Merchant Terms of Use

Merchant Terms of Use

TERMS EFFECTIVE ON 8 DECEMBER 2022

These Merchant Terms of Use (the “Terms”) govern the use of the products, services or any other features, technologies or functionalities related to merchant payment acceptance services (the "Acceptance Services") provided by BitPay (“BitPay”, “we”, “our”, or “us”) through BitPay’s website, API or through any other means to you (“Merchant”, “you” or “your”). By using the Acceptance Services, you accept these Terms and agree to be bound by them, confirm that you have read, understood, and accepted all of the provisions contained herein, including, without limitation, Section 18.7, Governing Law; Arbitration; Waiver of Class Action.

1. Our Services

BitPay is a blockchain/cryptocurrency payment processor that enables you to accept cryptocurrencies as a payment method in exchange for goods or services you sell to your customers (“Shoppers”).

BitPay is not a cryptocurrency exchange, nor does it provide cryptocurrency custody as part of the Acceptance Services. The Acceptance Services are only available to businesses that sell products or services and registered charitable organizations that accept donations.

By using the Acceptance Services, you authorize BitPay to act as your agent and to take any and all actions that we think are necessary or desirable to provide the Acceptance Services and to comply with applicable laws and regulations. Payment by a Shopper to BitPay is considered the same as payment made directly to you and limits the Shopper's outstanding obligations to the extent of the payment.

2. Contracting Entity and Regulatory Compliance

2.1 Contracting Entity

Unless you are located in one of the countries listed in the next sentence your relationship pursuant to these Terms is with BitPay, Inc., a Delaware, USA corporation, having its principal offices at 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499, USA. If you are located in Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland or the United Kingdom your relationship pursuant to these Terms is with BitPay B.V., a Dutch private company with limited liability, having its registered address at Stadsplateau 7 WTC office 7, 3521 AZ, Utrecht, The Netherlands and registered with the trade register of the Dutch Chamber of Commerce under number 58655891. If you are receiving settlement in Australian Dollars, Canadian Dollars, Great British Pounds, Eurozone Euros (EUR), Mexican Pesos (MXN), New Zealand Dollars (NZD), South African Rand (ZAR), or Swiss Francs (CHF), your relationship pursuant to these Terms may be with BitPay, Inc. or BitPay, B.V., depending on settlement preferences of BitPay and you.

2.2 Our Regulatory Compliance

BitPay, Inc. is subject to U.S. laws and regulations. This includes the Bank Secrecy Act, the economic and trade sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury, the USA PATRIOT Act, and other anti-money laundering (AML) and anti-terrorist financing (ATF) laws. BitPay, Inc. is also a registered Money Service Business with the Financial Crime Enforcement Network of the U.S. Department of the Treasury (FinCEN) and is a licensed money transmitter in the U.S. states where applicable law requires it to be licensed. As required by applicable laws and regulations, BitPay, Inc. maintains a comprehensive AML/ATF/Sanctions compliance program.

BitPay B.V. is subject to applicable Dutch and EU laws and regulations, which includes the Dutch Act on the Prevention of Money Laundering and Terrorism Financing (Wet ter voorkoming van witwassen en financieren van terrorisme (“Wwft”)) and the Dutch Sanctions Act (Sanctiewet 1977) and the regulations promulgated thereunder. BitPay B.V. is registered with and supervised by the Dutch Central Bank (De Nederlandsche Bank N.V.) pursuant to Section 23b(1) of the Wwft.

3. Representations and Warranties

You represent and warrant that:

• The individual accepting these terms on behalf of the Merchant is of the age of majority, and has all necessary power, capacity and authority to bind the Merchant hereto;
• You have all necessary right, power, authority and ability to enter into and fulfill your obligations under these Terms and your use of the Acceptance Services;
• Your business entity is duly organized, validly exists, is in good standing under the laws of the state and country of its formation, and is duly qualified and in good standing in each jurisdiction in which the conduct of its business requires it to so qualify;
• At the time you become bound by these Terms, you are not a consumer (consument) as such term is defined in, and used for the purposes of, the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht) and the Dutch Civil Code (Burgerlijk Wetboek), and you undertake to notify us immediately if at any time you become a consumer. Broadly, in this context, a consumer is an individual acting for purposes other than a trade, business or profession;
• Your use of the Acceptance Services will not contravene any applicable international, federal, state or local laws or regulations, including tax laws and regulations;
• You ensure that your use of the Acceptance Services does and at all times will comply with all applicable anti-money laundering/anti-terrorist funding compliance laws and regulations, including, without limitation, all OFAC-administered sanctions programs and any other sanctions programs that may apply to you based on the jurisdiction(s) in which you operate your business and serve your customers;
• Your use of the Acceptance Services will violate neither these Terms nor any other applicable terms of use; and
• All information that you have provided to us, and may from time to time provide to us, is and shall continue to be true and complete, and shall be timely updated and corrected to maintain its status as true and complete.

4. Your Merchant Account (“Account”)

4.1 Account Opening and Registration

BitPay, Inc. is a regulated financial services business and a licensed money transmitter in the U.S., and BitPay B.V. is regulated by the Dutch Central Bank pursuant to Section 23b(1) of the Wwft. As such, we are required to collect certain information from Merchants to comply with anti-money laundering and anti-terrorist funding laws and regulations. Therefore, as part of establishing a BitPay Merchant Account, at a minimum you will be asked to submit business-related information such as name, mailing address, physical address, phone number, email address, information relating to the ultimate beneficial owner(s) or the individual(s) having significant control over the business such as tax identification number and government-issued identification, legal name, fictitious name (i.e. DBA name), company website, bank account details to be used for settlement of transactions made using the Acceptance Services, the nature of your expected transactions, and your field of industry. You may be asked to submit additional information and/or documents to enable us to verify your identity and assess business risk, such as entity formation documentation, compliance program documentation, and information regarding your Shoppers.

The information you provide at the time of opening the Account must be accurate and complete, and you must inform us within ten (10) business days of any changes to such information. BitPay has the right to reject your Account registration, to later close your Account, or to restrict the provision of the Acceptance Services to you if you do not provide and maintain accurate, complete and satisfactory information.

4.2 Transaction Processing Limits

BitPay imposes daily and annual transaction processing volume limits per Account. If you wish to increase your limit, you will be required to apply for an upgrade from your Account dashboard (“Dashboard”) and provide us with documentation necessary to qualify for that upgrade. Depending on the upgrade request, you may be required to provide additional information and documentation. Requests will not be approved until all required documentation has been reviewed and the accuracy and authenticity of the information has been confirmed. A description of the processing limits and the upgrade process is available in our FAQs here: support.bitpay.com/hc/en-us/articles/206003676-How-do-I-raise-my-approved-processing-volume-tier-limit-

4.3 Shopper Verification

Your Shoppers may be required to complete a verification process at the time of payment, depending on the amount of the transaction, as part of our AML/ATF compliance obligations. This process is known as creating a “BitPay ID”. Help articles regarding BitPay ID are available in our FAQs here: support.bitpay.com/hc/en-us/articles/360037486651-How-do-I-complete-the-BitPay-ID-process-

4.4 Prohibited Use and Business

4.4.1 Prohibited Use

In connection with your use of the Acceptance Services, and your interactions with other users and third parties, you agree you will not engage in the following Prohibited Uses. This list is non-exhaustive and we reserve the right to modify it at any time. It is within our sole discretion to determine whether an activity falls into one of these categories. If you are uncertain as to whether or not your use of the Acceptance Services involves a Prohibited Use or have questions about how these requirements apply to you, please contact us at https://support.bitpay.com.

• Unlawful Activity: Actions which violate, or would assist in violation of, any law, statute, ordinance, or regulation, including applicable sanctions programs including but not limited to the U.S. Department of Treasury's Office of Foreign Assets Control ("OFAC") and the Dutch Sanctions Act, or which would involve proceeds of any unlawful activity; activity which would publish, distribute or disseminate any unlawful material or information.
• Abusive Activity: Actions which impose an unreasonable or disproportionately large load on our infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information; transmit or upload any material to our computer systems, networks or sites that contain viruses, trojan horses, worms, or any other harmful or deleterious programs; attempt to gain unauthorized access to our computer systems, networks or sites or our other customers’ Accounts, computer systems or networks connected to us, through any other means; interfere with another individual's or entity's access to or use of the Acceptance Services; use information of another party to access or use our computer systems, networks or sites, except in the case of specific Merchants which are specifically authorized by a user to access such user's Account and information; transfer your Account access or rights to your Account to a third party, unless by operation of law or with the express written permission of BitPay; or harvest or otherwise collect information from our computer systems, networks or sites about others, including without limitation email addresses, without proper consent.
• Abusive Actions Against Others: Actions which defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hateful or violent acts against others.
• Fraud: Actions which operate to defraud us, our users, or any other person; provide any false, inaccurate, or misleading information to us.
• Intellectual property infringement: Transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law, including but not limited to sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; use of any BitPay intellectual property, name, or logo, including use of BitPay trade or service marks, without express consent from BitPay or in a manner that otherwise harms BitPay or any BitPay brand; any action that implies an untrue endorsement by or affiliation with BitPay.

4.4.2 Prohibited Business

In addition to the Prohibited Uses, the following categories of businesses, business practices, and items for sale are prohibited from the Acceptance Services. Most Prohibited Business categories are imposed by the requirements of our banking providers or regulators. This list is non-exhaustive and we reserve the right to modify it at any time. It is within our sole discretion to determine whether an activity falls into a Prohibited Business category. If you are uncertain as to whether or not your use of the Acceptance Services involves a Prohibited Business, or have questions about how these requirements apply to you, please contact us at https://support.bitpay.com.

• Drugs and drug paraphernalia (e.g., narcotics, controlled substances, and any equipment designed for making or using drugs);
• Marijuana/cannabis dispensaries and related products and businesses;
• Weapons, munitions, gunpowder and other explosives (including fireworks);
• Toxic, flammable, and radioactive materials;
• Pseudo-pharmaceuticals;
• Substances designed to mimic illegal drugs;
• Sexually explicit content;
• Sexually-related services;
• Pyramid and investment schemes, multi-level marketing schemes, and other unfair, predatory or deceptive practices;
• Items used for speculation or hedging purposes (such as derivatives);
• Credit and collection services;
• Items that infringe or violate any intellectual property rights such as copyrights, trademarks, trade secrets, or patents, including counterfeit or unauthorized goods;
• Products and services with varying legal status from state to state;
• Transactions that disclose the personal information of third parties in violation of applicable law; and
• Transactions related to cloud-mining.

4.5 Restricted Business

If you engage in any of the following categories of businesses, business practices, and items for sale, you will only be allowed to transact as expressly authorized by us and may be required to agree to additional conditions, make supplemental representations and warranties, complete enhanced onboarding procedures, and operate subject to restrictions. This list is non-exhaustive and we reserve the right to modify it at any time. It is within our sole discretion to determine whether an activity falls into one of these categories. If you are uncertain as to whether or not your use of the Acceptance Services involves a Restricted Business, or have questions about how these requirements apply to you, please contact us at https://support.bitpay.com.

• Charitable organizations;
• Religious/spiritual organizations;
• Money Services Business as defined by FinCEN of the United States Department of the Treasury;
• e-Wallets;
• Foreign and currency exchange services;
• Sale or trade of cryptocurrencies;
• Transactions associated with purchases of annuities or lottery contracts, lay-away systems, banking, offshore banking, transactions to finance, investing, investment related products; and
• Transactions involving gambling or any activity requiring an entry fee and a prize, including but not limited to casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, and sweepstakes, if you and your Shoppers are located exclusively in jurisdictions where such activities are permitted by law.

4.6 Guarding Your Password

You will choose a password when registering for your Account. You are responsible for maintaining the confidentiality of your password and Account access credentials. You are fully responsible for all activities that occur with the use of your password or Account. Please notify us immediately if you become aware of any unauthorized use of your password or Account or any other breach of your security which may compromise your password or Account. You may not allow third parties or unauthorized users to use your Account. We will not be liable for any loss that you may incur as a result of someone else using your password or Account, either with or without your knowledge. You may notify BitPay of a security breach regarding your password or Account by emailing support@bitpay.com or using BitPay’s support wizard: https://support.bitpay.com.

4.7 Records

4.7.1 Our Obligations

Pursuant to applicable laws and regulations, BitPay is required to maintain records of all documentation and information related to your Account for the duration that your Account is active and after your Account is closed.

4.7.2 Your Obligations

Pursuant to applicable laws and regulations, you are required to maintain all records needed to fulfill orders for goods or services and provide post-sale support to your Shoppers. If the sale of an item requires a government registration of the sale, you are responsible for such registration.

4.7.3 Request for Documentation and Right to Inspect Records

BitPay or its auditors, an appropriate regulator, or other relevant competent authority may request to obtain and inspect certain of your business records with reasonable advance notice or immediately if required by law, a regulator, or other relevant authority. If you refuse such a request, we reserve the right to suspend or terminate your Account.

4.7.4 Information Sharing

You hereby authorize us to share information about you, your Account and Account activity with law enforcement, regulators and government agencies. We hereby also authorize you to share information about us and our Acceptance Services to you with law enforcement, regulators and government agencies.

4.8 Account Suspension and Closure

4.8.1 Your Right to Close Your Account

You may close your Account anytime. You will still be obligated to us for any fees incurred, if applicable, before the closure, and we will remit to you funds not yet paid to you and associated with pre-closure sales. If your Account balance is below our documented minimum transfer amount, you may be responsible for any applicable transaction fees that may be incurred in the funds transfer. Support for closing your account is available here: support.bitpay.com/hc/en-us/articles/204598335-How-to-close-your-merchant-account.

4.8.2 Our Right to Decline, Suspend, or Close Your Account

We reserve the right to decline to provide our Acceptance Services to you or immediately suspend or close your Account, without notice, if we learn or reasonably suspect, in our sole discretion, that you will use or have used your Account to engage in unlawful or improper activity in violation of applicable laws or regulations, these Terms, and/or our other applicable terms of use, including but not limited to a violation of Section 4.4, Prohibited Use and Business, or Section 4.5, Restricted Business. We reserve the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, sanctions programs, legal process or governmental request.

Additionally, if your Account does not have a paid transaction for more than twelve consecutive months, we reserve the right to suspend the Account and automatically disable processing capabilities. You will receive information about the process to reactivate the Account.

BitPay also reserves the right to terminate accounts which receive excessive Shopper complaints (see Section 12.1, Shopper Complaints).

4.8.3 Effect of Account Closure

If your Account is closed for any reason, you agree: (a) to continue to be bound by surviving portions of these Terms, (b) to immediately stop using the Acceptance Services, (c) that the license provided under these Terms shall end, (d) to remove from your website, apps and marketing materials and will discontinue using any BitPay service marks, logos or other branding, (e) that we will retain certain information and Account data as required under applicable laws and regulations, and (f) that we shall not be liable to you or any third party for termination of access to the Acceptance Services, closure of an Account, or retention of information or Account data.

