SHAPESHIFT
TERMS OF SERVICE

Last Modified: November 9, 2018

Welcome to ShapeShift.io which is owned and operated by ShapeShift AG (collectively, “ShapeShift,” “We,” or “Us”). This page explains the terms by which you may access and use ShapeShift.io and any other product offered by ShapeShift (“Websites”), our Application Programming Interfaces (“API”), and our online and/or mobile services and software (“App”) provided on or in connection with the service to buy, sell, or enable the sale of, certain digital assets (collectively, the “Service”). By accessing or using the Service, or clicking a button or checking a box marked “I Agree”, you signify that you have read, understood, and agree to be bound by these Terms of Service (these “Terms”), to the collection and use of your information as set forth in the ShapeShift Privacy Policy, the Additional Terms for FOX Membership below, and to our Returns and Refunds Policy below, each of which is hereby incorporated by reference. These Terms apply to all visitors, users, and others who register for or otherwise access or use the Service (“Users”).

Certain services may be subject to additional terms and conditions specified by us from time to time, and your use of such services is subject to those additional terms and conditions, which are hereby incorporated into these Terms by reference.

ShapeShift does not endorse or recommend any particular digital asset, transaction, or purchasing strategy. No content on the ShapeShift website nor communications with company personnel constitutes purchase or investment advice. Independent advice should be sought where appropriate. You acknowledge and agree that all transaction decisions are made solely by you and ShapeShift bears no responsibility or liability for the outcome of your decisions.

THE RISK OF LOSS IN BUYING OR SELLING A DIGITAL ASSET (“DIGITAL ASSET”) CAN BE SUBSTANTIAL. YOU SHOULD THEREFORE CAREFULLY CONSIDER WHETHER BUYING OR SELLING A DIGITAL ASSET IS SUITABLE FOR YOU IN LIGHT OF YOUR FINANCIAL CONDITION.

Please read this agreement carefully to ensure that you understand each provision.

1. Use of Our Service

A. Eligibility
This is a contract between you and ShapeShift. You must read and agree to these Terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a legally binding contract with ShapeShift, and only if you are in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of these Terms. The Service is not available to any Users previously removed from the Service by ShapeShift.

B. ShapeShift Service
The Service allows you to buy and sell Digital Assets directly from or to ShapeShift. To sell a Digital Asset to ShapeShift, you will (i) select the Digital Asset that you want to “Sell” and the Digital Asset that you want to “Receive”; (ii) provide a refund address for the Digital Asset deposited and a destination address for the Digital Asset you will receive; and (iii) send the Digital Asset you are selling to the address provided to you by ShapeShift (collectively, the “Transaction”). ShapeShift may charge you a miner fee (a “Miner Fee”) to process the Transaction on your behalf. ShapeShift will calculate the Miner Fee in its discretion, although ShapeShift will always notify you of the Miner Fee before the time you authorize the Transaction by posting it on our Website or at the time of the Transaction. ShapeShift, at its discretion, may modify or update the Service, in whole or in part at any time.
Subject to these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to access and use the Service for your personal use only and as permitted by the features of the Service. You are prohibited from using ShapeShift for any illegal or fraudulent purposes or for the purpose of consummating transactions for any other parties. For the avoidance of doubt, you must be the beneficial owner of the digital assets, the sending address, the destination address and the refund address for each transaction. ShapeShift reserves all rights not expressly granted herein in the Service and the ShapeShift Content (as defined below). ShapeShift may terminate this license at any time for any reason or no reason.

C. ShapeShift App
We may make available software to access the Service via an App. To use the App you must have a mobile device that is compatible with the App. ShapeShift does not warrant that the App will be compatible with your mobile device. You may use mobile data in connection with the App and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. ShapeShift hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the App for one ShapeShift account on mobile devices owned or leased solely by you, for your personal use. You acknowledge that ShapeShift may from time to time issue upgraded versions of the App. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the App is covered by the applicable open source or third-party license end-user license agreement, if any, authorizing use of such code. The foregoing license grant is not a sale of the App or any copy thereof, and ShapeShift or its third-party partners or suppliers retain all rights, title, and interest in the App (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. ShapeShift reserves all rights not expressly granted under these Terms. If the App is being acquired on behalf of the United States Government, then the following provision applies. The App will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The App is subject to United States export laws and regulations. The App may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the App and the Service.

