhausted. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award, on an individual basis, monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and MoonPay.
11.7 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND MOONPAY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and MoonPay are instead electing to have all disputes resolved by arbitration, except as specified in Section 11.1 above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
11.8 Waiver of Class, Consolidated, and Representative Actions; Waiver of Public Injunctive Relief. EXCEPT AS EXPRESSLY AGREED TO IN SECTION 11.9 OF THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND MOONPAY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS EXCEPT AS SET FORTH IN SECTION 11.9. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER EXCEPT AS SET FORTH IN SECTION 11.9. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) a civil court of competent jurisdiction finds all or part of the Waiver of Class, Consolidated, and Representative Actions is unenforceable, the class, collective, or representative action must be litigated in a civil court of competent jurisdiction, but the portion of the Waiver of Class, Consolidated, and Representative Actions that is enforceable shall be enforced in arbitration. The portion of such dispute proceeding in court shall be stayed pending the conclusion of the arbitration. Notwithstanding any other provision in this Agreement, any claim that all or part of the waivers set forth in Section 11.9 is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. This provision does not prevent you or MoonPay from settling claims on a class, collective, or representative basis.
11.9 Batch Arbitrations. To the extent permitted by applicable law, to increase efficiency of resolution, in the event 100 or more similar arbitration demands against MoonPay, presented by or with the assistance or involvement of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period: (A) the parties shall cooperate to group the arbitration demands into randomized batches of no more than 100 demands per batch (plus, to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); (B) claimants’ counsel shall organize and present the batched demands to the arbitration provider in a format as directed by the arbitration provider; (C) the arbitration provider shall provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch; and (D) the arbitration provider shall send one set of disclosures per batch and will set up one Arbitration Management Conference per batch. You agree to cooperate in good faith with MoonPay and the arbitration provider to implement such a batch approach to resolution and fees. Disagreements over the applicability of this batch arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this section. Notwithstanding any provision in the Agreement to the contrary, batch arbitrations shall take place in San Francisco, California or, if the parties prefer, by video conference. The parties may also agree to conducting arbitration based on written submissions alone.
11.10 Opt Out. MoonPay’s updates to this Agreement do not provide a new opportunity to opt out of the Arbitration Agreement for Stablecoin Holders who had previously agreed to a version of this Agreement, and did not validly opt out of arbitration. MoonPay will continue to honor the valid opt outs of Stablecoin Holders who validly opted out of the requirement to use arbitration in a prior version of this Agreement. If you become a Stablecoin Holder for the first time on or after the effective date of this Agreement, you may opt out of this Arbitration Agreement. If you do so, neither you nor MoonPay can force the other to arbitrate as a result of this Agreement. To opt out, you must notify MoonPay in writing no later than 30 days after first becoming a Stablecoin Holder. Your notice must include your name and address, your MoonPay username (if any), the email address you currently use to access your MoonPay account (if you have one), and a clear statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: [email protected]. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
11.11 Survival. This Arbitration Agreement will survive any termination of your relationship with MoonPay.
11.12 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if MoonPay makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to MoonPay.
11.13 Entire Agreement; Severability. This Arbitration Agreement is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Agreement. In the event any portion of this Arbitration Agreement is deemed unenforceable, the remainder of this Arbitration Agreement will be enforceable, and the remainder of the Agreement shall be unmodified.
12. E-SIGN DISCLOSURE AND CONSENT.
12.1 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: (a) legally required disclosures, notices and other communications associated with your access to or use of the Stablecoins, including, but not limited to information about fees or charges, and any and all legally required pre- and post-transaction disclosures; (b) customer service communications; (c ) privacy policies and notices; (d) changes to this Agreement, (e) statements, information and records regarding your transactions; (f) information regarding the debiting or charging, as applicable of your selected payment method; (g) any and all legally required error resolution policies, and responses to claims filed in connection with your access to or use of the Stablecoins; (h) any other communications related to your access to and/or use of the Stablecoins; and (i) with your consent, marketing and other promotional communications (collectively, “Communications”).
12.2 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.
12.3 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 email, (ii) by access to a web site that we will designate in an email notice we send to you at the time the information is available, or (iii) to the extent permitted by law, on the MoonPay website 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.
12.4 How to Update Your Records. To receive electronic Communications, at the time that you first use the Stablecoins, you must provide us with a true, accurate and complete email address and your contact information, and you must promptly notify us of any changes to this information. You can update information (such as your email address) through the Site.
12.5 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 email 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.
12.6 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 the Help Center on the MoonPay website or write us at MoonPay, 8 The Green, Suite B, Dover, DE 19901. or contacting us at [email protected].
12.7 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 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 Stablecoins. Withdrawing consent to receive marketing communications only does not preclude use of the Stablecoins, 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.
12.8 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.
12.9 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.