5. Your Use of Third-Party Services

In using the BitPay website or the Acceptance Services, you may separately be offered additional services, products or promotions by third parties. If you decide to use any of these third-party services, you do so at your own risk and are solely responsible for reviewing, understanding and complying with the associated terms and conditions. We expressly disclaim any liability for third-party services and are not responsible for the performance of third-party services or servicers.

6. Security and Wallet Security

6.1 Security

We have implemented security measures designed to protect information from accidental loss and from unauthorized access, use, alteration or disclosure. Our security measures include risk assessments and controls for the following: application and system access, system and application development and maintenance, acceptable use, data classification, incident response, disaster recovery and business continuity, and security training. We cannot guarantee that unauthorized persons will never gain access to your information, and you acknowledge that you provide your information at your own risk, except as otherwise provided by applicable law. If we reasonably suspect or we become aware of a breach of our security measures that may have impacted you, your Account or your information, we will provide you with notice within 72 hours of gaining such suspicion or becoming aware of such breach. Such notice will be provided to your email address included in your Merchant profile.

6.2 Digital Wallet Security

Shoppers sending cryptocurrency payments and Merchants receiving settlements in cryptocurrency need to have a digital wallet. A digital wallet is a piece of software enabling a user to store encrypted private keys, used to sign transactions to access funds. A custodial digital wallet constitutes an account where third parties serve as financial intermediaries or custodians of a user’s cryptocurrencies. A custodial wallet provider stores the user’s private keys and thus has control over the user’s funds. A non-custodial digital wallet does not constitute an account where third parties serve as financial intermediaries or custodians of a user’s cryptocurrencies. A non-custodial wallet provider administers only the technical platform to store a user’s private keys, but has no control over or access to the private keys, and therefore no control over or access to the user’s funds.

Shoppers and Merchants may use any cryptocurrency wallet to store their funds, including the BitPay wallet. BitPay does not endorse or vouch for the quality or security of any third-party wallets. The wallet owner is solely responsible for safekeeping passwords and private keys used to access their wallet, as well as maintaining the security protocols and updates on devices used to download and use their wallet. If a Shopper or Merchant chooses to use the BitPay wallet, they do so subject to the BitPay Wallet Terms of Use.

BitPay is not responsible for, and cannot assist with recovery of, a loss of cryptocurrency funds incurred by a Merchant or Shopper if a wallet is compromised, for example due to loss of or unauthorized access to private keys, accidental sharing of a backup, a bug in the user’s device or the wallet software, or a malicious attack on the wallet software.

In the event your account balance gets settled to a wallet that becomes compromised or inaccessible, or in the event a Shopper’s wallet becomes compromised or inaccessible, it is up to you to decide how to handle any inquiries or potential claims. BitPay does not get involved in resolving such issues.

7. Privacy and Data Protection

Our Privacy Notice, including our California Consumer Privacy Act (“CCPA”) terms, is available at bitpay.com/about/privacy, and is incorporated by reference into these Terms.

8. Ownership and Use of Services and Intellectual Property

8.1 Our Ownership of the Services and BitPay Website

You agree and acknowledge that we own all right, title, and interest in the Acceptance Services, the associated software, technology tools and content, the BitPay service marks and logos, the BitPay website, the content displayed on the website, and other materials produced by BitPay (collectively, “BitPay IP”). You are only permitted to use the Acceptance Services and BitPay IP to offer the Acceptance Services to your Shoppers, according to these Terms. We grant you a personal, limited, revocable, non-exclusive and non-transferable license to use BitPay IP. You shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare BitPay IP or any portion thereof, or use BitPay IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. You shall not prepare any derivative work based on BitPay IP, nor shall you translate, reverse engineer, decompile or disassemble BitPay IP.

8.2 Use of BitPay Marks

While you have an active Account with BitPay, you may use those BitPay Marks that are made available to you by us through our Brand Guidelines and strictly subject to your use being consistent with the Brand Guidelines. Any and all goodwill arising from your use of the BitPay Marks will inure to our sole and exclusive benefit. We reserve the right to update the BitPay Brand Guidelines from time to time, and you are responsible for maintaining compliance with the then current version, provided that you have up to sixty days following an update to make any necessary changes. We will make commercially reasonable efforts to provide notice of any changes to the Brand Guidelines. The Brand Guidelines are available via our website at brand.bitpay.com. Without waiving any rights that may be available to us, if we determine that you are using any BitPay Marks inconsistent with the Brand Guidelines or in a manner that we reasonably determine is objectionable, we will provide you with notice and you agree to promptly discontinue the objectionable use. Failure to discontinue objectionable uses or repeated violations of the Brand Guidelines will be deemed a breach of this Agreement.

9. Advertising and Marketing

With your prior written approval, we may publish your corporate name, URL, artwork, text, logo, case studies, and other publicly available information about your business ("Content") in BitPay's promotional materials, marketing channels and business directory. A third party may use BitPay's publicly available Content and tailor the data to create entries for directories or other channels, and the data listed on third-party directories or channels will be subject to separate third-party terms of use. We may also request a testimonial or quote in the form of a blog post, promotional material, press release, or interview, and/or a reference. You have no obligation to provide Content, a testimonial, quote or reference. Upon mutual agreement, you and BitPay may engage in a separate marketing campaign.

You represent and warrant to us that you have the right to provide the Content to us, and that the use, copying, modification and publication of the Content by us: (a) will not infringe, violate or misappropriate any third-party copyright, patent, trade secret or other proprietary rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or otherwise violate any law.

10. Invoices

10.1 Invoice Generation and Competitive Exchange Rate Guarantee for Your Shopper

In order to accept a cryptocurrency payment, you need to create a payment request (“Invoice”) using the Acceptance Services, based on the amount you want to collect in your settlement currency, such as U.S. Dollars or Euros, or in any of the supported cryptocurrencies. BitPay's hosted invoice user interface must be displayed to the Shopper during checkout.

When BitPay processes payments, we use BitPay’s Best Bid (“BBB”) rate. We guarantee the exchange rate for the Shopper as long as the Shopper pays within the proper time window after the Invoice is created. Invoice timeout information is clearly displayed on each BitPay Invoice. For more information about how BitPay calculates exchange rates and factors in market depth, please refer to bitpay.com/exchange-rates.

While we guarantee the exchange rate for the Shopper as long as the Shopper pays within such time window, you agree that you assume the volatility risk of your settlement currency. For example, if you ask us to collect U.S. $150.00 and the Shopper sends the cryptocurrency equivalent within the time window, we guarantee you will receive exactly U.S. $150.00, minus our fee, but we do not guarantee the future value of the U.S. Dollar (or any other fiat currency) relative to any benchmark. Similarly, if you elect to receive some or all of your settlement in cryptocurrency, we do not guarantee the future value of that cryptocurrency relative to any benchmark.

10.2 Invoice Completion

An Invoice is considered “complete” by us if it has been fully paid by the Shopper, the corresponding transaction has reached our required number of block confirmations, and the payment has been credited to your Account ledger.

The number of confirmations required for a transaction depends on several factors, including the blockchain being used and our internal analysis of risk. We employ risk mitigation techniques to detect fraudulent payments, such as payments that are at risk of never receiving the required number of block confirmations. However, these measures do not completely eliminate the risk associated with unconfirmed payments.

A confirmed Invoice means that payment has been made and the required block confirmations have occurred, such that the transaction has passed our risk validation measures, but it still needs to be credited to your Account ledger. For more information about how block confirmations and Invoice completion works, see our FAQs here: support.bitpay.com/hc/en-us/articles/115004832203-How-do-bitcoin-block-confirmations-work-

You have the option to inform your Shopper that you have accepted the Invoice as paid before BitPay deems the Invoice completed, e.g. an Invoice payment that is not confirmed. BitPay is not liable for settling Invoices which are not considered fully paid and complete. In other words, if you accept a payment before it is credited by us to your Account ledger, we are not required to settle to you if we determine that the payment was fraudulent or otherwise invalid. Your Dashboard will display the current status for each payment (i.e., “paid”, “confirmed”, “complete”, “overpaid”, “underpaid”, “refunded”, or “invalid”). Payments that may be fraudulent will be identified in the Dashboard as invalid, which reflects that they have failed to achieve any block confirmations in the applicable blockchain. The failure to achieve block confirmations could also occur for reasons other than fraud (e.g. the payment was sent with insufficient miner fees).

10.3 BitPay Supported Cryptocurrencies

BitPay may add new cryptocurrencies to the Services. Additional cryptocurrencies will be added to the Services on an opt-out basis, such that they will be enabled by default unless you instruct BitPay to disable them. In addition, there may be circumstances that cause BitPay to decide to remove a particular cryptocurrency as a payment option.

10.4 Payment Exceptions

In certain situations when an Invoice is underpaid or overpaid, it will result in a “payment exception”. Shoppers will automatically receive a notification via email and/or SMS messaging from BitPay in order to claim the underpayment or overpayment, as described below. BitPay incurs miner fees to refund a payment. If a Shopper requests a refund for a payment exception, BitPay will deduct the miner fees from the refunded amount (see Section 14, Fees, for details).

10.4.1 Underpayments

Underpayments occur when a Shopper sends insufficient funds to fully pay an Invoice. Underpayments cannot fulfill an Invoice in full or part, and the underpayment is not credited to your Account. BitPay will notify the Shopper of the underpayment by email and/or SMS message and such notification will enable the Shopper to request a refund for the partial payment. The Shopper may also request a refund of the underpayment directly from the Invoice. To complete the transaction, the Shopper will need to generate a new Invoice by restarting the checkout process. The new Invoice will provide the Shopper with a new payment amount based on the then-current exchange rate and a new time window in which to complete the payment.

10.4.2 Overpayments

Overpayments occur when a Shopper sends funds in excess of the amount needed to fulfill the Invoice. In such cases, the Invoice passes through the state of being paid in full and is marked as an overpayment. Once the Invoice status is set to "complete", the funds needed to fully pay the Invoice are applied to your Account. However, the excess funds are not applied. BitPay will send a notification by email and/or SMS message to the Shopper enabling the Shopper to request a refund for the excess funds. The Shopper also has the ability to request a refund of the excess funds directly from the Invoice.

10.4.3 Orphan Payments

“Orphan payments” occur when a transaction is received outside the time window referenced in Section 10.1, Invoice Generation and Competitive Exchange Rate Guarantee. Any payments sent to the expired Invoice will show up in BitPay’s system as an orphan payment. Orphan payments also occur when a user sends cryptocurrency to one of our wallet addresses without a connection to an Invoice. BitPay cannot automatically associate orphan payments with an Invoice, merchant, Shopper email or SMS capable phone number. For more information or to resolve orphaned payments, either you or the Shopper will need to reach out to our support team (https://support.bitpay.com) with required information. Orphan payments are failed payments, and cannot be applied to an Invoice. If an orphan payment occurs, the Shopper will need to generate a new Invoice and restart the checkout process.

10.4.4 Unsupported Payments

Unless explicitly mentioned on our website or in this Agreement, we do not support or process payments for unsupported coins, tokens, or blockchain forks, collectively known as “Unsupported Payments” ("UP"). Shoppers should not pay a BitPay Invoice with UP or send UP to a BitPay address. If a Shopper transmits UP, the Shopper may lose any perceived value in the UP. Additionally, BitPay assumes no responsibility whatsoever with respect to UP and Shoppers will not be able to recover UP from BitPay. For an overview of currently supported cryptocurrencies, please refer to bitpay.com/exchange-rates and support.bitpay.com/hc/en-us/articles/203411543-What-currencies-can-I-use-to-pay-a-BitPay-invoice-.

10.4.5 Unclaimed Property

If a payment exception occurs, BitPay will try to locate you or the Shopper using the information shown in our records, but if BitPay is unable to contact you or the Shopper and/or has no record of you or the Shopper's use of the Acceptance Services for several years, applicable law may require BitPay to report these funds as unclaimed property to the applicable jurisdiction. BitPay reserves the right to deduct a dormancy fee or other administrative charges from such unclaimed funds, as permitted by applicable law.

10.5 Delayed Settlement

If we need to conduct an investigation or resolve any pending dispute related to your Account, or if required by law, court order, or at the request of law enforcement, we may delay settlement or restrict access to settlement funds. In the case of a delayed settlement, we will strive to promptly inform you, unless prohibited by court order or law enforcement. We will not be liable to you for any damages or harm caused as a result of such delayed settlement or restricted access. Unless required to delay settlement by law, we are committed to not delay or restrict settlement unnecessarily, and if partial delay or restriction is possible, we will only partially delay or restrict. Once the reasons for delayed settlement or restricted access to settlement funds can be reasonably proven to have been resolved, BitPay will pay the full amount of such funds to you without undue delay.

10.6 Account Information

You will have access to Account information detailing your ledger, transaction and settlement history through your Dashboard or via BitPay’s API. Should you identify an error, you must notify us within thirty (30) calendar days of the ledger entry posting.

11. Refunds

11.1 General Procedures

BitPay can facilitate cryptocurrency refunds to Shoppers on your behalf. You can decide to issue a partial refund or refund the full amount of the initial purchase. You can also decide whether to issue the refund based upon the value in which the relevant goods and/or services were priced (pricing currency) or the amount of the applicable cryptocurrency used to pay the Invoice (payment currency). Refunds will be remitted in the same cryptocurrency used to pay the Invoice. If you do not have enough funds in your Account to cover pending refund requests, we may require you to make a bank deposit to an account specified by us. Any required currency conversion during the refund process will be calculated at a spot rate determined by us, following the guidelines found here: bitpay.com/exchange-rates.

11.2 Disclosure of Merchant Refund Policy

BitPay is not responsible for merchant refund policies, or for verifying that such policies conform to applicable law. We suggest merchants provide a clear refund policy to their customers (including, if applicable, “no refunds are allowed as all sales are final”). For certain industries, a refund policy may not be applicable (e.g., where a service is provided). For refunds in amounts based upon the fiat pricing currency (i.e. the fiat price for the applicable goods/services), BitPay will convert the value of the currency in which the item was priced to the applicable cryptocurrency using the exchange rate at the time the refund is sent to the Shopper.

11.3 Refund of Payment Exceptions

If a payment exception is refunded within 30 days after the Invoice creation date, the exact amount of cryptocurrency originally received will be returned to the Shopper, less the applicable miner fee.

If a payment exception is not refunded by the 30th day after the Invoice creation date, BitPay will establish a maximum U.S. Dollar or Euro (depending on whether Merchant’s contract is with BitPay, Inc. or BitPay B.V.) value for the refund based upon the exchange rate on such 30th day. Thus, when the refund is ultimately sent, the amount of the refund will be the lesser of the amount of cryptocurrency originally sent to BitPay, or the cryptocurrency equivalent of the maximum U.S. Dollar/Euro value as determined from the exchange rate at the time the refund is sent. The applicable miner fee required to send the refund will be deducted from the amount of the refund sent to the Shopper.