D. ShapeShift Accounts
Your ShapeShift account gives you access to the Service and any other functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a ShapeShift account on behalf of an organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the organization or entity with the authority to bind the organization or entity to these Terms, and that you agree to these Terms on the entity’s behalf.

You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date.

During registration of your account, you agree to provide us with the information we request for the purposes of identity verification and the detection of money laundering, terrorist financing, fraud, or any other financial crime and permit us to keep a record of such information. You will need to complete certain verification procedures before you are permitted to use the Service. Your access to the Service and the limits that apply to your use of the Service, may be altered as a result of information collected about you on an ongoing basis. You authorize us to make inquiries, whether directly or through third parties, that we consider necessary to verify your identity or protect you and/or Us against fraud or other financial crime, and to take action we reasonably deem necessary based on the results of such inquiries. When we carry out these inquiries, you acknowledge and agree that your personal information may be disclosed to and fraud prevention or financial crime agencies and that these agencies may respond to our inquiries in full. This is an identity check only.

Only individuals or institutions that have created a login and successfully completed our identity verification process are considered ShapeShift accountholders or members.

You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify ShapeShift immediately of any breach of security or unauthorized use of your account by emailing us at [email protected]. ShapeShift will not be liable for any losses caused by any unauthorized use of your account.

You may control your User profile and how you interact with the Service by changing the settings in your account settings page. By providing ShapeShift your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and newsletters. If you do not want to receive such email messages, you may opt out by clicking “unsubscribe”, or something similar in the email message. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

E. Service Rules
You agree not to engage in any of the following prohibited activities: (i) modifying, disassembling, decompiling or reverse engineering the Service or the app; (ii) renting, leasing, loaning, reselling, sublicensing, or otherwise transferring the App to any third party or use the App to provide time sharing or similar services for any third party; (iii) other than as specifically approved in writing, any copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (iv) other than as specifically approved in writing, using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the ShapeShift servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that ShapeShift grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (v) transmitting spam, chain letters, or other unsolicited email; (vi) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (vii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (viii) uploading invalid data, viruses, worms, or other software agents through the Service; (ix) collecting or harvesting any personally identifiable information, including account names, from the Service; (x) using the Service for any commercial solicitation purposes; (xi) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (xii) interfering with the proper working of the Service; (xiii) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (xiv) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation removing, circumventing, disabling or otherwise interfering with security-related features or features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; or (xv) deleting the copyright and other proprietary rights notices.

F. Prohibited Activity
In connection with your use of the Service, and your interactions with other Users, and third parties you agree and represent you will not engage in any prohibited business or prohibited use, as discussed in these Terms of Service (“Prohibited Activity”). The list of Prohibited Activities may be updated by ShapeShift at any time at its discretion. 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. We reserve the right to cancel and/or suspend your account and/or block transactions without notice if we determine, in our sole discretion, that your account is associated with a Prohibited Activity.

We also 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. We reserve the right to cancel and/or suspend your Account and/or block transactions or freeze funds immediately and without notice if we determine, in our sole discretion, that your Account is associated with a Prohibited Activity.

G. ShapeShift Memberships

Shapeshift may offer membership programs to Users, including without limitation the FOX Membership. Users that register to participate in a membership program agree to and are subject to the additional terms for FOX Membership.

