Last Updated: March 31, 2017
Eligibility and Agreement. If you use our Services these Terms apply. If you do not agree to these Terms, you must not use our Services. You can use our Services only if you can lawfully enter into an agreement to these Terms under applicable law. If you use our Services, you agree to do so in compliance with these Terms and with applicable laws and regulations.
Changes to These Terms. We may make changes to these Terms, including when there are changes in our Services, technology, regulation and for other reasons. If we do, we will provide you notice of such changes by posting the updated Terms on our website and changing the “Last Updated” date above. Any amended Terms will become effective no earlier than 14 days after they are posted and apply prospectively to use of the Services after such changes become effective, except that changes addressing new functions of the Xapo Services or changes made for legal reasons will be effective immediately. Your continued use of the Services following the effective date of such changes will constitute your acceptance of such changes. If you do not agree to any amended Terms, you must discontinue using the Services.
The Xapo Services. Xapo provides a way to store, use, and manage bitcoins, using our wallet service, which we call Xapo Wallet, and the Xapo deep cold storage service, which we call Xapo Vault. Our Services may evolve over time. This means we may make changes, replace, or discontinue (temporarily or permanently) our Services at any time for any reason with or without notice. In this case, you may be prevented from accessing or using our Services. If, in our sole discretion, we decide to permanently discontinue our Services, we will provide you with notice via our website. Additional services include the following:
Xapo Bitcoin Reserve. Xapo maintains a proprietary reserve of bitcoins (“Bitcoin Reserve”) that is designed to ease the impact of bitcoin losses that are a direct consequence of certain incidents, as described below, and that it are not related in any way with your own actions, omissions or errors. The Xapo Bitcoin Reserve is provided at no charge to Xapo users.
The Xapo Bitcoin Reserve is designed to cover direct and effective losses suffered by users as a result of attacks of hackers to our systems, theft by any third party and/or Xapo employee from our systems or facilities, break-ins at a physical location of our vaults, and/or our bankruptcy, which are not due to or related to your acts, omissions or errors (“Qualifying Losses”).
The Xapo Bitcoin Reserve does not cover cases of hacking of users’ devices and personal accounts such as phones, computers, email accounts, etc. For example, a loss suffered as a result of your failure to maintain adequate security, control or confidentiality of your account information, including any personal identification numbers (PINs), passwords, API keys or other codes associated with your account and any activity occurring within that account, will not be considered a Qualifying Loss.
The Xapo Bitcoin Reserve is primarily designed to cover the loss of bitcoins stored by our users in the Xapo Vault, our deep cold storage service that incorporates multiple layers of cryptographic security to help secure your bitcoins. These processes include multi-factor authentication and private key segmentation between others.
The Xapo Bitcoin Reserve is also designed to cover bitcoins held by Xapo in “Hot Storage” (i.e. connected to a network in order to meet the liquidity needs of Xapo Wallet users) and it is intended to hold an equal or greater amount of bitcoins than the bitcoins held by Xapo in Hot Storage.
WHILE WE HAVE DESIGNED THE XAPO BITCOIN RESERVE TO HELP LESSEN THE IMPACT OF BITCOIN LOSSES THAT ARE OUTSIDE OF OUR USERS’ CONTROL, WE DO NOT AND CANNOT REPRESENT OR WARRANT THAT THE XAPO BITCOIN RESERVE WILL HAVE A SUFFICIENT NUMBER OF BITCOINS TO COVER ANY OR ALL LOSSES SUFFERED BY OUR USERS IN THESE CIRCUMSTANCES.
In the event of a Qualifying Loss, bitcoins stored by users in our Vault will have priority to be covered by the Xapo Bitcoin Reserve. Qualifying Losses by Wallet users shall only be covered by the Xapo Bitcoin Reserve after the Qualifying Losses of Vault users are already covered, because bitcoins held in Wallets are subject to a higher propensity for cyber attack, and we reward users that take their own security measures, including preferring our Vault Service.
In these cases, the Xapo Bitcoin Reserve shall cover the Qualifying Losses in the following priority order:
(i) Qualifying Losses stored in the Xapo Vault of users. If the Xapo Bitcoin Reserve is not enough to cover 100% of Vault users Qualifying Losses, it shall cover Vault users losses on a pro rata basis, based upon the total value of their Qualifying Losses in proportion to the total value of bitcoin lost by all Xapo users as a result of the incident.