Example with U.S. Dollars for BTC (same applies to other supported cryptocurrencies) if BTC price is lower after the 30th day:

Example with U.S. Dollars for BTC (same applies to other supported cryptocurrencies) if BTC price is higher after the 30th day:

11.3.1 Refund of XRP Payment Exceptions: Requirement of InvoiceID or Tag

Because all Invoices paid using the XRP cryptocurrency share the same address, BitPay requires all Shoppers to include the InvoiceID or Destination tag when sending the XRP payment from their wallets. If an XRP payment is sent to BitPay without either the InvoiceID tag or the tag information and results in a payment exception, there is no guarantee that we can determine who it came from and therefore we will not be able to provide a refund. If XRP payments are supported in your region, we recommend that you include this provision in your own terms of use.

12. Complaints

12.1 Shopper Complaints

If we receive a complaint from a Shopper and it relates to you or the purchased goods/services, we will send it to you for resolution. We reserve the right to terminate Merchant accounts that receive excessive complaints (see Section 4.8.2, Our Right to Decline, Suspend, or Close Your Account).

12.2 Merchant Complaints

Merchants that wish to register complaints regarding our Acceptance Services should contact us via:

For BitPay, Inc. merchants:

• Website: https://support.bitpay.com
• Phone: 1-404-907-2055
• Mail: 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499

For BitPay B.V. merchants:

• Website: https://support.bitpay.com
• Mail: Stadsplateau 7 WTC office 7, 3521 AZ, Utrecht, Netherlands

12.3 SPECIAL NOTICE FOR NEW YORK RESIDENTS

Additionally, the New York State Department of Financial Services will also accept complaints from New York Residents (a defined term in the New York Virtual Currency License) regarding BitPay:

• Phone: 1-800-342-3736
• Mail: 1 State Street, New York, New York 10004-1511
• Website: www.dfs.ny.gov/complaint

13. Settlement

13.1 Methods of Settlement

BitPay will clear payments from your Shoppers to you over the cryptocurrency peer-to-peer payment network and credit your Account ledger, according to your settlement preferences that you established in your Dashboard. The debits and credits to your Account ledger are funds temporarily held by BitPay until settlement to your bank account and/or wallet can take place. You can receive settlement in a local currency, in any of the supported cryptocurrencies, or in a mixture of both, and we have no right to impose any cryptocurrency over local currency, as your choice in this respect supersedes any of our preferences.

An Account ledger will be created for each currency selected for settlement pursuant to your settlement preferences. If you change your settlement preferences, those changes will be effective for Account ledger balances that are received after the date of the change. Any Account ledger balances dating from before the preference change will settle pursuant to your pre-change settlement preferences.

13.2 Your Bank Account

You must provide us with written notice at least one (1) business day prior to closing your bank account. If you wish to continue to receive direct deposits, you must provide us with information for a substitute bank account. You are solely liable for all fees and costs associated with your bank account and for all overdrafts. You are also liable to us for any fees that we may incur based on your provision of inaccurate information or instructions. You authorize us to initiate electronic credits to your bank account at any time, as necessary to process your transactions. We will not be liable for any delays in receipt of funds or errors in bank account entries caused by third parties, nor will we be liable or responsible for any errors in the account or address information that you have provided to us.

13.3 Settlements in Local Currencies

Direct deposit to a designated bank account in fiat currency is available to Merchants located in certain countries. Please refer to bitpay.com/docs/settlement for a list of those countries. If you wish to receive direct deposits, you must provide valid bank account information and keep such information current. Each business day, we will send a direct deposit to your bank account to clear out your accumulated Account ledger balance, provided that (a) the settlement minimums are met, and (b) funds will be deposited in your bank account within two business days following the settlement order. We reserve the right to charge you applicable wire fees, except when settling in U.S. Dollars to a bank located in the United States or when settling in Euros to a bank within the SEPA zone.

Settlements will be initiated from a bank account held in the name of BitPay, Inc. or Stichting Client Funds BMSE, which is a Dutch foundation established by us to segregate client funds from operational funds.

13.4 Settlements in Supported Cryptocurrencies; Disclosure of Material Risks

If your settlement preference includes cryptocurrency settlement, any supported cryptocurrency accepted by BitPay on your behalf must be settled to a cryptocurrency wallet that you provide. Payments in any of the supported cryptocurrencies will be sent to your designated wallet address, generally by the end of the day following the relevant transaction (as determined in U.S. Eastern Standard or Daylight Time, as applicable) and provided that the settlement minimum is met. We are not liable for any losses incurred as a result of improperly reported or designated wallet addresses that you provide.

You assume the volatility risk of the cryptocurrencies in which settlement occurs. If any of the supported cryptocurrencies are the chosen settlement medium, you assume the volatility risk of the cryptocurrency value.

Absent a written agreement to the contrary, BitPay’s Acceptance Services do not include cryptocurrency custody. If you choose to be settled in cryptocurrency, and if we cannot complete such settlement with you, BitPay will freeze the value of any Account ledger balance at the U.S. Dollar or Euro (depending on whether your contract is with BitPay, Inc. or BitPay B.V.) conversion rate at the time the settlement otherwise would have occurred. For example, if a Shopper makes a purchase from you such that you are to be settled 0.1 BTC, but we cannot complete the settlement to a wallet address that you provided, then when the settlement to your wallet would otherwise have occurred, we will freeze the value of the settlement in U.S. Dollars/Euro at the applicable U.S. Dollar/Euro conversion rate. You may subsequently be settled in cryptocurrency or fiat, but that settlement amount will be based on the frozen U.S. Dollar/Euro value, regardless of currency value fluctuations in the intervening period. In this example, and using U.S. Dollars, if at the time the settlement would otherwise have occurred to your wallet, the value of 0.1 BTC was U.S.$5,000, then that will be the value frozen for this transaction on your Account ledger. If you ultimately decide to receive fiat settlement of this Account ledger balance, such settlement will be for U.S.$5,000, regardless of the prevailing BTC to U.S. Dollar exchange rate at the time of settlement. Similarly, if you maintain your bitcoin settlement preference and you provide a valid bitcoin wallet address, we will remit settlement at the then prevailing exchange rate based on the U.S.$5,000 value (e.g., if the exchange rate when we complete the settlement--after receiving a valid wallet address is 1 BTC:U.S.$80,000, you will receive 0.0625 BTC, or if the exchange rate is 1 BTC:U.S.$25,000, you will receive 0.2 BTC).

BitPay does not own or control the underlying software protocols that govern the operation of cryptocurrencies supported on our platform. In general, the underlying protocols are open source and anyone can use, copy, modify, and distribute them.

13.5 DISCLOSURE: Material Risks of Virtual Currency Disclosure Under 23 NYCCR 200.19

While there are material risks from accepting various forms of payment (such as cash, other fiat currencies, network card payments, other proprietary electronic payments and alternative virtual currency payments), BitPay discloses the following:

1. Virtual Currency (like Bitcoin) is not legal tender, is not backed by the government, and accounts and value balances are not subject to Federal Deposit Insurance Corporation or Securities Investor Protection Corporation protections;
2. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of Virtual Currency;
3. Transactions in Virtual Currency may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable;
4. Some Virtual Currency transactions shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that the Shopper initiates the transaction;
5. The value of Virtual Currency may be derived from the continued willingness of market participants to exchange Fiat Currency for Virtual Currency, which may result in the potential for permanent and total loss of value of a particular Virtual Currency should the market for that Virtual Currency disappear;
6. There is no assurance that a Person who accepts a Virtual Currency as payment today will continue to do so in the future;
7. The volatility and unpredictability of the price of Virtual Currency relative to Fiat Currency may result in significant loss over a short period of time;
8. The nature of Virtual Currency may lead to an increased risk of fraud or cyber attack;
9. The nature of Virtual Currency means that any technological difficulties experienced by BitPay may prevent the access or use of a Shopper’s Virtual Currency; and
10. Any bond or trust account maintained by BitPay for the benefit of its Merchants may not be sufficient to cover all losses incurred by customers.

13.6 Refund Reserve

Upon your direction, we can set a refund reserve on your Account. The purpose of the refund reserve is to make sure there is always a buffer of funds available on your Account to cover pending refunds (e.g., when goods/services are not delivered).

If no refund reserve is set, pending refunds will be deducted from the balance on your Account, which is settled daily by us. If a refund reserve is set, we will only settle the pending balance sitting on top of the refund reserve amount. If there is no balance to be settled, we will use the funds available in your refund reserve to cover pending refund requests from your Account. If the refund reserve is being used, any incoming deposits to your Account would first refill the reserve up to the amount defined (incoming deposits are Invoices paid by Shoppers and/or bank deposits from you to an account specified by BitPay). Refund reserve values are established and maintained in fiat currency only.

13.7 Settlement Minimum

BitPay settles the accumulated balance on your Account ledger if it is above the minimum amount defined for the settlement currency selected on the Dashboard. Please refer to bitpay.com/docs/settlement for information related to minimum settlement amounts and deposit frequency.

For cryptocurrency Account ledger balances below the settlement minimum, BitPay will freeze the transaction values in your Account at the U.S. Dollar or Euro (depending on whether your contract is with BitPay, Inc. or BitPay B.V.) equivalent value at the conversion rate at the time the settlement would otherwise have occurred (i.e., at the time the balance would have been settled but for the settlement minimum not being met). Once the cumulative Account ledger balance for a given cryptocurrency reaches the settlement minimum, as measured by the conversion rate at the applicable settlement time, BitPay will remit the cryptocurrency settlement to your applicable wallet address.

14. Fees

14.1 Definitions

Miner Fees
Cryptocurrency transactions typically incur miner fees. These fees are automatically created by cryptocurrency wallets in order to broadcast a transaction on a given blockchain network. These fees are paid to cryptocurrency miners (and their operators) that process transactions and maintain the respective network. Miner fees are variable depending on network conditions and the desired confirmation speed for the transaction. If a cryptocurrency network gets congested, the minimum required miner fee will be higher to ensure the transaction can be reliably processed on the network. Using a lower-than-average miner fee can put a transaction at risk of slow confirmation or no confirmation at all.

BitPay Network Costs
BitPay network costs are additional fees incurred by BitPay in aggregating received payments and settling such payments to merchants. Network costs are based upon the miner fees that BitPay incurs in providing its Services. Therefore, if miner fees rise, network costs also rise.

14.2 BitPay Processing Fees

We charge you a processing fee for each Invoice successfully processed through your Account. These fees are deducted from your Account ledger balances (net settlements). BitPay’s processing fee is listed for each Invoice in your Dashboard and in the API output. We reserve the right to change our processing fee. We will provide not less than thirty (30) days’ advance notice of such a change, and your continued use of the Acceptance Services following the period of advance notice of the fee change constitutes your acceptance of such change. Current pricing information is provided on the BitPay website at bitpay.com/pricing.

14.3 Refund Fees on Successful Payments

14.3.1 Refund Fees on Successful Payments for BitPay, Inc. Merchants
Unless you instruct us otherwise, if you issue a full or partial refund on a successful payment, we will deduct the miner fee used to send such a refund from the amount of cryptocurrency that is refunded to the Shopper (i.e. the Shopper will bear this miner fee). If you choose to bear the miner fee for such a refund, this miner fee deduction will appear as a separate entry in your Account ledger after the refund is executed. We recommend that you disclose to Shoppers in your refund policy if they will bear miner fees on refunds of successful payments.

14.3.2 Refund Fees on Successful Payments for BitPay B.V. Merchants
If you issue a full or partial refund on a successful payment, the miner fee used to send this refund will be deducted from and appear as a separate entry in your Account ledger after the refund is executed.

14.4 Shopper Fees

Miner Fees
The Shopper pays a miner fee in order to send funds from his/her cryptocurrency wallet to pay a BitPay Invoice.

BitPay Network Costs
If the estimated amount of the network cost is more than U.S.$0.01, BitPay lists the network cost on the Invoice and charges it as a separate fee to the Shopper.

Refund Fees on Payment Exceptions
If a Shopper’s transaction ends up as a Payment Exception (see Section 10.4, Payment Exceptions), BitPay deducts the corresponding miner fee used to return the payment to the Shopper from the total refund amount.

14.5 Fee Summary

15. Indemnification

You agree to indemnify BitPay, its affiliated and related entities, and any of its officers, directors, employees and agents from and against any claims, costs, losses, liabilities, damages, expenses and judgments of any and every kind (including, without limitation, costs, expenses, and reasonable attorneys’ fees) arising out of, relating to, or incurred in connection with any claim, complaint, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises or relates to any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms.

16. No Warranties

EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, WE PROVIDE THE ACCEPTANCE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOUR USE OF THE ACCEPTANCE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE ACCEPTANCE SERVICES WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT). WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE ACCEPTANCE SERVICES (AND OUR WEBSITE): WILL OPERATE ERROR-FREE OR THAT DEFECTS OR ERRORS WILL BE CORRECTED; WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE, UNINTERRUPTED OR SECURE AT ANY PARTICULAR TIME OR LOCATION; ARE FREE FROM VIRUSES OR OTHER HARMFUL CONTENT. WE DO NOT ENDORSE, WARRANT, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED OR ADVERTISED BY A THIRD PARTY THROUGH THE ACCEPTANCE SERVICES OR THROUGH OUR WEBSITE, AND WE WILL NOT BE A PARTY TO NOR MONITOR ANY INTERACTIONS BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

17. Limitation of Liability

EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST DATA OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE ACCEPTANCE SERVICES, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGE MAY HAVE BEEN INCURRED. FOR CUSTOMERS CONTRACTING WITH BITPAY B.V., WHILE THIS LIMITATION OF LIABILITY DISCLAIMS LOST PROFITS AND OTHER INDIRECT DAMAGES, BITPAY B.V. DOES NOT OTHERWISE EXCLUDE ITS LIABILITY FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, VIRUS TRANSMISSION OR OTHER UNAUTHORIZED ACCESS OR USE OF THE ACCEPTANCE SERVICES, YOUR ACCOUNT, OR ANY INFORMATION CONTAINED THEREIN.

IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THE ACCEPTANCE SERVICES OR THESE TERMS EXCEED THE FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE ACCEPTANCE SERVICES DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

18. Miscellaneous

18.1 Taxes

You are solely responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with the use of the Acceptance Services. You also are solely responsible for collecting, withholding, reporting, and remitting correct taxes to the appropriate tax authorities. We are not obligated to nor will we determine whether taxes apply, nor calculate, collect, report, or remit any taxes to any tax authorities arising from any transaction.

If in a given calendar year using the Acceptance Services you receive (i) more than U.S.$20,000 in gross amount of payments and (ii) more than 200 payments, BitPay will report annually to the U.S. Internal Revenue Service, as required by law, your name, address, employer identification number, the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.

18.2 Assignment

You may not transfer or assign these Terms or any rights granted by these Terms. You agree and acknowledge that we may assign or transfer these Terms.

18.3 Severability

Should any provision of the Terms be determined to be invalid or unenforceable under any law, regulation, or court order, such determination will not affect the validity or enforceability of any other provision of the Terms.

18.4 Waivers

A party’s failure to assert any right or provision in the Terms shall not constitute a waiver of such right or provision, and no waiver of any term shall be deemed a further or continuing waiver of such or other term.