2. Digital Asset Transactions

A. Digital Asset Prices and Payment Acceptance. Digital Assets are experimental and risky. The Service attempts to provide fair and accurate price and transaction fee information, but this information is volatile and subject to change without advance notice. The price offered to each user for each transaction may be a user-specific or transaction-specific price formed by ShapeShift in its sole discretion. ShapeShift does not provide all users with the same spreads or pricing. The price offered to a user may factor in brokerage, risk, liquidity, and other proprietary factors. For a standard transaction, the price is provided at the time your payment is received and confirmed by the blockchain network, limited to the number of confirmations ShapeShift deems reasonable in order to protect ShapeShift from double spends, 51% attacks or other risks. A payment may be accepted at one block confirmation. At ShapeShift’s discretion, ShapeShift may accept a payment with zero block confirmations. For the avoidance of doubt, a payment broadcasted to the blockchain network does not constitute an acceptance by ShapeShift. You may select the “Precise Amount” feature when submitting a Transaction which provides you with a guaranteed price for a specified period of time so long as ShapeShift receives and accepts your payment within such period of time. ShapeShift only accepts one [form of payment] per Transaction ID (“TXID”). If your funds are deposited in a TXID with more than one Deposit, you will need to contact support to receive a refund. The price will not be honored and your transaction will not be completed. User Transactions that do not confirm within forty-eight (48) hours of being detected may be cancelled. Refund requests will be provided in accordance with our Returns and Refund Policy.

ShapeShift reserves the right to refuse to process or to cancel any pending Transaction as required by law or in response to a subpoena, court order, or other binding government order or to enforce any transaction limits. ShapeShift further reserves the right to delay any Transaction if it perceives a risk of fraud or illegal activity. ShapeShift further reserves the right to refuse to process or cancel any Transaction due to technological issues with the blockchain software, ShapeShift software, or for other technological reasons. ShapeShift cannot reverse a Transaction which has been broadcast to a blockchain network. The Service is available only in connection with those Digital Assets and Transaction limits that ShapeShift, in its sole discretion, decides to support. The Digital Assets and Transaction limits that ShapeShift supports may change from time to time. If you have any questions about which Digital Assets or Transaction limits ShapeShift currently supports, please visit shapeshift.io, or the about page, which lists the current rates for all live coins in your jurisdiction. Under no circumstances should you attempt to use the Services to store, send, request, or receive Digital Assets in any form that are not supported by ShapeShift. ShapeShift assumes no responsibility or liability in connection with any attempt to use the Service for Digital Assets that ShapeShift does not support.

B. Underlying Protocols. ShapeShift does not own or control the underlying software protocols which govern the operation of the Digital Assets supported on our Service. In general, the underlying protocols are open source and anyone can use, copy, modify, and distribute them. By using the Service you acknowledge and agree (i) that ShapeShift is not responsible for the operation of the underlying protocols and that ShapeShift makes no guarantee of their functionality, security, or availability; and (ii) that the underlying protocols are subject to sudden changes in operating rules, which may materially affect the value, function, our ability to have a particular asset listed on our site, and/or even the name of the Digital Asset. In the event of a Digital Asset fork, you agree that ShapeShift may temporarily suspend ShapeShift operations (with or without advance notice to you) and that ShapeShift may, in its sole discretion, decide whether or not to support (or cease supporting) either branch of the forked protocol entirely. You also agree that in the event you send a Transaction at the time of a Digital Asset fork, ShapeShift will only honor the originally-intended transaction that you sent. You acknowledge and agree that ShapeShift assumes absolutely no responsibility whatsoever in respect of an unsupported branch of a forked protocol.

C. Cancellations. You cannot reverse, or change any Transaction marked as complete or pending. You may cancel your account by emailing us at [email protected], however there are no refunds for cancellation of your account, and any amount of FOX Tokens you control will not unlock until the end of the current membership month.

D. Returns and Refunds. ShapeShift will provide refunds solely in accordance with our Returns and Refund Policy below.

E. Taxes. It is your sole responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct through the Service, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities. Your transaction history is available through your account.

F. No Sales to Children. ShapeShift’s Service is not for children, but only for adults. If you are under eighteen (18) years of age, you may use the Service only with involvement and consent of a parent or legal guardian.