(ii) Qualifying Losses stored in the Wallet of our users. If the Xapo Bitcoin Reserve is not enough to cover 100% of Wallet users Qualifying Losses, it shall cover Wallet users losses on a pro rata basis, based upon the total value of their Qualifying Losses in proportion to the total value of bitcoin lost by all Xapo users as a result of the incident.
The use of the Xapo Bitcoin Reserve is optional for our users. As a condition to receiving any bitcoins and/or funds from the coverage of the Xapo Bitcoin Reserve, you agree to (i) timely cooperate with Xapo upon its request in connection with any coverage claim relating to your bitcoins, including by timely providing any information or documentation that Xapo reasonably requests, and (ii) sign any documents, including but not limited to a release of further claims against Xapo, that Xapo may require.
Bitcoin Transactions. Xapo cannot and does not guarantee the value of bitcoins. You acknowledge and agree that the value of bitcoins is highly volatile and that buying, selling, and holding bitcoins involves a high risk. Additionally, the bitcoin consensus network is solely responsible for verifying and confirming proposed transactions that you submit via the Services, and Xapo cannot and does not confirm, cancel, or reverse bitcoin-to-bitcoin transactions, other than confirmation of the bitcoin network’s completion of a transaction. The bitcoin network is operated by a decentralized network of independent third parties. Once a transaction request has been submitted to the bitcoin network via the Services, the bitcoin network will automatically complete or reject the request and you will not be able to cancel or otherwise modify your transaction request. You acknowledge and agree that Xapo is not responsible for any errors or omissions that you make in connection with any bitcoin transaction initiated via the Services. The Services help you submit your bitcoin transaction request for confirmation to the bitcoin network. However, Xapo has no control over the bitcoin network and therefore cannot and does not ensure that any transaction request you submit via the Services will be completed. You acknowledge and agree that the transaction requests you submit via the Services may not be completed, or may be substantially delayed, by the bitcoin network. When you complete a transaction request via the Services, you authorize us to submit your transaction request to the bitcoin network in accordance with the instructions you provide via the Services.
To increase the security of your bitcoins storage at Xapo, Xapo has designed high-level security measures to the Services. For that reason, Xapo bitcoin sending addresses are not designed to receive bitcoin for Xapo users. Therefore, Xapo cannot and does not guarantee that any bitcoin transaction reversed by a third party, and/or bitcoins sent directly to any Xapo sending address, shall be received by the Xapo user intended to receive such reversed transaction or bitcoins sent.
Bitcoin transactions & transmission delays. Xapo Services involves several security measures and layers to increase the security of your bitcoins storage at Xapo. For this reason, transaction(s) to a bitcoin address outside Xapo for significant amount of bitcoins, may take longer than a standard transaction(s) of Bitcoin. You acknowledge and agree that a transaction(s) to a bitcoin address outside of Xapo system for significant amount of bitcoins may be delayed.
Before processing any transaction(s), Xapo reserves the right to take necessary time for the purpose of verifying your identity, verifying your activity and conducting security and other internal procedures in relation to your account.
Wallet Address and Private Key. When you create an account, the Services generate and store a cryptographic private and public key pair that you may use to send and receive bitcoins via the bitcoin network. The public key generated by the Services serves as your bitcoin wallet address, and may be shared with the bitcoin network and with others to complete bitcoin transactions. The private key uniquely matches the wallet address and must be used in connection with the wallet address to authorize the transfer of bitcoins from or to that wallet address.
Custody of Bitcoins. Xapo is a custodian of any bitcoins transferred to a Xapo Wallet or Xapo Vault. Xapo does not obtain any legal or beneficial right, title or interest in your bitcoins that you store in your Wallet and Vault. Please note, however, that Xapo may give you a small amount of bits in connection with your creation of an account with Xapo (bits are a fractional amount of bitcoins equal to 0.000001 of one bitcoin), but unless and until you have verified your identity with Xapo, you will not have a legal or beneficial right to these bits from Xapo and may be restricted in your ability to utilize the Xapo Services. Once you have verified your identity with Xapo and Xapo has determined that your use of the Xapo Services complies with applicable laws, these will become your bits and Xapo will no longer have any legal or beneficial right to these bits.