18.5 Entire Agreement

The Terms, including other of BitPay’s terms referenced herein, represents the entire understanding between you and us. Headings are included for convenience only and shall not be considered in interpreting the Terms.

18.6 Notices

Any notice or other communication given to a party in connection with the Terms shall be in writing in English. Notices may be sent by a recognized overnight air courier and/or by email. The parties agree that all terms, conditions, agreements, notices, disclosures or other communications that we provide to each other electronically will be considered to be “in writing”. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action. BitPay may send notices to you at the email and physical address that you submit in creating your Account. You may update these addresses through your Dashboard. Notices to BitPay may be sent to BitPay, Inc., 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499, USA, Attn: General Counsel, legal@bitpay.com; notices to BitPay B.V. may be sent to BitPay B.V., Stadsplateau 7 WTC office 7, 3521 AZ, Utrecht, The Netherlands, Attn: Compliance Department, legal@bitpay.com.

18.7 Governing Law; Arbitration; Waiver of Class Action

18.7.1 Governing Law
To the extent that your relationship is with BitPay, Inc., these Terms are governed by the laws of the State of Georgia, USA, unless preempted by U.S. federal law, without regard to conflict of law rules. To the extent your relationship is with BitPay B.V., these Terms are governed by the laws of the Netherlands, the European Union, without regard to their conflict of law rules.

18.7.2 Dispute Resolution for Contracts with BitPay, Inc.
If your contractual relationship is with BitPay, Inc. and a disagreement or dispute arises that in any way involves the Acceptance Services or the Terms and cannot be resolved between the parties with reasonable effort, the disagreement or dispute shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (AAA), to take place in Atlanta, Georgia, U.S.A. or a location agreed upon by both parties, and will be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA. The arbitration shall be conducted in the English language.
You agree that, unless prohibited by law, there shall be no authority for any claims to be arbitrated on a class or representative basis, and arbitration will only decide a dispute between you and us. Arbitration proceedings must be initiated within one (1) year after the disagreement or dispute arises. If any part of this arbitration clause is later deemed invalid as a matter of law, then the remaining portions of this section shall remain in effect, except that in no case shall there be a class arbitration.

18.7.3 Dispute Resolution for Contracts with BitPay B.V.
Under Dutch law you have a statutory legal responsibility to verify correct performance by us and to complain about any defects in the performance of our obligations. You hereby agree to verify correct performance by us and to submit to us in writing any complaints alleging defects in the performance of our obligations within six (6) months after you have received our Services. Defects that are not reported to us within this six (6) month complaint period will be qualified as lapsed and can no longer be invoked against us.
Any claim against us, including but not limited to claims for damages, claims based on undue payment or claims regarding the performance of our obligations to you, is subject to a limitation period of twelve (12) months.
If your contractual relationship is with BitPay B.V. and a disagreement or dispute arises that in any way involves the Acceptance Services or the Terms and cannot be resolved between the parties with reasonable effort, the disagreement or dispute shall be resolved exclusively by final and binding arbitration administered by the International Chamber of Commerce (ICC) in accordance with its Rules of Arbitration. The seat of such arbitration shall be Amsterdam, The Netherlands. The arbitration will be conducted before a single arbitrator in the English language. Proceedings shall occur virtually or, if in person, in Amsterdam, The Netherlands, or such other location as may be agreed upon by the parties. The parties shall evenly divide the costs of the arbitrator and the proceeding, but shall otherwise each be responsible for their own attorney, expert and other costs and expenses.
Any court proceedings in The Netherlands before, during or after the arbitration will - to the extent allowed by law - exclusively be dealt with by the Amsterdam District Court or the Amsterdam Court of Appeal, whichever has jurisdiction, following proceedings in English before the Chambers for International Commercial Matters (Netherlands Commercial Court, which consists of the NCC District Court, the NCC Court in Summary Proceedings and the NCC Court of Appeal). The NCC Rules of Procedure (see www.ncc.gov.nl) apply to these proceedings. This clause is not intended to exclude Supreme Court appeal.

18.8 Updates to Terms

We may make changes to these Terms from time to time, and if we do, we will notify you by revising the date at the top of the Terms. We will provide email or similar notification if material changes are made to these Terms. Unless otherwise noted, the amended Terms will be effective immediately, and your continued use of our Services will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.

18.9 Force Majeure

Neither party will be liable for delays in processing or other non-performance caused by such events as fires, telecommunications, utility, or power failures, equipment failures, labor strife, riots, war, non-performance of our vendors or suppliers, acts of God, pandemics, or other causes over which the respective party has no reasonable control; provided that the party has procedures reasonably suited to avoid the effects of such acts.

18.10 Confidentiality

A party’s “Confidential Information” is defined as any information of the disclosing party, which: (a) if disclosed in a tangible form is marked as “Confidential” or “Proprietary” or if not so marked, should be reasonably understood by the receiving party from the context of disclosure or from the information itself, to be confidential; (b) if disclosed orally or visually is declared to be confidential or, if not so declared, should be reasonably understood by the receiving party from the context of disclosure or from the information itself to be confidential; or (c) is designated as Confidential Information in these Terms. Confidential Information shall include without limitation, information accessed via the BitPay API, technical specifications and processes of each party, and all Merchant data. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than solely as required and necessary to perform its obligations under these Terms. Such restrictions shall not apply to Confidential Information that: (a) is known by the recipient prior to the date of disclosure by the disclosing party; (b) becomes publicly known through no act or fault of the recipient; (c) is received by recipient from a third party without a restriction on disclosure or use; or (d) is independently developed by recipient without reference to or knowledge of the Confidential Information.

Notwithstanding the foregoing, a party may share Confidential Information with an affiliate in the event that the other party requests services from such affiliate and such affiliate shall be bound by this Section. In the event Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, the party subject to such requirement shall promptly notify the disclosing party upon learning of the existence or likely existence of such requirement and shall use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protective order covering any disclosed Confidential Information. The parties’ respective obligations to maintain the confidentiality of information disclosed hereunder shall survive the expiration or termination of these Terms or until such time as such information becomes public information through no fault of the receiving party.

18.11 Survival

The provisions of Sections 3 (Representations and Warranties), 4.8.3 (Effect of Account Closure), 6 (Security and Wallet Security), 7 (Privacy), 8 (Ownership and Use of Services and Intellectual Property), 9 (Advertising and Marketing), 10.5 (Delayed Settlement), 15 (Indemnification), 16 (No Warranties), 17 (Limitation of Liability), and 18 (Miscellaneous) shall survive the termination of these Terms.

18.12 No Joint Venture or Agency

Nothing in this Agreement is intended to, or shall be deemed to, establish any joint venture between the Parties, and other than the limited agency established in Section 1, nothing is intended to establish either Party as an agent of the other.

18.13 Business Days Defined

For the purposes of these Terms, a business day shall be standard business hours on any day excluding Saturday or Sunday and as to BitPay, Inc., days generally accepted as federal holidays in the United States, and as to BitPay B.V., days generally accepted as holidays in The Netherlands.

Wallet Terms of Use

TERMS EFFECTIVE ON 1 JANUARY 2022

These Wallet Terms of Use (“Terms”) are a binding agreement between BitPay (“BitPay” or “We”) and the person, persons, or entity (“You” or “Your”) using the application (“Software”). By using the Software, You agree to these Terms, including the Choice of Law, Arbitration and Class Action Waiver provisions included in Section 7, below.

By using the Software, you are receiving a license from a BitPay entity based on the location of your residence. Unless you reside in one of the countries listed in the following sentence, the software is licensed to You by BitPay, Inc., a Delaware, USA corporation, having its principal offices at 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499, USA. The Software is licensed to You by BitPay B.V., if you reside in any of the following countries: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland or the United Kingdom. BitPay B.V. is a Dutch private company with limited liability, having its registered address at Stadsplateau 7 WTC office 7, 3521 AZ, Utrecht, The Netherlands and registered with the trade register of the Dutch Chamber of Commerce under number 58655891. For simplicity, we will use the term BitPay in these Terms to refer to the BitPay entity that licensed the Software to You.

1. Rights and Obligations

BitPay licenses the Software to You solely on these Terms and on the condition that You accept and comply with them. Please note that the Software is licensed, not sold, and You do not gain ownership rights to the Software itself by way of these Terms. By using the Software, You represent and warrant that: (i) You are of legal age and capacity to enter into a binding agreement; and (ii) if You are a corporation, governmental organization or other legal entity, You have the right, power and authority to enter into these Terms on behalf of the corporation, governmental organization or other legal entity and bind them to these Terms.

This Software functions as a free, open source, multi-signature digital wallet. The Software does not constitute an account where We or other third parties serve as financial intermediaries or custodians of Your cryptocurrency. BitPay has no access to, visibility into, or control over any cryptocurrency stored in Your wallet or transactions made with Your wallet, Your private keys, passphrases or any wallet backup files. Your wallet is stored locally on Your device(s), and not on any BitPay server or network.

While the Software is continuously improved by feedback from the open-source user and developer community, We cannot guarantee there will not be bugs in the Software. You acknowledge that Your use of this Software is at Your own discretion and risk. You agree to only use the Software in compliance with all applicable laws. You are solely responsible for safekeeping Your passwords, private key pairs, PINs, and any other codes You use to access the Software. In addition, You are solely responsible for maintaining the security protocols and updates on devices on which You have downloaded the Software.

IF YOU LOSE ACCESS TO YOUR WALLET OR YOUR ENCRYPTED PRIVATE KEYS AND YOU HAVE NOT SEPARATELY STORED A BACKUP OF YOUR WALLET AND CORRESPONDING PASSWORD, YOU ACKNOWLEDGE AND AGREE THAT ANY CRYPTOCURRENCY YOU HAVE ASSOCIATED WITH THAT WALLET WILL BECOME INACCESSIBLE. All transaction requests are irreversible. The authors of the Software, employees and affiliates of BitPay, copyright holders, and BitPay cannot retrieve Your private keys or passwords if You lose or forget them and cannot guarantee transaction confirmation as they do not have control over the applicable cryptocurrency networks.

To the extent that You use Your BitPay wallet to make purchases from merchants accepting payment using BitPay’s services, You are a Shopper, and agree to BitPay’s Shopper Terms of Use, which are incorporated herein by reference: bitpay.com/legal/shopper-terms-of-use.

2. Digital Gift Cards

BitPay is an authorized and independent reseller of digital gift cards (“GCs”). Through the Software, You may purchase GCs subject to the following terms and the terms and conditions or rules of the applicable GC merchant. Except as required by law, GCs cannot be transferred for value or redeemed for cash. GC trademarks and copyrights belong to the merchant owners or its affiliates. EXCEPT AS MAY BE PROVIDED FOR IN APPLICABLE MERCHANT TERMS AND CONDITIONS, ALL GC SALES ARE FINAL. NO REFUNDS WILL BE PROVIDED FOR ANY GC BY BITPAY. For complete rules and terms, please review the applicable merchant's GC terms and conditions.

3. Third Party Content, Buy and Exchange Crypto

We do not control, and We are not responsible for, any third party data, content, services, or products (“Third-Party Content”) that You access, download, receive or buy while using the Software or from sites that You navigate to using links in the Software. We are not a publisher of Third-Party Content accessed through the Software and are not responsible for such Third-Party Content, or its accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information. Third-Party Content is provided as a convenience to You and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that BitPay is not responsible for any aspect of the Third-Party Content. You are responsible for evaluating whether You want to access or use Third-Party Content. If You decide to use Third-Party Content, You do so at Your own risk and agree that You do so subject solely to the third party provider’s terms and conditions for such Third-Party Content. BitPay makes no representations or warranties of any kind related to such Third-Party Content, and disclaims any and all such representations and warranties, whether express or implied.

The “Buy Crypto”, “Swap Crypto” or similar functionality available in the BitPay wallet is Third-Party Content and is subject to the disclaimers made above. By choosing Buy Crypto, Swap Crypto, or other similar functionality from within the BitPay wallet, You will be taken to the app or website of one or more third-party providers of cryptocurrency exchange services. Any purchases or swaps of cryptocurrency that You make using this functionality are made solely between You and the third-party provider, and are subject solely to that provider’s terms and conditions. BitPay is not a party to any such cryptocurrency purchase or swap transaction, and BitPay bears no responsibility or liability in connection with any such purchase or swap transaction. BitPay is not an exchange and does not, itself, directly provide cryptocurrency purchase or exchange services.

4. Terms for Applications Accessed from the Apple App Store

If You are accessing the Services through an application from the Apple App Store (“Licensed Application”), You and BitPay agree to the following additional terms:

• You and BitPay acknowledge that these Terms are between You and BitPay only. As between Apple and BitPay, BitPay is solely responsible for the Licensed Application and the content thereof. You and BitPay agree to be bound by the Apple Media Terms and Conditions as of the Effective Date (which You acknowledge that You have had the opportunity to review), including, without limitation, the Usage Rules set forth therein. Any capitalized terms used herein and not otherwise defined in these Terms have the meaning provided in the Apple Media Terms and Conditions.
• The license contained in these Terms is a non-transferable license to use the Licensed Application on any Apple-branded Products that You own or control as permitted by the Usage Rules.
• To the extent set forth in these Terms or required by applicable law, BitPay, not Apple, is responsible for providing any maintenance and support services with respect to the Licensed Application. You acknowledge that Apple has no obligation to furnish any maintenance and support with respect to the Licensed Application.
• BitPay, not Apple, is solely responsible for any product warranties set forth in these Terms, express or implied, to the extent not effectively disclaimed. In the event of any failure of the Licensed Application to conform to any applicable warranty, if any, You may notify Apple, and Apple will refund the purchase price for the Licensed Application to You. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty (to the extent not effectively disclaimed herein) will be BitPay’s sole responsibility.
• You and BitPay acknowledge that, as between Apple and BitPay, BitPay, not Apple, is responsible for addressing any claims You or any third party have relating to the Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
• Apple shall in no way be responsible for any investigation, defense, settlement and discharge of any claim that Your possession and use of the Licensed Application infringes upon any third party’s intellectual property rights.
• By accessing and using the Licensed Application or Service, You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
• As pertains to the Licensed Application and Your use thereof, Apple is a third party beneficiary of these Terms, and upon Your acceptance of the Terms, Apple has the right to enforce these Terms against You as a third party beneficiary.
• If You need support or have any comments for us, You may contact BitPay at 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499, support@bitpay.com.

5. Disclaimer of Warranties

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OF THE SOFTWARE, EMPLOYEES AND AFFILIATES OF BITPAY, COPYRIGHT HOLDERS, OR BITPAY, INC. BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

IN NO EVENT WILL BITPAY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR USERS WHOSE SOFTWARE IS LICENSED BY BITPAY B.V., WHILE BITPAY DISCLAIMS LIABILITY FOR LOST PROFITS AND INDIRECT DAMAGES, BITPAY B.V. DOES NOT OTHERWISE EXCLUDE ITS LIABILITY FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

6. Intellectual Property

We retain all right, title, and interest in and to the Content and all of BitPay’s brands, logos, and trademarks, including, but not limited to, BitPay, Inc., BitPay B.V., BitPay, BitPay – Secure Bitcoin Wallet, BitPay Wallet, BitPay App, Copay, BitPay Card, BitPay Prepaid Card, BitPay ID and variations of the wording of the aforementioned brands, logos, and trademarks.