G. California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

3. User Content

We do not claim ownership of user-generated content and material. Any and all photographs, articles, images, graphics, videos, sounds, music, audio recordings, text, files, profiles, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content that you (a) submit or post on or through the Service, on any of our blogs, social media accounts or through tools or applications we provide for posting or sharing such content with us; or (b) have posted or uploaded to your social media accounts, including but not limited to Instagram, Twitter, Facebook, Tumblr, Gravatar and Pinterest, which are tagged with any ShapeShift promoted hashtag (collectively “User Content”) shall be deemed nonconfidential and nonproprietary. By submitting or posting any User Content, you grant to ShapeShift and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, delete, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use or otherwise exploit all or any portion of the User Content, as well as your name, persona and likeness included in any User Content and your social media account handle, username, real name, profile picture and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including but not limited to in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, will have the right to (i) receive any royalty or consideration of any kind for the use of the User Content pursuant to these Terms or (ii) inspect or approve the editorial copy or other material that may be used in connection with the User Content. ShapeShift will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. ShapeShift shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content or respond to any User Content. ShapeShift retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason. Subject to the licenses granted in these Terms, you retain ownership of any copyright and other rights you may have in the User Content.

By submitting or posting User Content on the Service or through any tools or applications we provide for posting or sharing your User Content with us, you represent and warrant that (a) you own or control any and all rights in and to the User Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (b) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (c) you are 18 years of age or older; and (d) the User Content does not (1) contain false or misleading information, (2) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (3) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (4) contain any personally identifiable information or any contact information or (5) contain computer viruses, worms or other harmful files. Upon request by ShapeShift, you will furnish ShapeShift any documentation, substantiation or releases necessary to verify your compliance with these Terms. You are solely responsible for the User Content and you hereby agree to indemnify and hold ShapeShift and its employees, agents, affiliates, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.

ShapeShift does not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by you or anyone else. By submitting or posting the User Content you fully and unconditionally release and forever discharge ShapeShift and its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (A) disputes between you and one or more users or any other person or entity, or (B) the use by ShapeShift or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that ShapeShift has no control over, and shall have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. ShapeShift acts as a passive conduit for User Content and has no obligation to screen or monitor User Content. If ShapeShift becomes aware of any User Content that allegedly may not conform to these Terms, ShapeShift may investigate the allegation and determine in its sole discretion whether to take action in accordance with these Terms. ShapeShift has no liability or responsibility to Users for performance or nonperformance of such activities.

ShapeShift has the absolute right to remove and/or delete without notice any User Content within its control that it deems objectionable. You consent to such removal and/or deletion and waive any claim against ShapeShift for such removal and/or deletion. ShapeShift is not responsible or liable for failure to store posted content or other materials you transmit through the Service. You should take measures to preserve copies of any data, material, content or information you post on the Service or any other sites or platforms.

4. Our Proprietary Rights

Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “ShapeShift Content”), and all Intellectual Property Rights (defined below) related thereto, are the exclusive property of ShapeShift and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein or in any applicable additional terms and conditions, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any ShapeShift Content, absent specific consent in writing from ShapeShift. Use of the ShapeShift Content for any purpose not expressly permitted by these Terms is strictly prohibited.

For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

You may choose to or We may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Ideas, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place ShapeShift under any fiduciary or other obligation, and that we are free to use the Ideas without any additional compensation to you, and/or to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, ShapeShift does not waive any rights to use similar or related ideas previously known to ShapeShift, or developed by its employees, or obtained from sources other than you.

5. Privacy

ShapeShift respects the privacy of its users by not requesting any information that is unnecessary for the use of the Service or to comport with our obligations under applicable law. ShapeShift also does not in any way obscure the blockchain information that it does request or obtain. Due to the inherent transparency of blockchains, transactions to and from ShapeShift are public and easily correlated. Attempting to utilize ShapeShift to obscure transactions or assets in any way is pointless, ineffective, and ill-advised. Law enforcement has full access to blockchain information that goes in or out of ShapeShift’s system.

You accept that ShapeShift will comply willingly with all legal requests for information from it. We reserve the right to provide information to law enforcement personnel and other third parties to answer inquiries, participate in investigations, respond to legal process, respond to the order of a court of competent jurisdiction and those exercising the court’s authority, and to protect ShapeShift and our users.

We care about the privacy of our Users. You understand that by using the Service you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to and processed in the United States. By accepting these Terms, you expressly allow us to export data outside of the jurisdiction in which you reside or are located when you access ShapeShift.