Ownership of Intellectual Property Rights. We and our licensors retain all right, title, and interest (including all copyright, trademark, patent, trade secrets, and all other intellectual property rights) in our Services and all content on our Services, including our trademarks, service marks, designs, logos, URLs, and trade names that are displayed on our Service, which we refer to in these Terms, collectively, as the Xapo Materials. We hereby grant you a limited, nonexclusive, and non-sublicensable license to access and use the Xapo Materials for your personal or internal business use. Such license is subject to these Terms and does not permit any resale of the Xapo Materials; the distribution, public performance or public display of any Xapo Materials; modifying or otherwise making any derivative uses of the Xapo Materials, or any portion thereof; or any use of the Xapo Materials other than for their intended purposes. The license granted under this Section will automatically terminate if we suspend or terminate your access to the Services. We will own exclusive rights, including all intellectual property rights, to any feedback, suggestions, ideas or other information or materials regarding Xapo or our Services that you provide, whether by email, posting through our Services or otherwise, which we refer to in these Terms as Feedback. Any Feedback you submit is non-confidential and will become the sole property of Xapo. We will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You may not use, copy or retransmit anything on our website without our permission. We reserve all rights not expressly granted herein.
Authorized Uses of Our Services. You are permitted to use our Services, only as we have authorized. You are responsible for ensuring that your personal information in your account profile is current and correct, including your email address and mobile phone number. You are also responsible for maintaining adequate security, control and confidentiality of your account information, including any personal identification numbers (PINs), passwords, API keys or other codes associated with your account and any activity occurring within that account. The loss or compromise of this information may result in unauthorized access of your account, which may result in loss or theft of any bitcoins held in your account. If you believe your account has been compromised, need to report a security incident, experience any operational problems, or have a security concern, please contact us describing the issue at hand as thoroughly as possible including the date, type of problem and part of the Xapo site or Xapo Services where you experienced that problem. You are responsible for (i) immediately notifying us of any unauthorized use of your password or account or any other breach of security, and (ii) ensuring that you exit from your account at the end of each session when accessing the Xapo Services. We have no responsibility for any loss that you suffer as a result of failing to comply with this section or your failure to follow or act on any notices or alerts that we may send to you.
Using SMS/Text. To use the Xapo Services, you must provide a valid mobile phone number. This number is used as part of the authentication process. As part of using the Xapo Services, you are agreeing to receive SMS/text messages from us. Please note that while we do not charge you for SMS/text messages, your mobile carrier’s standard messaging rates will apply. Failure to provide a valid mobile phone number may result in restriction of your use of the Xapo Services. If Xapo suspects that your mobile number is invalid or that you are using a VOIP service to circumvent the requirement to provide a valid mobile phone number, Xapo may suspend or otherwise restrict your use of the Xapo Services.
Accurate Information; Registration Requirements. Xapo reserves the right in its sole discretion to not open accounts and to temporarily or permanently suspend accounts, including where required or recommended by applicable governmental, regulatory or law enforcement requirements, including where you fail to provide sufficient information to verify your identity with Xapo. The Xapo Services are for the use only of the registered account holder. You agree that the information you provide to Xapo during the account creation and any subsequent identity verification processes is accurate and complete, and will be updated as necessary to keep it so. If you are under 18 years of age, you are not authorized to use the Xapo Services, with or without registering.
Prohibited Activities. You agree that you will not use the Xapo Services to perform any type of illegal activity of any sort or to take any action that negatively affects the performances of the Xapo Services. You may not engage in any of the following activities via the Services, nor may you help a third party in any such activity: (1) attempt to gain unauthorized access to our Services or another user’s account, (2) make any attempt to bypass or circumvent any security features, (3) violate any law, statute, ordinance, or regulation, (4) reproduce, duplicate, copy, sell or resell our Services for any purpose except as authorized in these Terms, (5) engage in any activity that is abusive or interferes with or disrupts our Services. If you are blocked by Xapo from accessing the Xapo Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Use of our Services in connection with any transaction involving illegal products or services is prohibited. Xapo reserves the right to temporarily or permanently suspend your account or otherwise restrict your use of the Xapo Services if any violation of this section occurs.
Suspended Accounts. As stated in the previous sections, Xapo reserves the right in its sole discretion to temporarily or permanently suspend accounts. This account blocking or suspension may be a consequence, among others, of inconsistent information regarding your identity (which are reasonable on the sole discretion of Xapo), a pending compliance review, the request of a third party, the request and/or order of an authority, governmental body, regulator, justice entity, police, etc., which in the sole discretion of Xapo are reasonable.
YOU UNDERSTAND AND AGREE THAT YOU MAY NOT BE ABLE TO ACCESS FUNDS IF YOUR ACCOUNT IS SUSPENDED OR IS OTHERWISE LIMITED, AS DETAILED IN THIS SECTION.