7. Choice of Law, Arbitration and Class Action Waiver

If your license is from BitPay, Inc., these Shopper Terms, and their application and interpretation, shall be governed exclusively by the laws of the State of Georgia, without regard to its conflict of law rules, and the United States. Further, the Federal Arbitration Act and federal arbitration law apply to these terms. If your license is from BitPay, BV, then these Shopper Terms, and their application and interpretation, shall be governed exclusively by the laws of The Netherlands, the European Union, and without regard to their conflict of laws rules. If you are acting as a consumer, and your contract is with BitPay B.V., this choice of law leaves unaffected mandatory statutory consumer protection regulations in your country of residence.

(a) Disputes From Users With Software Licensed by BitPay, Inc.

Claims brought by a Consumer: To the extent that Your claim meets the applicable jurisdictional requirements, You may choose to pursue Your claim in small claims court so long as the claim remains a small claim and is addressed on an individual basis. Except for small claims, any dispute arising in connection with these Terms, use of the Services or our relationship, regardless of type or nature, whether brought by You or BitPay, shall be resolved exclusively by binding arbitration, on an individual basis, pursuant to the American Arbitration Association’s rules of arbitration for consumer-related disputes (accessible here: www.adr.org/sites/default/files/Consumer%20Rules.pdf ). At Your request, arbitration may be conducted in person, by telephone or video conference, and may be decided on written briefs, without oral hearings. If the arbitration is held in person, the proceedings will be conducted in Your city or county of residence, or in a mutually agreeable location. The arbitrator may award any relief that a court of competent jurisdiction could award and the arbitral decision may be enforced in any court. An arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. To the extent permitted by law, the prevailing party in any action or proceeding to enforce these Terms, any arbitration pursuant to these Terms, or any small claims action shall be entitled to costs and attorneys' fees. If the arbitrator or arbitration administrator would impose filing fees or other administrative costs on You, We will reimburse You, upon request, to the extent such fees or costs would exceed those that You would otherwise have to pay if You were proceeding instead in a court. We will also pay additional fees or costs if required to do so by the arbitration administrator's rules or applicable law.

Claims brought by a Business: Any controversy or claim arising out of or relating to these Terms, the breach thereof, or the use of the wallet, regardless of the type of claim, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall occur in Atlanta, Georgia. The parties shall evenly divide the costs of the arbitrator and the proceeding, but shall otherwise each be responsible for their own attorney, expert and other costs and expenses.

All claims: Any arbitration shall be heard before a single arbitrator, and shall be conducted exclusively in the English language. Any disputes as to the interpretation, application or scope of this arbitration provision shall be determined solely by the arbitrator, and not by a court or judge.

CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). YOU AGREE THAT THERE MAY BE NO CLASS ARBITRATION. BY AGREEING TO THESE TERMS YOU WAIVE ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION, HAVE A TRIAL BEFORE A STATE OR FEDERAL COURT(EXCEPT AS TO SMALL CLAIMS) OR TO HAVE ANY TRIAL BY JURY.

If the foregoing Class Action Waiver becomes unenforceable, then this arbitration provision shall be struck in its entirety, and any claims shall be subject solely to the jurisdiction and venue of the state and federal courts located in Fulton County, Georgia. The parties consent to such jurisdiction and venue, and waive any defense or objection thereto, including any claim of inconvenient forum.

(b) Disputes From Users With Software Licensed by BitPay B.V.

Under Dutch law you have a statutory legal responsibility to verify correct performance by us and to complain about any defects in the performance of our obligations. You hereby agree to verify correct performance by us and to complain about any defects in the performance of our obligations to us in writing within six (6) months after you have downloaded the Software. Defects that are not reported to us within this complaints period of six (6) months will be qualified as lapsed and can no longer be invoked against us.

Any claim against us, including but not limited to claims for damages, claims based on undue payment or claims regarding the performance of our obligations to you, is subject to a limitation period of twelve (12) months.

Claims brought by a Consumer: Any controversy or claim arising out of or relating to these Terms, or the breach thereof, regardless of the type of claim, shall be settled by the competent court.

Claims brought by a Business: If your Software is licensed from BitPay B.V. and a disagreement or dispute arises that in any way involves the Software or the Terms and cannot be resolved between the parties with reasonable effort, the disagreement or dispute shall be resolved exclusively by final and binding arbitration administered by the International Chamber of Commerce (ICC) in accordance with its Rules of Arbitration. The seat of such arbitration shall be Amsterdam, The Netherlands. The arbitration will be conducted before a single arbitrator in the English language. Proceedings shall occur virtually or, if in person, in Amsterdam, The Netherlands, or such other location as may be agreed upon by the parties. The parties shall evenly divide the costs of the arbitrator and the proceeding, but shall otherwise each be responsible for their own attorney, expert and other costs and expenses.

Any court proceedings in The Netherlands before, during or after the arbitration will - to the extent allowed by law - exclusively be dealt with by the Amsterdam District Court or the Amsterdam Court of Appeal, whichever has jurisdiction, following proceedings in English before the Chambers for International Commercial Matters (Netherlands Commercial Court, which consists of the NCC District Court, the NCC Court in Summary Proceedings and the NCC Court of Appeal). The NCC Rules of Procedure (see www.ncc.gov.nl) apply to these proceedings. This clause is not intended to exclude Supreme Court appeal.

8. Severability

In the event any portion of these Terms is deemed invalid or void by a court or arbitrator, such declaration shall not invalidate the entirety of these Terms, but instead the invalid provision shall be severed from these Terms and all other portions of the Terms shall remain in full force and effect.

9. Binding Agreement

The terms and provisions of these Terms are binding upon Your heirs, successors, assigns, and other representatives. You assume any and all risks associated with the use of the Software. We reserve the right to modify these Terms from time to time. As to their subject matter, these Terms (including any other terms or notices incorporated herein by reference) comprise the entire agreement between you and BitPay. If you have any questions, complaints, or need customer support, you may contact BitPay via post at BitPay, Inc., 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499, USA, or BitPay B.V., Stadsplateau 7 WTC office 7, 3521 AZ, Utrecht, The Netherlands; via email at support@bitpay.com, or using our online support wizard at https://support.bitpay.com.

BitPay ID Terms of Use

TERMS EFFECTIVE ON 1 JANUARY 2022

These BitPay ID Terms of Use (“BitPay ID Terms”) govern your establishment of a BitPay ID, use of the BitPay ID dashboard (the “Dashboard”) and service (collectively the “Services”), which are owned or operated by BitPay (“BitPay”, “we”, “our” or “us”). For clarity, these BitPay ID Terms do not govern, but may be complementary to, BitPay merchant activity (payment acceptance and/or payouts), BitPay’s wallet or gift card services, the BitPay Prepaid Debit Card, use of BitPay’s services to make payments or to receive payouts, all of which are governed by separate terms. By creating a BitPay ID and using the Services, you accept and agree to be bound by these BitPay ID Terms. To the extent that you are registering for, or use your BitPay ID to make purchases from merchants accepting cryptocurrency payments using BitPay’s payment acceptance services, you are a “Shopper”, and agree to BitPay’s Shopper Terms of Use, which are incorporated herein by reference: bitpay.com/legal/shopper-terms-of-use

IF YOU DO NOT AGREE TO THESE BITPAY ID TERMS, INCLUDING ANY TERMS INCORPORATED BY REFERENCE, YOU MAY NOT USE THE SERVICES.

1. Overview of Services; Changes

1.1 Overview of Services

For security, fraud and anti-money laundering prevention, regulatory, legal and compliance reasons, BitPay is obligated to gather certain information on individuals, businesses and organizations making payments (“Shoppers”) and/or individuals, businesses and organizations receiving payments (“Recipients”) using BitPay’s services. We fulfill these obligations by requiring Shoppers and Recipients to provide certain information so that we can confirm the submitter’s identity, and verify that the submitter is not subject to sanctions or other legal restrictions. By completing these verifications using the Services, the Shopper and/or Recipient creates a “BitPay ID”, which is a virtual credential that we maintain in our systems and that enables the BitPay ID user to access certain other features upon logging into the Services. These features include, but are not limited to, a Dashboard unique to that BitPay ID user, which allows the user to access their transaction history, apply for a BitPay prepaid debit card (in markets where it is available and subject to a cardholder agreement), and the ability to access certain other BitPay products and services.

1.2 BitPay Contracting Party

By using the Services, you are establishing a contractual relationship with a BitPay entity, the identity of which depends upon the location of your residence. Unless you reside in one of the countries listed in the following sentence, your contractual relationship is with BitPay, Inc., a Delaware, USA corporation with offices at 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499, USA. Whereas, your contractual relationship is with BitPay B.V. if you reside in any of the following countries: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland or the United Kingdom. BitPay B.V. is a Dutch private company with limited liability, having its registered address at Stadsplateau 7 WTC office 7, 3521 AZ, Utrecht, The Netherlands and registered with the trade register of the Dutch Chamber of Commerce under number 58655891. For simplicity, any reference to a defined term for BitPay shall be interpreted to refer to the BitPay entity with which you have a contractual relationship.

1.3 BitPay’s Regulatory Compliance

BitPay, Inc. is subject to U.S. laws and regulations. This includes the Bank Secrecy Act, the economic and trade sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury, the USA PATRIOT Act, and other anti-money laundering (AML) and anti-terrorist financing (ATF) laws. BitPay, Inc. is also a registered Money Service Business with the Financial Crime Enforcement Network of the U.S. Department of the Treasury (FinCEN) and is a licensed money transmitter in the U.S. states where applicable law requires it to be licensed. As required by applicable laws and regulations, BitPay, Inc. maintains a comprehensive AML/ATF/Sanctions compliance program.

BitPay B.V. is subject to applicable Dutch and EU laws and regulations, which includes the Dutch Act on the Prevention of Money Laundering and Terrorism Financing (Wet ter voorkoming van witwassen en financieren van terrorisme (“Wwft”)) and the Dutch Sanctions Act (Sanctiewet 1977) and the regulations promulgated thereunder. BitPay B.V. is registered with and supervised by the Dutch Central Bank (De Nederlandsche Bank N.V.) pursuant to Section 23b(1) of the Wwft.

1.4 Changes

We may update or change these BitPay ID Terms from time to time by posting the amended BitPay ID Terms on bitpay.com. In some instances, upon an update to these Bitpay ID Terms, BitPay may notify you via email, push notification and/or website pop-up. Such updates or changes shall be effective at the time of posting. If you continue to use the Services after we post such changes, your continued use constitutes an acceptance of the amended BitPay ID Terms and an agreement to be bound by them.

If you do not agree to the amended BitPay ID Terms, you must discontinue your use of the Services.

2. Representations

By using the Services, you represent and warrant that you: (i) if an individual, are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside, or, if a business or organization, have all necessary right, power, authority, and capacity to accept and bind such business or organization to these BitPay ID Terms; (ii) are not currently restricted from the Services; (iii) will only maintain one BitPay ID at any given time; (iv) will provide authentic, complete and accurate information and documents to BitPay, and will provide updated information and documentation as necessary to maintain the completeness and accuracy thereof; (v) will not violate any other agreement to which you are a party by entering into and complying with your obligations arising from these BitPay ID Terms; and (vi) will not use the Services to violate any rights of BitPay, including these BitPay ID Terms, or any third party.

You assume all responsibility for your use of, and access to, the Services. BitPay ID is for a single user, company or other legal entity, as applicable. BitPay ID login credentials may not be shared with any third party, including related third parties absent BitPay’s written approval, which may be sought by contacting support@bitpay.com.

3. Registration; Privacy

3.1. Registration; Verification of Your Identity

In obtaining a BitPay ID, you will establish login credentials with BitPay. You will use these login credentials to complete transactions and/or obtain other BitPay services that require BitPay ID. While you may need to update information for your BitPay ID from time to time, you only need to obtain a BitPay ID once.

To obtain your BitPay ID, you must provide the information and documentation requested in the registration process. You agree to keep this information current and accurate and to provide updates within 10 days of any material changes to the information you provided. This data and documentation includes:

• Your full name, exactly as it appears on your identity documentation
• Date of birth
• Physical address
• Email address
• Government identification number (e.g., SSN or TIN)
• Front and back images of appropriate government-issued identity document
• A selfie and liveness check

Additional information on obtaining a BitPay ID is available in our FAQs, including:

• support.bitpay.com/hc/en-us/articles/360040919411-BitPay-ID-Best-Practices-for-Uploading-Documents
• support.bitpay.com/hc/en-us/articles/360037486651-How-do-I-complete-the-BitPay-ID-process-

BitPay engages third parties to assist with providing the Services, including using service providers to securely collect your identity documentation and selfie and to verify the accuracy and authenticity of the submitted documentation, and to provide customer support. You acknowledge and agree that in connection with your use of other BitPay Services, we may need to share portions of your BitPay ID information with third parties, consistent with our Privacy Notice.

If you need support completing the BitPay ID registration process, please contact BitPay Support via our help wizard: https://support.bitpay.com.

3.2 Privacy

To use our Services, you must register with us and submit certain personally identifiable information. You expressly agree that we may collect, disclose, store and otherwise use your information in accordance with the terms of the BitPay Privacy Notice, available at bitpay.com/about/privacy, and which is incorporated into these BitPay ID Terms by reference.

3.3 Securing Your BitPay ID

With regard to your BitPay ID, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your BitPay ID (except as otherwise set forth herein); (iii) not use the BitPay ID of another individual or business or organization; (iv) not transfer your BitPay ID to another party; and (v) notify us of any actual or suspected unauthorized use of your BitPay ID.

4. Personal Use; Limited License; Ownership

Subject to these BitPay ID Terms, BitPay grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Services through a generally available mobile device, web browser or BitPay authorized website to view the Dashboard content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof. This license is personal to you. Other than your transaction history, you may not copy or download any content from the Services except with the prior written approval of BitPay. You acknowledge that, except as otherwise expressly provided, these BitPay ID Terms are solely between you and BitPay.

Furthermore, without the prior written approval of BitPay, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of the Services. Any commercial use not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Services. Your rights are subject to your compliance with these BitPay ID Terms as well as any other agreements applicable to the Services you are using. The Services provided by BitPay are licensed, not sold. The Services, and all copies of the Services, are owned by BitPay or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright and trade secret laws. BitPay reserves all rights not expressly granted to you herein. Nothing in these BitPay ID Terms grants you any right to any BitPay trademark or service mark and you may not use any such mark in any way unless expressly authorized by BitPay.

Making unauthorized copies or distribution of any portion of the Services or otherwise violating these BitPay ID Terms may result in the termination of your BitPay ID, prohibition on use of the Services, and further legal action. BitPay reserves the right to limit your use of or access to any of BitPay’s services, in its sole discretion, in order to maintain the performance and availability of thereof and to enforce these BitPay ID Terms.