6. Security

ShapeShift cares about the integrity and security of your personal information, and stores all personal information provided by users in an encrypted fashion. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

7. Third-Party Links and Information

The Service may contain links to third-party materials that are not owned or controlled by ShapeShift. ShapeShift does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Service or share your User Content on or through any third-party website or service, you do so at your own risk, and you understand that these Terms and ShapeShift’s Privacy Policy do not apply to your use of such sites. You expressly relieve ShapeShift from any and all liability arising from your use of any third-party website, service, or content, including without limitation User Content submitted by other Users. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that ShapeShift shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

8. Suspension, Termination and Cancellation

We may, without prior notice, suspend the Service, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage or Transaction limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or ShapeShift may: (a) suspend, restrict, or terminate your access to any or all of the Services, and/or (b) deactivate or cancel your account if: (i) we are so required by a facially valid subpoena, court order, or binding order of a government authority; (ii) we reasonably suspect you of using the Service in connection with a Prohibited Activity; (iii) use of your account is subject to any pending litigation, investigation, or government proceeding and/or we perceive a heightened risk of legal or regulatory non-compliance associated with your account activity; (iv) our service partners are unable to support your use; (v) you take any action that ShapeShift deems as circumventing ShapeShift’s controls, including, but not limited to, opening multiple accounts, consummating transactions for the benefit of a third party or abusing promotions which ShapeShift may offer from time to time; (vi) suspend or terminate your account or access to the Service for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.

You are solely responsible for your interactions with other ShapeShift Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. ShapeShift shall have no liability for your interactions with other Users, or for any User’s action or inaction.

If ShapeShift suspends or closes your account, or terminates your use of the Service, in whole or in part, for any reason, we will use commercially reasonable efforts to provide you with notice of our actions unless a court order or other legal process prohibits ShapeShift from providing you with such notice. You acknowledge that ShapeShift’s decision to take certain actions, including limiting access to, suspending, or closing your account, may be based on confidential criteria that are essential to ShapeShift’s risk management and security protocols. You agree that ShapeShift is under no obligation to disclose the details of its risk management and security procedures to you.

9. Indemnity

You agree to defend, indemnify and hold harmless ShapeShift and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Service, including any data or content transmitted or received by you; (b) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of the Service with your unique username, password or other appropriate security code.

10. No Warranty

The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from ShapeShift or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, ShapeShift, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Service.

ShapeShift does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and ShapeShift will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.

Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this agreement will not apply to the extent prohibited by applicable law.

11. Limitation of Liability

To the maximum extent permitted by applicable law, in no event shall ShapeShift, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, this service. Under no circumstances will ShapeShift be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.

To the maximum extent permitted by applicable law, ShapeShift assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content; (b) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (c) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (d) any interruption or cessation of transmission to or from the Service; (e) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (f) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (g) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall ShapeShift, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to ShapeShift hereunder or one hundred u.s. dollars (usd $100.00), whichever is greater.

This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if ShapeShift has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.

Some states or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state or jurisdiction. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by applicable law.

12. Governing Law, Arbitration

A. Governing Law. These Terms shall be governed by the internal substantive laws of the Canton of Zug, Switzerland, without respect to its conflict of laws principles. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in the canton of Zug, Switzerland for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Zug, Switzerland is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

B. Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from ShapeShift. For any dispute with ShapeShift, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that ShapeShift has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution (“Arbitration Institution”) in force on the date on which the notice of arbitration is submitted in accordance with those rules. The arbitration will be conducted in Zug Switzerland, in English, unless you and ShapeShift agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any Arbitration Institution fees, administrative and arbitrator fees in accordance with Arbitration Institution rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) Arbitration Institution may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from Arbitration Institution; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing ShapeShift from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.

13. Additional App Store Terms

A. App from Apple App Store. The following applies to any App you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms is solely between you and ShapeShift, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to ShapeShift as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to ShapeShift as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, ShapeShift, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and ShapeShift acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.