In case the cause of the suspension is resolved, Xapo may require you to provide an external bitcoin wallet address in order to send you the available funds in your account, or may transfer funds to a third party upon an order of a competent regulator, justice entity, judge, court or other which is reasonable in the sole discretion of Xapo.
Export Controls. The Xapo Services may be subject to export control regulations under applicable law. By using the Xapo Services you represent that you are not an individual or entity that is, or an entity owned or controlled by persons or entities that are, (i) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, or any other governmental authority with jurisdiction over Xapo or the Xapo Services; (ii) identified on the Denied Persons, Entity, or Unverified Lists of the U.S. Department of Commerce’s Bureau of Industry and Security; or (iii) located, organized or resident in a country or territory that is, or whose government is, the subject of U.S. economic sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan, or Syria. You further represent that you will not use the Xapo Services to conduct any transaction with or on behalf of any person or entity listed in clauses (i) through (iii) above or otherwise in violation of law. Xapo may cease to provide the Xapo Services to you for any reason, and with no notice, if it determines that you have violated any of the above representations. You understand and consent that Xapo may be legally required to detain, to deny your access to, and to report to one or more governmental authorities, such of your property or property interests as are in Xapo’s possession or control in the event of certain sanctions imposing these obligations. These representations, covenants, and obligations are continuing and you agree to notify Xapo immediately in writing if your status under any of the above covenants changes.
Trademarks. Xapo and the Xapo logo are our or our licensor’s trademarks, registered trademarks or service marks. Any other trademarks mentioned in our website or mobile apps are the property of their respective owners.
Disclaimer of Warranties. OUR SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY OF ANY KIND. Your use of our Services is at your sole risk. We and our licensors, service providers or subcontractors (if any) make no representations or warranties about the suitability of the information, software, products and services contained in our Services for any purpose or their compliance with any accounting rules, principles or laws, and expressly disclaim any representation or warranty that the Services will be free from errors, viruses or other harmful components, that communications to or from the Services will be secure and not intercepted, that the services and other capabilities offered from the Services will be uninterrupted, or that their content will be accurate, complete or timely. EXCEPT AS EXPRESSLY STATED IN THESE TERMS, WE DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH IN THESE TERMS. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
No Advice. Xapo is not acting and cannot act as an advisor, including as to any financial, legal, investment, insurance and/or tax matters. Any information provided by Xapo is for general information only. You are solely responsible for determining whether any contemplated transaction is appropriate for you.
Indemnification. You agree to indemnify, defend and hold us, our employees, agents, consultants, subsidiaries, partners, affiliates, and licensors, harmless against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals) arising from or in any way related to your use of our Services, your violation of these Terms, or your violation of any rights of any other person or entity.
In no event will the aggregate liability of Xapo, our licensors, service providers, or subcontractors for any loss or damage that arises out of, or is connected with, any of the occurrences described above exceed, the greater of $100 or the service fees that you paid to us for the service we provide through the Services during the month during which the incident occurred. The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose. The limitations of liability provided in these Terms inure to the benefit of us, our licensors, service providers and subcontractors.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Severability. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Arbitration and Governing Law. PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.
You and Xapo agree to arbitrate any dispute arising from these Terms or your use of our Services, except for disputes in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Xapo agree to notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Xapo shall be sent to firstname.lastname@example.org. You and Xapo further agree: (a) to attempt informal resolution prior to any demand for arbitration; (b) that any arbitration will occur in New York, New York; (c) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (d) that the courts in New York, New York have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by these Terms and the laws of New York, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND XAPO WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR REPRESENTATIVE ACTION OR PROCEEDING.
Limitations. To the extent allowed by applicable law, you agree that you will bring any claim or cause of action arising from or relating to your access or use of our Services within two years from the date on which such claim or action arose or accrued or such claim or cause of action will be irrevocably waived.
Unclaimed Property. Under applicable law, after a specified period of inactivity by you with respect to your Xapo account, Xapo may be required to report and/or remit any bitcoins it is holding in custody for you in accordance with unclaimed property laws.
No Waiver. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of that right or provision.
Assignment; Entire Agreement. Xapo may assign these Terms to its parent company, affiliate or subsidiary, or in connection with a merger, consolidation, or sale or other disposition of all or substantially all of its assets. These Terms, together with any other agreements that apply to you, such as our Developer Terms, constitute the entire and exclusive agreement between us and you regarding its subject matter, and supersede and replace any previous or contemporaneous written or oral contract, warranty, representation or understanding regarding its subject matter.
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