BitPay is not liable for the loss, corruption, alteration or removal of any content transmitted using our Services. By using our Services, you expressly waive the right to seek damages and agree to hold BitPay harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Services.

5. Acceptable Use Policy

You agree to comply with all applicable laws and regulations in connection with your use of the Services. You may not use our Services to engage in activities that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:

• Acts that may materially and adversely affect the quality of other users’ experience;
• Actual or attempted unauthorized use or sabotage of any computers, machines or networks;
• Introducing malicious programs into BitPay’s Services, network or servers (e.g. viruses, worms, Trojan horses, etc.);
• Engaging in any monitoring or interception of data not intended for you without authorization;
• Attempting to circumvent authentication or security of any host, network, or account without authorization;
• Reverse engineering, decompiling, disassembling, deciphering or otherwise attempting to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
• Adapting, modifying or creating derivative works based on the Services, technology underlying the Services, or other users’ content, in whole or part;
• Duplicating, (sub)licensing, publishing, broadcasting, transmitting, distributing, performing, displaying, selling, rebranding, or otherwise transferring information found on the Services (excluding content posted by you) except as permitted in these Terms, or as expressly authorized by BitPay in writing;
• Using any method, software or program designed to collect identity information, authentication credentials, or other information;
• Falsifying user identification information;
• Using the Services for anything other than lawful purposes including, but not limited to, intentionally or unintentionally violating any applicable local, state, national or international law; or
• Impersonating any person or entity, including, but not limited to, a BitPay representative, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.

6. Right to Restrict or Terminate Access

BitPay may deny or restrict your access to all or part of the Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that BitPay in its reasonable discretion believes violates applicable laws, regulations, or these BitPay ID Terms (including the Acceptable Use Policy).

In the event that your BitPay ID is terminated, you shall immediately cease use of the Services and any license granted to you under any agreement related to your use of the Services shall immediately terminate. Upon termination, except as prohibited by applicable law or regulation, BitPay reserves the right to delete all of your data and other information stored on BitPay’s servers. BitPay will not be liable to you or any third party as a result of the termination of your BitPay ID or the Services or for any actions taken by BitPay pursuant to these BitPay ID Terms. Without limiting the generality of the foregoing, BitPay will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Services, or the termination thereof.

Upon any termination of your BitPay ID or of the Services, any sections or provisions of these BitPay ID Terms which by their nature should survive or are otherwise necessary to enforce the purpose hereof will survive such termination. Termination of these BitPay ID Terms or the Services does not relieve you from your obligation to pay BitPay any amounts owed to BitPay.

7. Security

We have implemented security measures designed to protect information from accidental loss and from unauthorized access, use, alteration or disclosure. Our security measures include risk assessments and controls for the following: application and system access, system and application development and maintenance, acceptable use, data classification, incident response, disaster recovery and business continuity, and security training. We cannot guarantee that unauthorized persons will never gain access to your information, and you acknowledge that you provide your information at your own risk, except as otherwise provided by applicable law.

8. Indemnity

You agree to indemnify BitPay, its affiliated and related entities, and any of its officers, directors, employees and agents from and against any claims, costs, losses, liabilities, damages, expenses and judgments of any and every kind (including, without limitation, costs, expenses, and reasonable attorneys’ fees) arising out of, relating to, or incurred in connection with any claim, complaint, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these BitPay ID Terms; (b) your wrongful or improper use of the Services; (c) any data, information or material you submit or otherwise transmit through our Services; (d) any other party’s access or use of the Services with your BitPay ID access credentials, or (e) your use of the Services. BitPay reserves the right to assume the exclusive defense and control of any matter otherwise subject to defense by you.

9. Disclaimer of Warranty

WE PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE SERVICES WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT). WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICES (AND OUR WEBSITE): WILL OPERATE ERROR-FREE OR THAT DEFECTS OR ERRORS WILL BE CORRECTED; WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE, UNINTERRUPTED OR SECURE AT ANY PARTICULAR TIME OR LOCATION; ARE FREE FROM VIRUSES OR OTHER HARMFUL CONTENT.

SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, BITPAY’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.

10. Limitation of Liability

IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST DATA OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGE MAY HAVE BEEN INCURRED. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, VIRUS TRANSMISSION OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES, YOUR BITPAY ID, OR ANY INFORMATION CONTAINED THEREIN. IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THE SERVICES EXCEED ONE HUNDRED (100) US DOLLARS. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. FOR CUSTOMERS CONTRACTING WITH BITPAY B.V., WHILE BITPAY DISCLAIMS LIABILITY FOR LOST PROFITS AND INDIRECT DAMAGES, BITPAY B.V. DOES NOT OTHERWISE EXCLUDE ITS LIABILITY FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

EACH PROVISION OF THESE BITPAY ID TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION AND THE PRIOR SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

11. Governing Law; Dispute Resolution

If your contractual relationship is with BitPay, Inc., these BitPay ID Terms, and their application and interpretation, shall be governed exclusively by the laws of the State of Georgia, without regard to its conflict of law rules, and the United States. Further, the Federal Arbitration Act and federal arbitration law apply to these BitPay ID Terms. If your contractual relationship is with BitPay B.V., then these BitPay ID Terms, and their application and interpretation, shall be governed exclusively by the laws of The Netherlands, the European Union, and without regard to their conflict of laws rules. If you are acting as a consumer, and your contract is with BitPay B.V., this choice of law leaves unaffected mandatory statutory consumer protection regulations in your country of residence.

a. Disputes from BitPay, Inc. Shoppers or Recipients

Claims brought by a Consumer: To the extent that your claim meets the applicable jurisdictional requirements, you may choose to pursue your claim in small claims court so long as the claim remains a small claim and is addressed on an individual basis. Except for small claims, any dispute arising in connection with these BitPay ID Terms, use of the Services or our relationship, regardless of type or nature, whether brought by you or BitPay, shall be resolved exclusively by binding arbitration, on an individual basis, pursuant to the American Arbitration Association’s rules of arbitration for consumer-related disputes (accessible here: www.adr.org/sites/default/files/Consumer%20Rules.pdf ). At your request, arbitration may be conducted in person, by telephone or video conference, and may be decided on written briefs, without oral hearings. If the arbitration is held in person, the proceedings will be conducted in your city or county of residence, or in a mutually agreeable location. The arbitrator may award any relief that a court of competent jurisdiction could award and the arbitral decision may be enforced in any court. An arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. To the extent permitted by law, the prevailing party in any action or proceeding to enforce these BitPay ID Terms, any arbitration pursuant to these BitPay ID Terms, or any small claims action shall be entitled to costs and attorneys' fees. If the arbitrator or arbitration administrator would impose filing fees or other administrative costs on you, we will reimburse you, upon request, to the extent such fees or costs would exceed those that you would otherwise have to pay if you were proceeding instead in a court. We will also pay additional fees or costs if required to do so by the arbitration administrator's rules or applicable law.

Claims brought by a Business: Any controversy or claim arising out of or relating to these BitPay ID Terms, or the breach thereof, regardless of the type of claim, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall occur in Atlanta, Georgia. The parties shall evenly divide the costs of the arbitrator and the proceeding, but shall otherwise each be responsible for their own attorney, expert and other costs and expenses.

All claims: Any arbitration shall be heard before a single arbitrator, and shall be conducted exclusively in the English language. Any disputes as to the interpretation, application or scope of this arbitration provision shall be determined solely by the arbitrator, and not by a court or judge.

CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). YOU AGREE THAT THERE MAY BE NO CLASS ARBITRATION. BY AGREEING TO THESE TERMS YOU WAIVE ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION, HAVE A TRIAL BEFORE A STATE OR FEDERAL COURT (EXCEPT AS TO CONSUMERS BRINGING SMALL CLAIMS ACTIONS) OR TO HAVE ANY TRIAL BY JURY.

If the foregoing Class Action Waiver becomes unenforceable, then this arbitration provision shall be struck in its entirety, and any claims shall be subject solely to the jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA. The parties consent to such jurisdiction and venue, and waive any defense or objection thereto, including any claim of inconvenient forum.

b. Disputes from BitPay B.V. Shoppers or Recipients

Under Dutch law you have a statutory legal responsibility to verify correct performance by us and to complain about any defects in the performance of our obligations. You hereby agree to verify correct performance by us and to complain about any defects in the performance of our obligations to us in writing within six (6) months after you have received our Services. Defects that are not reported to us within this complaints period of six (6) months will be qualified as lapsed and can no longer be invoked against us.

Any claim against us, including but not limited to claims for damages, claims based on undue payment or claims regarding the performance of our obligations to you, is subject to a limitation period of twelve (12) months.

Claims brought by a Consumer: Any controversy or claim arising out of or relating to these BitPay ID Terms, or the breach thereof, regardless of the type of claim, shall be settled by the competent court.

Claims brought by a Business: If your relationship is with BitPay B.V. and a disagreement or dispute arises that in any way involves the Acceptance Services or the Terms and cannot be resolved between the parties with reasonable effort, the disagreement or dispute shall be resolved exclusively by final and binding arbitration administered by the International Chamber of Commerce (ICC) in accordance with its Rules of Arbitration. The seat of such arbitration shall be Amsterdam, The Netherlands. The arbitration will be conducted before a single arbitrator in the English language. Proceedings shall occur virtually or, if in person, in Amsterdam, The Netherlands, or such other location as may be agreed upon by the parties. The parties shall evenly divide the costs of the arbitrator and the proceeding, but shall otherwise each be responsible for their own attorney, expert and other costs and expenses.

Any court proceedings in The Netherlands before, during or after the arbitration will - to the extent allowed by law - exclusively be dealt with by the Amsterdam District Court or the Amsterdam Court of Appeal, whichever has jurisdiction, following proceedings in English before the Chambers for International Commercial Matters (Netherlands Commercial Court, which consists of the NCC District Court, the NCC Court in Summary Proceedings and the NCC Court of Appeal). The NCC Rules of Procedure (see www.ncc.gov.nl) apply to these proceedings. This clause is not intended to exclude Supreme Court appeal.

12. Electronic Notices and Disclosures

You agree to accept communications from us in an electronic format, and agree that all terms, conditions, agreements, notices, disclosures or other communications that we provide to you electronically will be considered to be “in writing”.

13. Miscellaneous

If any provision of these BitPay ID Terms is deemed invalid or unenforceable under applicable law, then that provision shall be conformed to law so as to achieve the original intent to the extent possible. If the provision cannot be conformed, it shall be struck from these BitPay ID Terms to the extent necessary, and all other provisions shall remain in full force and effect. Any failure to enforce any provision of these BitPay ID Terms on any occasion shall not act as a waiver on that or any other occasion of that or any other provision. As to their subject matter, these BitPay ID Terms comprise the entire agreement between you and BitPay. If you have any questions, complaints, or need customer support, you may contact BitPay via post at BitPay, Inc., 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499, USA, or BitPay B.V., Stadsplateau 7 WTC office 7, 3521 AZ, Utrecht, The Netherlands; via email at support@bitpay.com, or using our online support wizard at https://support.bitpay.com.

BitPay Send Terms of Use

TERMS EFFECTIVE ON 1 JANUARY 2022

These BitPay Send Terms of Use (the “BitPay Send Terms”) govern the use of the products, services or any other features, technologies or functionalities related to services that enable you to send cryptocurrency to recipients (“Services”) provided by BitPay (“BitPay”, “we”, “our”, or “us”) through BitPay’s website, API or through any other means we provide to you (“Business Customer”, “you” or “your”). By using the Services, you accept these BitPay Send Terms and agree to be bound by them, confirm that you have read, understood, and accepted all of the provisions contained herein, including, without limitation, Section 16.7, Governing Law; Arbitration; Waiver of Class Action.

1. Our Services; Contracting Entity

1.1 Our Services

BitPay is a blockchain/cryptocurrency payment processor. BitPay is not a cryptocurrency exchange, cryptocurrency custody service or custodial wallet. The Services enable you to send cryptocurrency payments (“Payouts”) to your payout recipients (e.g., employees, contractors, vendors) (“Recipients”).

By using the Services, you authorize BitPay to act as your agent and to receive funds and disburse cryptocurrencies on your behalf to Recipient wallet addresses as directed by you, and to take any and all actions that we think are necessary or desirable to provide the Services.

1.2 BitPay Contracting Entity

Unless you are a resident of one of the countries mentioned in the following sentence or you are funding your Payouts in Euros or Great British Pounds, these BitPay Send Terms are between you and BitPay, Inc., a Delaware, USA corporation, with offices at 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499, USA. If you are funding your Payouts in Euros or Great British Pounds, or are a resident of the following countries, then these BitPay Send Terms are between you and BitPay B.V.: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland or the United Kingdom. BitPay B.V. is a Dutch private company with limited liability, having its registered address at Stadsplateau 7 WTC office 7, 3521 AZ, Utrecht, The Netherlands and registered with the trade register of the Dutch Chamber of Commerce under number 58655891. For simplicity, we will use the term BitPay in these BitPay Send Terms to refer to the BitPay entity with which you have a contractual relationship.

2. Our Regulatory Compliance

BitPay, Inc. is subject to U.S. laws and regulations. This includes the Bank Secrecy Act, the economic and trade sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury, the USA PATRIOT Act, and other anti-money laundering (AML) and anti-terrorist financing (ATF) laws. BitPay, Inc. is also a registered Money Service Business with the Financial Crime Enforcement Network of the U.S. Department of the Treasury (FinCEN) and is a licensed money transmitter in the U.S. states where applicable law requires it to be licensed. Under applicable laws and regulations, BitPay, Inc. is required to maintain a comprehensive AML/ATF/OFAC Sanctions compliance program.

BitPay B.V. is subject to applicable Dutch and EU laws and regulations, which includes the Dutch Act on the Prevention of Money Laundering and Terrorism Financing (Wet ter voorkoming van witwassen en financieren van terrorisme (“Wwft”)) and the Dutch Sanctions Act (Sanctiewet 1977) and the regulations promulgated thereunder. BitPay B.V. is registered with and supervised by the Dutch Central Bank (De Nederlandsche Bank N.V.) pursuant to Section 23b(1) of the Wwft.

3. Representations and Warranties

You represent and warrant that:

• The authorized representative accepting the BitPay Send Terms on your behalf is at least the age of majority and has all necessary power and capacity to bind the Business Customer hereto;
• You have all necessary right, power, authority and ability to enter into and perform under the BitPay Send Terms and use the Services;
• You are duly organized, validly exist, in good standing under the laws of the state and country of formation, and duly qualified and in good standing in each jurisdiction in which the conduct of your business requires you to so qualify;
• Your use of the Services will not contravene any applicable international, federal, state or local laws or regulations;
• You ensure that your use of the Services does and at all times will comply with all applicable anti-money laundering/anti-terrorist funding compliance laws and regulations, including, without limitation, all OFAC-administered sanctions programs and any other sanctions programs that may apply to you based on the jurisdiction(s) in which you operate your business and serve your customers;
• Your use of the Services is subject to your own anti-money laundering/anti-terrorist funding compliance program which complies with the OFAC sanctions program and any other sanctions programs that may apply to you;
• You will comply with applicable tax laws and regulations that may apply to your use of the Services, including any necessary tax withholdings;
• Your use of the Services will not violate the BitPay Send Terms and any other applicable terms of use; and
• All information that you have provided to us, and may from time to time provide to us, is and shall continue to be true and complete, or you will promptly provide updated information to maintain the accuracy and completeness of such information.