14. General

A. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by ShapeShift without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

B. Notification Procedures and Changes to these Terms. ShapeShift may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by ShapeShift in our sole discretion. ShapeShift reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. ShapeShift is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. ShapeShift may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the bottom of this page and notify you that material changes have been made to these Terms. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.

C. Entire Agreement/Severability. These Terms, together with any additional terms, amendments and any additional agreements you may enter into with ShapeShift in connection with the Service, shall constitute the entire agreement between you and ShapeShift concerning the Service. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.

D. No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and ShapeShift’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.

E. Contact. Please contact us by submitting a request to us at https://shapeshift.zendesk.com/hc/en-us/requests/new with any questions regarding these Terms. You may also write to us at: ShapeShift AG, Gartenstrasse 6, 6300 Zug Switzerland.

ABOUT FOX MEMBERSHIP

ShapeShift AG and/or its affiliates (“ShapeShift” or “We” or “Us”) offers a membership program (the “ShapeShift Membership”) which applies across all ShapeShift products and services. higher levels are optional and require FOX tokens. Members (defined below) benefit primarily from a transaction fee discount on volume transacted by the Member.

Membership Levels

There is one FOX Membership level, which grants the Member unique benefits and privileges (“Perks”).

Level 1 – 0 FOX Tokens

  • Cost: Free
  • Transaction Value Limit: $10,000
  • FOX Back: 0.05%
  • Monthly Cap on Volume: $50,000

Becoming a Member

To become a Member, any user who possesses the required amount of FOX tokens may commit (aka “lock”) these tokens within a smart-contract for a 30-day Membership.

How to Gain Membership with FOX

I. Log in to your ShapeShift account
II. Click the option to gain Membership
III. Your FOX tokens will then be locked for 30 days of Membership

This Membership will then auto-renew each 30-day interval, until the Member chooses to not renew. A Member can cancel at any time. If a Member chooses to cancel their FOX Membership, the FOX Membership will end after the current 30-day period expires, and the Member will receive back the same amount of FOX tokens that were committed to initiate the FOX Membership. The user may then withdraw the FOX tokens that are not committed.

FOX tokens are thus perpetually useful for FOX Membership. They can be committed at the user’s discretion to gain FOX Membership at any time for 30 day intervals, indefinitely if the Member so chooses. The user does not spend, lose or “burn” the FOX tokens in order to become a Member. The FOX tokens simply grant access to the hodler, like a key, or a membership card.

“CertiFOX” Smart Contract

FOX Membership is certified and enforced via an open-source smart contract and relay system called CertiFOX. To become a FOX Member, the FOX token holder must transfer the requisite amount of FOX tokens into the CertiFOX smart contract, where they are held for intervals of approximately 30-days. Though the FOX tokens are locked during these intervals, the Member maintains ultimate control of the tokens. At no point does ShapeShift take custody of the FOX tokens.

ADDITIONAL TERMS FOR FOX MEMBERSHIP

Last Updated: September, 2018

Welcome to the additional terms and conditions for FOX Membership (“FOX Membership Terms”). These FOX Membership Terms are between you and ShapeShift AG and/or its affiliates (“ShapeShift” or “We” or “Us”) and govern our respective rights and obligations. Please note that the Fox Membership is also governed by the agreements listed and linked to below, as well as all other applicable terms, conditions, limitations, and requirements on the Websites, all of which (as changed over time) are incorporated into these FOX Membership Terms. If you sign up for a FOX Membership, you accept these terms, conditions, limitations and requirements

  • Terms of Service
  • Privacy Policy
  • Returns and Refunds Policy

All capitalized terms not defined here have the meaning given to them in the Terms of Service. Nothing in these FOX Membership Terms shall be construed to amend or contradict the Terms of Service unless explicitly stated. If there is a conflict between the Terms of Service and the FOX Membership Terms, these FOX Membership Terms control.

Membership Cancellation

FOX Memberships auto-renew every 30-day interval, until you choose not to renew. If not renewed, the FOX Membership ends after the current 30-day period, and you will receive back the same amount of FOX tokens that were committed to initiate the FOX Membership. You may withdraw FOX tokens that are not committed at any time.