4. Your Business Customer Account

4.1 Account Opening and Registration

In order to use the Services, you must open a BitPay business account (“Account”). When you open an Account, you will be asked to submit business-related information such as, but not limited to, name, mailing address, physical address, phone number, email address, information relating to the ultimate beneficial owner(s) or the individual(s) having significant control over the business, legal name, fictitious name (i.e. DBA), and company website.

You may be asked to submit additional information and/or documents to enable us to verify your identity and assess business risk, such as date of birth, corporate formation information (as applicable), tax identification number, government-issued identification, third-party verification such as recent bank statements or letter of good standing, compliance program documentation, and/or information regarding your Recipients.

The information you provide at the time of opening the Account must be accurate and complete, and you must inform us within ten (10) business days of any changes to such information. BitPay has the right to reject your Account registration, to later close your Account, or to restrict the provision of Services to you if you do not provide and maintain accurate, complete and satisfactory information.

4.2 Prohibited Use and Business

4.2.1 Prohibited Use

In connection with your use of the Services, and your interactions with other users and third parties, you agree you will not engage in the following Prohibited Uses. This list is non-exhaustive and we reserve the right to modify it at any time. It is within our sole discretion to determine whether an activity falls into one of these categories. If you are uncertain as to whether or not your use of the Services involves a Prohibited Use or have questions about how these requirements apply to you, please contact us at https://support.bitpay.com.

• Unlawful Activity: Actions which violate, or would assist in violation of, any law, statute, ordinance, or regulation, including applicable sanctions programs including but not limited to those maintained by the U.S. Department of Treasury's Office of Foreign Assets Control ("OFAC"), Dutch Sanctions Act, or which would involve proceeds of any unlawful activity; activity which would publish, distribute or disseminate any unlawful material or information.
• Abusive Activity: Actions which impose an unreasonable or disproportionately large load on our infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information; transmit or upload any material to our computer systems, networks or sites that contain viruses, trojan horses, worms, or any other harmful or deleterious programs; attempt to gain unauthorized access to our computer systems, networks or sites or our other customers’ Accounts, computer systems or networks connected to us, through any other means; interfere with another individual's or entity's access to or use of the Services; use information of another party to access or use our computer systems, networks or sites, except in the case of specific Business Customers which are specifically authorized by a user to access such user's Account and information; transfer your Account access or rights to your Account to a third party, unless by operation of law or with the express written permission of BitPay; or harvest or otherwise collect information from our computer systems, networks or sites about others, including without limitation email addresses, without proper consent.
• Abusive Actions Against Others: Actions which defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hateful or violent acts against others.
• Fraud: Actions which operate to defraud us, our users, or any other person; provide any false, inaccurate, or misleading information to us.
• Intellectual property infringement: Transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law, including but not limited to sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; use of any BitPay intellectual property, name, or logo, including use of BitPay trade or service marks, without express consent from BitPay or in a manner that otherwise harms BitPay or any BitPay brand; any action that implies an untrue endorsement by or affiliation with BitPay.

4.2.2 Prohibited Business

In addition to the Prohibited Uses, you may not use the Services in connection with any of the following categories of businesses, business practices, or items for sale. Most Prohibited Business categories are imposed by the requirements of our banking providers or regulators. This list is non-exhaustive and we reserve the right to modify it at any time. It is within our sole discretion to determine whether an activity falls into a Prohibited Business category. If you are uncertain as to whether or not your use of the Services involves a Prohibited Business category, or have questions about how these requirements apply to you, please contact us at https://support.bitpay.com.

• Drugs and drug paraphernalia (e.g., narcotics, controlled substances, and any equipment designed for making or using drugs);
• Marijuana/cannabis dispensaries and related products and businesses;
• Weapons, munitions, gunpowder and other explosives (including fireworks);
• Toxic, flammable, and radioactive materials;
• Pseudo-pharmaceuticals;
• Substances designed to mimic illegal drugs;
• Sexually explicit content;
• Sexually-related services;
• Pyramid and investment schemes, multi-level marketing schemes, and other unfair, predatory or deceptive practices;
• Items used for speculation or hedging purposes (such as derivatives);
• Credit and collection services;
• Items that infringe or violate any intellectual property rights such as copyrights, trademarks, trade secrets, or patents, including counterfeit or unauthorized goods;
• Products and services with varying legal status from state to state;
• Transactions that disclose the personal information of third parties in violation of applicable law; and
• Transactions related to cloud-mining.

4.3 Restricted Business

If you engage in any of the following categories of businesses, business practices, and items for sale, you will only be allowed to transact as expressly authorized by us and may be required to agree to additional conditions, make supplemental representations and warranties, complete enhanced onboarding procedures, and operate subject to restrictions. This list is non-exhaustive and we reserve the right to modify it at any time. It is within our sole discretion to determine whether an activity falls into one of these categories. If you are uncertain as to whether or not your use of the Services involves a Restricted Business, or have questions about how these requirements apply to you, please contact us at https://support.bitpay.com.

• Charitable organizations;
• Religious/spiritual organizations;
• Money Services Business as defined by FinCEN of the United States Department of the Treasury;
• e-Wallets;
• Foreign and currency exchange services;
• Sale or trade of cryptocurrencies;
• Transactions associated with purchase or sale of annuities or lottery contracts, lay-away systems, banking, offshore banking, transactions to finance, investing, investment related products; and
• Transactions involving gambling or any activity requiring an entry fee and a prize, including but not limited to casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, and sweepstakes, if you and your Recipients are located exclusively in jurisdictions where such activities are permitted by law.

4.4 Guarding Your Password

You will choose a password when registering for your Account. You are responsible for maintaining the confidentiality of your password and Account access credentials. You are fully responsible for all activities that occur with the use of your password or Account. Please notify us immediately if you become aware of any unauthorized use of your password or Account or any other breach of your security which may compromise your password or Account. You may not allow third parties or unauthorized users to use your Account. We will not be liable for any loss that you may incur as a result of someone else using your password or Account, either with or without your knowledge. You may notify BitPay of a security breach regarding your password or Account by emailing support@bitpay.com or using BitPay’s support wizard: https://support.bitpay.com.

4.5 Records

4.5.1 Our Obligations

As required by applicable laws and regulations, BitPay is required to maintain records of all documentation and information related to your Account for the duration that your Account is active and after your Account is closed.

4.5.2 Your Obligations

You may be required by applicable laws and regulations to maintain records regarding your Account and Payouts. You are solely responsible for determining the Payouts records you must maintain.

4.5.3 Request for Documentation and Right to Inspect Records

Either Party or its auditors, an appropriate regulator, or other relevant competent authority may request to obtain and inspect certain of the other Party’s business records with reasonable advance notice or immediately if required by law, a regulator, or other relevant authority. If you refuse such request, we reserve the right to suspend or terminate your Account.

4.5.4 Information Sharing

You hereby authorize us to share information about you, your Account and Account activity with law enforcement, regulators and government agencies. We hereby also authorize you to share information about us and our Services to you with law enforcement, regulators and government agencies.

4.6 Account Suspension and Closure

4.6.1 Your Right to Close Your Account

You may close your Account anytime. You will still be obligated to us for any fees incurred, if applicable, before the closure, and we will return to you any funds not associated with pre-closure Payouts. If your Account balance is below our documented minimum transfer amount, you may be responsible for any applicable transaction fees that may be incurred in the funds transfer.

4.6.2 Our Right to Decline, Suspend, or Close Your Account

We reserve the right to decline to process a Payout, to provide our Services to you or immediately suspend or close your Account, without notice, if we learn or reasonably suspect, in our sole discretion, that you will use or have used your Account to engage in unlawful or improper activity in violation of applicable laws or regulations, the BitPay Send Terms, and/or our other applicable terms of use, including but not limited to a violation of Section 4.2, Prohibited Business or Use, or Section 4.3, Restricted Business. We reserve the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, sanctions programs, legal process or governmental request.

Additionally, if your Account does not have a Payout for more than twelve consecutive months, we reserve the right to suspend the Account and automatically disable processing capabilities. You will receive information about the process to reactivate the Account.

4.6.3 Effect of Account Closure

If your Account is closed for any reason, you agree: (a) to continue to be bound by the surviving provisions of the BitPay Send Terms, (b) to immediately stop using the Services, (c) that the license provided under the BitPay Send Terms shall end, (d) to remove from your website, apps and marketing materials and discontinue using any BitPay service marks, logos or other branding, (e) that we will retain certain information and Account data as required under applicable laws and regulations, (f) that we will return to you any balance in your Account; and (g) that we shall not be liable to you or any third party for termination of access to the Services, closure of an Account, or retention of information or Account data.

5. Making Payouts

5.1 Inviting and Verifying Recipients

Prior to receiving a Payout, to comply with BitPay’s compliance requirements, your Recipient must verify his or her identity by signing up for BitPay’s identity verification account, called “BitPay ID,” or signing in with an existing BitPay ID. During this process, the Recipient must provide a valid cryptocurrency address which will enable receipt of Payouts.

BitPay will confirm that the Recipient’s provided cryptocurrency address is valid, and does not appear on applicable sanctions lists, and is otherwise acceptable from a risk exposure perspective. However, BitPay cannot confirm that the address truly belongs to the Recipient, nor that the Recipient possesses private keys to the associated wallet. BitPay is not responsible for any errors related to any provided address.

To have a cryptocurrency address, Recipients need a cryptocurrency wallet. Recipients are free to choose any cryptocurrency wallet, including the BitPay wallet. Use of the BitPay wallet is solely subject to BitPay’s Wallet Terms of Use, which are between BitPay and the wallet holder.

Regardless of the cryptocurrency wallet used, including the BitPay wallet, BitPay has no control over or access to the private keys for such wallet, and therefore no control over or access to the Recipient’s funds. BitPay does not assume any risk or liability for a Recipient’s use of any wallet.

BitPay is not responsible for, and cannot assist with recovery of, any loss of cryptocurrency funds incurred if a wallet is compromised, for example due to loss of or unauthorized access to private keys, accidental sharing of a backup, a bug in the user’s device or the wallet software, or a malicious attack on the wallet software. In the event a Payout is made to a wallet that becomes compromised or inaccessible, it is up to you to decide how to handle any inquiries or claims. BitPay does not get involved in resolving such issues.

5.2 Supported Cryptocurrencies

Currently, BitPay supports Payouts only in certain cryptocurrencies. BitPay may enable additional cryptocurrencies in the future. Your recipients will select the cryptocurrency in which they wish to receive their Payout.

5.3 Funding and Executing Payouts

Payouts are only processed if you have sufficient funds available in your Account balance at the time the Payouts are sent. As part of your onboarding process, we will provide you with instructions for funding and maintaining your Account. Payouts are sent pursuant to the schedule listed in BitPay’s FAQs: support.bitpay.com/hc/en-us/articles/360052494652-Getting-started-with-BitPay-Send-for-merchants-. BitPay will update the payout frequency from time-to-time, in which case the updated schedule will be noted in this FAQ.

BitPay locks the cryptocurrency exchange rate at the time the Payout request is executed. You agree that you assume the volatility risk of the fiat currency in which you hold a balance in your Account. For example, if you instruct us to send $150.00 worth of Bitcoin to a Recipient, BitPay will lock the exchange rate, send the Bitcoin equivalent to the Recipient, and debit $150.00 (plus the Payout processing fee, as set forth in Section 12) from your Account balance, but we do not guarantee the value of the U.S. Dollar or any other applicable fiat currency relative to any benchmark.

The payment of cryptocurrency by BitPay to a Recipient is evidenced via public information in the blockchain and via confirmation reporting made available to you in BitPay’s API.

If for some reason a Payout cannot be completed pursuant to your instructions, BitPay will retain the associated funds, which we will either return to you or retain in your Account to use to fund the Payout upon receiving updated instructions from you.

5.4 Competitive Exchange Rate Calculation for Payout Recipients

When BitPay executes Payout requests, we use BitPay’s Best Ask (“BBA”) rate. All Payouts in a set of instructions use the same exchange rate. For more information about how BitPay calculates exchange rates and factors in market depth, please refer to bitpay.com/exchange-rates.

5.5 Finality of Payouts

We will process Payouts according to your instructions. You are responsible for the content and accuracy of the Payout request. You should verify all transaction information prior to submitting instructions to BitPay, as the transaction may not be cancelled or reversed once initiated.

6. Your Use of Third-Party Services

In using the BitPay website or the Services, you may separately be offered additional services, products or promotions by third parties. If you decide to use any of these third-party services, you do so at your own risk and are solely responsible for reviewing, understanding and complying with the associated terms and conditions. We expressly disclaim any liability for third-party services and are not responsible for the performance of third-party services or servicers.

7. Security

We have implemented security measures designed to protect information from accidental loss and from unauthorized access, use, alteration or disclosure. Our security measures include risk assessments and controls for the following: application and system access, system and application development and maintenance, acceptable use, data classification, incident response, disaster recovery and business continuity, and security training. We cannot guarantee that unauthorized persons will never gain access to your information, and you acknowledge that you provide your information at your own risk, except as otherwise provided by applicable law. If we reasonably suspect or we become aware of a breach of our security measures that may have impacted you, your Account or your information, we will provide you with notice within 72 hours of gaining such suspicion or becoming aware of such breach. Such notice will be provided to your email address included in your Business Customer profile.

8. Privacy and Data Protection

Our Privacy Notice, including our California Consumer Privacy Act (“CCPA”) terms and EU Privacy Notice, is available at bitpay.com/about/privacy, and is incorporated by reference into these Terms.

9. Our Ownership of the Services and the BitPay Website; Use of Marks

9.1 Our Ownership of the Services and BitPay Website

You agree and acknowledge that we own all right, title, and interest in the Services, the associated software, technology tools and content, the BitPay service marks and logos, the BitPay website, the content displayed on the website, and other materials produced by BitPay (collectively, “BitPay IP”). You are only permitted to use the Services and BitPay IP to offer the Services to your Recipients, according to the BitPay Send Terms. We grant you a personal, limited, revocable, non-exclusive and non-transferable license to use BitPay IP. You shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare BitPay IP or any portion thereof, or use BitPay IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. You shall not prepare any derivative work based on BitPay IP, nor shall you translate, reverse engineer, decompile or disassemble BitPay IP.

9.2. Use of BitPay Marks

While you have an active Account with BitPay, you may use those BitPay Marks that are made available to you by us through our Brand Guidelines and strictly subject to your use being consistent with the Brand Guidelines. We reserve the right to update the BitPay Brand Guidelines from time to time, and you are responsible for maintaining compliance with the then current version, provided that you have up to sixty days following an update to make any necessary changes. We will make commercially reasonable efforts to provide notice of any changes to the Brand Guidelines. The Brand Guidelines are available via our website at brand.bitpay.com. Without waiving any rights that may be available to us, if we determine that you are using any BitPay Mark inconsistent with the Brand Guidelines or in a manner that we reasonably determine is objectionable, we will provide you with notice and you agree to promptly discontinue the objectionable use. Failure to discontinue objectionable uses or repeated violations of the Brand Guidelines will be deemed a breach of these BitPay Send Terms. Any and all goodwill arising from your use of the BitPay Marks will inure to our sole and exclusive benefit.

10. Advertising and Marketing

With your prior written approval, we may publish your corporate name, URL, artwork, text, logo, case studies, and other publicly available information about your business ("Content") in BitPay's promotional materials, marketing channels and business directory. A third party may use BitPay's publicly available Content and tailor the data to create entries for directories or other channels, and the data listed on third-party directories or channels will be subject to separate third-party terms of use. We may also request a testimonial or quote in the form of a blog post, promotional material, press release, or interview, and/or a reference. You have no obligation to provide Content, a testimonial, quote or reference. If the Parties wish to engage in an advertising or marketing campaign together, they will execute a separate marketing agreement.

You represent and warrant to us that you have the right to provide the Content to us, and that the use, copying, modification and publication of the Content by us: (a) will not infringe, violate or misappropriate any third-party copyright, patent, trade secret or other proprietary rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or otherwise violate any law.

11. Complaints; New York Notice

11.1 Recipient Complaints

If we receive a complaint from a Recipient, we will send it to you for resolution. We reserve the right to terminate Business Customer accounts that receive excessive complaints (see Section 4.6.2, Our Right to Decline, Suspend, or Close Your Account).

11.2 Business Customer Complaints

If you wish to register complaints regarding our Services, you should contact us via:

For BitPay, Inc. Business Customers:

• Website: https://support.bitpay.com
• Phone: 1-404-907-2055
• Mail: 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499

For BitPay B.V. Business Customers:

• Website: https://support.bitpay.com
• Mail: Stadsplateau 7 WTC office 7, 3521 AZ, Utrecht, Netherlands

11.3 SPECIAL NOTICE FOR NEW YORK RESIDENTS

Additionally, the New York State Department of Financial Services will also accept complaints from New York Residents (a defined term in the New York Virtual Currency License) regarding BitPay:

• Website: www.dfs.ny.gov/complaint
• Phone: 1-800-342-3736
• Mail: 1 State Street, New York, New York 10004-1511

11.4 DISCLOSURE: Material Risks of Virtual Currency Disclosure Under 23 NYCCR 200.19

While there are material risks from various forms of payment (such as cash, other fiat currencies, network card payments, other proprietary electronic payments and alternative virtual currency payments), BitPay discloses the following:

1. Virtual Currency (like Bitcoin) is not legal tender, is not backed by the government, and accounts and value balances are not subject to Federal Deposit Insurance Corporation or Securities Investor Protection Corporation protections;
2. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of Virtual Currency;
3. Transactions in Virtual Currency may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable;
4. Some Virtual Currency transactions shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that the Payout is sent;
5. The value of Virtual Currency may be derived from the continued willingness of market participants to exchange Fiat Currency for Virtual Currency, which may result in the potential for permanent and total loss of value of a particular Virtual Currency should the market for that Virtual Currency disappear;
6. There is no assurance that a Person who accepts a Virtual Currency as payment today will continue to do so in the future;
7. The volatility and unpredictability of the price of Virtual Currency relative to Fiat Currency may result in significant loss over a short period of time;
8. The nature of Virtual Currency may lead to an increased risk of fraud or cyber attack;
9. The nature of Virtual Currency means that any technological difficulties experienced by BitPay may prevent Payouts made in Virtual Currency; and
10. Any bond or trust account maintained by BitPay for the benefit of its customers may not be sufficient to cover all losses incurred by customers.

12. Fees

We charge a processing fee for each Payout successfully processed through your Account. You may choose to bear the processing fee, in which case the processing fee is payable in addition to the Payout amount. For example, if you are making a payout with the equivalent of $150.00 in Bitcoin, and assuming a 1% processing fee, $151.50 will be debited from your Account, and your Recipient will receive Bitcoin worth $150.00 (based on the conversion rate at the time BitPay processes the Payout), less the applicable miner fee. BitPay will retain $1.50 as its processing fee. Alternatively, you may choose to pass the processing fee on to your recipient. In this scenario, if you are making a payout with the equivalent of $150.00 in Bitcoin, and assuming a 1% processing fee, $150.00 will be debited from your Account, and your Recipient will receive Bitcoin worth $148.50 (based on the conversion rate at the time BitPay processes the Payout), less the applicable miner fee. BitPay will retain $1.50 as its processing fee.

Miner fees are the fees required to broadcast cryptocurrency transactions to the relevant blockchain so that the miners will process the transactions and maintain the blockchain. Miner fees are incurred on every on-chain cryptocurrency transaction, including Payouts. BitPay does not retain any portion of the miner fees. Miner fees are variable depending on factors such as network conditions on the applicable blockchain. You may choose to bear the miner fees or have the miner fee deducted from the Payout sent to your Recipient. Either way, miner fees are deducted after the BitPay processing fee.

13. Indemnification

You agree to indemnify BitPay, its affiliates, and any of its and their officers, directors, employees and agents from and against any claims, costs, losses, liabilities, damages, expenses and judgments of any and every kind (including, without limitation, costs, expenses, and reasonable attorneys’ fees) arising out of, relating to, or incurred in connection with any claim, complaint, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises or relates to any actual or alleged breach of your representations, warranties, or obligations set forth in the BitPay Send Terms.

14. No Warranties

EXCEPT AS OTHERWISE SET FORTH IN THESE BITPAY SEND TERMS, WE PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE SERVICES WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT). WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICES (AND OUR WEBSITE): WILL OPERATE ERROR-FREE OR THAT DEFECTS OR ERRORS WILL BE CORRECTED; WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE, UNINTERRUPTED OR SECURE AT ANY PARTICULAR TIME OR LOCATION; ARE FREE FROM VIRUSES OR OTHER HARMFUL CONTENT. WE DO NOT ENDORSE, WARRANT, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED OR ADVERTISED BY A THIRD PARTY THROUGH THE SERVICES OR THROUGH OUR WEBSITE, AND WE WILL NOT BE A PARTY TO NOR MONITOR ANY INTERACTIONS BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

15. Limitation of Liability

EXCEPT AS OTHERWISE SET FORTH IN THESE BITPAY SEND TERMS, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST DATA OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT THAT WE KNEW THAT SUCH DAMAGE MAY HAVE BEEN INCURRED. FOR CUSTOMERS CONTRACTING WITH BITPAY B.V., WHILE THIS LIMITATION OF LIABILITY DISCLAIMS LOST PROFITS AND OTHER INDIRECT DAMAGES, BITPAY B.V. DOES NOT OTHERWISE EXCLUDE ITS LIABILITY FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, VIRUS TRANSMISSION OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES, YOUR ACCOUNT, OR ANY INFORMATION CONTAINED THEREIN.

IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THE SERVICES EXCEED THE FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

16. Miscellaneous

16.1 Taxes

You are solely responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with the use of the Services. You also are solely responsible for collecting, withholding, reporting, and remitting correct taxes to the appropriate tax authorities. We are not obligated to nor will we determine whether taxes apply, nor calculate, collect, report, or remit any taxes to any tax authorities arising from any transaction.

16.2 Assignment

You may not transfer or assign these BitPay Send Terms, or any rights granted by the BitPay Send Terms. You agree and acknowledge that we may assign or transfer the BitPay Send Terms.

16.3 Severability

Should any provision of the BitPay Send Terms be determined to be invalid or unenforceable under any law, regulation, or court order, such determination will not affect the validity or enforceability of any other provision of the BitPay Send Terms.

16.4 Waivers

A Party’s failure to assert any right or provision in the BitPay Send Terms shall not constitute a waiver of such right or provision, and no waiver of any term shall be deemed a further or continuing waiver of such or other term.

16.5 Entire Agreement

The BitPay Send Terms, including other of BitPay’s terms referenced herein, represent the entire understanding between you and us. Headings are included for convenience only and shall not be considered in interpreting the BitPay Send Terms.

16.6 Notices

Any notice or other communication given to a party in connection with the Terms shall be in writing in English. Notices may be sent by a recognized overnight air courier and/or by email. The parties agree that all terms, conditions, agreements, notices, disclosures or other communications that we provide to each other electronically will be considered to be “in writing”. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action. BitPay may send notices to you at the email and physical address that you submit in creating your Account. You may update these addresses through your Account dashboard. Notices to BitPay may be sent to BitPay, Inc., 1201 W Peachtree St NW Ste 2625, PMB 91017, Atlanta, Georgia 30309-3499, USA, Attn: General Counsel, legal@bitpay.com; and notices to BitPay B.V. may be sent to BitPay B.V., Stadsplateau 7 WTC office 7, 3521 AZ, Utrecht, The Netherlands, Attn: Compliance Department, legal@bitpay.com.

16.7 Governing Law; Arbitration; Waiver of Class Action

16.7.1 Dispute Resolution for Contracts with BitPay, Inc.

The BitPay Send Terms and any dispute or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the United States of America, and to the extent that no federal law applies, the laws of the State of Georgia. If a disagreement or dispute in any way involves the Services or the BitPay Send Terms and cannot be resolved between the Parties with reasonable effort, the disagreement or dispute shall be resolved exclusively by final and binding administration by the American Arbitration Association (AAA), to take place in Atlanta, Georgia, U.S. or a location agreed upon by both parties, and will be conducted before a single arbiter pursuant to the applicable Rules and Procedures established by the AAA.

You agree that, unless prohibited by law, there shall be no authority for any claims to be arbitrated on a class or representative basis, and arbitration will only decide a dispute between you and us. Arbitration proceedings must be initiated within one (1) year after the disagreement or dispute arises. If any part of this arbitration clause is later deemed invalid as a matter of law, then the remaining portions of this section shall remain in effect, except that in no case shall there be a class arbitration.

16.7.2 Dispute Resolution for Contracts with BitPay B.V.

Under Dutch law you have a statutory legal responsibility to verify correct performance by us and to complain about any defects in the performance of our obligations. You hereby agree to verify correct performance by us and to complain about any defects in the performance of our obligations to us in writing within six (6) months after you have received our Services. Defects that are not reported to us within this complaints period of six (6) months will be qualified as lapsed and can no longer be invoked against us.

Any claim against us, including but not limited to claims for damages, claims based on undue payment or claims regarding the performance of our obligations to you, is subject to a limitation period of twelve (12) months.

If your contractual relationship is with BitPay B.V. and a disagreement or dispute arises that in any way involves the Acceptance Services or the Terms and cannot be resolved between the parties with reasonable effort, the disagreement or dispute shall be resolved exclusively by final and binding arbitration administered by the International Chamber of Commerce (ICC) in accordance with its Rules of Arbitration. The seat of such arbitration shall be Amsterdam, The Netherlands. The arbitration will be conducted before a single arbitrator in the English language. Proceedings shall occur virtually or, if in person, in Amsterdam, The Netherlands, or such other location as may be agreed upon by the parties. The parties shall evenly divide the costs of the arbitrator and the proceeding, but shall otherwise each be responsible for their own attorney, expert and other costs and expenses.

Any court proceedings in The Netherlands before, during or after the arbitration will - to the extent allowed by law - exclusively be dealt with by the Amsterdam District Court or the Amsterdam Court of Appeal, whichever has jurisdiction, following proceedings in English before the Chambers for International Commercial Matters (Netherlands Commercial Court, which consists of the NCC District Court, the NCC Court in Summary Proceedings and the NCC Court of Appeal). The NCC Rules of Procedure (see www.ncc.gov.nl) apply to these proceedings. This clause is not intended to exclude Supreme Court appeal.

16.8 Updates to BitPay Send Terms

We may make changes to the BitPay Send Terms from time to time, and if we do, we will notify you by revising the date at the top of the BitPay Send Terms. We will provide email or similar notification if material changes are made to the BitPay Send Terms. Unless otherwise noted, the amended BitPay Send Terms will be effective immediately, and your continued use of our Services will confirm your acceptance of the changes. If you do not agree to the amended BitPay Send Terms, you must stop using our Services.

16.9 Force Majeure

We will not be liable for delays in processing or other non-performance caused by such events as fires, telecommunications, utility, or power failures, equipment failures, labor strife, riots, war, non-performance of our vendors or suppliers, acts of God, pandemics, or other causes over which we have no reasonable control.

16.10 Confidentiality

A Party’s “Confidential Information” is defined as any information of the disclosing party, which: (a) if disclosed in a tangible form is marked as “Confidential” or “Proprietary” or if not so marked, should be reasonably understood by the receiving party from the context of disclosure or from the information itself, to be confidential; (b) if disclosed orally or visually is declared to be confidential or, if not so declared, should be reasonably understood by the receiving party from the context of disclosure or from the information itself to be confidential; or (c) is designated as Confidential Information in these BitPay Send Terms. Confidential Information shall include without limitation, information accessed via the BitPay API, technical specifications and processes of each Party, and all Business Customer data. Each Party shall hold the other Party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than solely as required and necessary to perform its obligations under these BitPay Send Terms. Such restrictions shall not apply to Confidential Information that: (a) is known by the recipient prior to the date of disclosure by the disclosing party; (b) becomes publicly known through no act or fault of the recipient; (c) is received by recipient from a third party without a restriction on disclosure or use; or (d) is independently developed by recipient without reference to or knowledge of the Confidential Information.

Notwithstanding the foregoing, a Party may share Confidential Information with an affiliate in the event that the other Party requests services from such affiliate and such affiliate shall be bound by this Section. In the event Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, the Party subject to such requirement shall promptly notify the disclosing party upon learning of the existence or likely existence of such requirement and shall use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protection by order of any disclosed Confidential Information. The Parties’ respective obligations to maintain the confidentiality of information disclosed hereunder shall survive the expiration or termination of the BitPay Send Terms or until such time as such information becomes public information through no fault of the receiving party.

16.11 Survival

The provisions of Sections 3 (Representations and Warranties), 4.6.3 (Effect of Account Closure), 7 (Security), 8 (Privacy), 9 (Our Ownership of the Services and the BitPay Website), 10 (Advertising and Marketing), 13 (Indemnification), 14 (No Warranties), 15 (Limitation of Liability), 16 (Miscellaneous) shall survive the termination of these BitPay Send Terms.

16.12 No Joint Venture or Agency

Nothing in the BitPay Send Terms is intended to, or shall be deemed to, establish any joint venture between the Parties, and other than the limited agency established in Section 1, nothing is intended to establish either Party as an agent of the other.

16.13 Business Days Defined

For the purposes of the BitPay Send Terms, a business day shall be standard business hours on any day excluding Saturday or Sunday and, as to BitPay, Inc., days generally accepted as federal holidays in the United States, and as to BitPay B.V., days generally accepted as holidays in The Netherlands.