Other Limitations

  • Members are prohibited from having more than one membership account. ShapeShift reserves the right to limit membership benefits associated with multiple or duplicate accounts.
  • We reserve the right to accept or refuse membership in our discretion.
  • We may send you email and other communications related to FOX Membership (regardless of any settings or preferences related to your ShapeShift account).
  • You may not transfer or assign your FOX Membership, except as allowed in these Terms.
  • From time to time, ShapeShift may choose in its sole discretion to add or remove FOX Membership benefits.

Agreement Changes

We may in our discretion change these FOX Membership Terms, the Terms of Service, Privacy Policy, Returns and Refunds Policy, or any aspect of the FOX Membership, without notice to you. If any change to these terms is found invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes or conditions. YOUR CONTINUED MEMBERSHIP AFTER WE CHANGE THESE FOX MEMBERSHIP TERMS CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES.

Regulatory determinations may make the FOX Tokens illegal in certain jurisdictions or for certain categories of investors

It is possible that current or future regulations could make ShapeShift and/or FOX Tokens illegal in some jurisdictions, or for some categories of investors, which could possibly result in a winding down of ShapeShift, or a decrease in value of ShapeShift or the FOX Tokens. Because the FOX Tokens have not been formally classified by regulatory agencies, it is possible that subsequent determinations by regulators may prevent certain individuals or entities from using or holding FOX Tokens in the future. Such a determination could materially reduce the functionality and demand for the FOX Tokens.

RETURNS AND REFUNDS POLICY

Last Updated: August, 2018

You must submit a refund address for every Transaction in the event that a refund is required in accordance with our terms below. Failure to submit a refund address at the time of a Transaction may result in your ineligibility to receive a refund.

To submit a refund request, complete and submit the form available on the ShapeShift Help Center, located here: https://shapeshift.zendesk.com/hc/en-us.

Form of Refund

If an error occurs with a User’s Transaction or interface on the User’s side of the Transaction, the “Order Status” page will indicate whether or not the failed Transaction will result in a refund of the User’s deposited asset or the outgoing asset which the User was purchasing.

In most cases, the asset sold by the User will be refunded to the User if the Order Status page indicates the Transaction failed by displaying “failed,” or the Transaction is stuck in “awaiting” “pending confirms,” or “awaiting” stages.

In most cases, the outgoing asset will be sent to the User if the Order Status indicates a successful Transaction by displaying “Done” or “Completed.”

ShapeShift will handle requests from Users on a case by case basis. Any decisions by ShapeShift with respect to the refunds or exchanges are final.

Refund Fees

All Transactions from ShapeShift to a user’s outgoing asset wallet are subject to all posted fees, including, but not limited to, incoming and outgoing miner fees, which may be deducted from any refund. A full list of all fees is available on the Website at https://info.shapeshift.io/about.

Refund Period

Users have a maximum of ninety (90) days to reclaim any assets that are held in the ShapeShift system due to any error, whether by you or us. Refund requests submitted after such period will not be refunded. Any decisions by ShapeShift with respect to refunds in these circumstances are final.

Extraction Fees

Digital assets sent to the incorrect address (e.g., GNT sent to an ETH address) will be charged an extraction fee denominated in the mis-sent asset using then-current rates. A full list of all fees is available on the Website at https://info.shapeshift.io/about. The asset extraction process may take at least ninety (90) business days. If a User wishes to expedite this process, additional charges may apply.

Unsupported Assets

Unsupported digital assets that are sent into our system to unrelated wallets cannot be extracted or returned. ShapeShift reserves the right to handle this on a case-by-case basis. Any decisions by ShapeShift with respect to such assets being sent when no longer supported are final. Additionally, if a particular coin for which a refund is requested is offline at the time of the request, no return can be processed until the coin returns online.

Minimum Refund Amounts

Transactions under the amount posted on fee schedule on the Website are too small to be refunded due to the mining fee and administrative costs. ShapeShift will not refund any assets that are worth less than the posted amount. Users are advised not to use the service for orders under this size.

User Transactions that do not confirm within forty-eight (48) hours of being detected will be cancelled. Refund requests will be provided in accordance with our Returns and Refund Policy.