Terms and Conditions
Last Update: August 29, 2024
These TERMS AND CONDITIONS (this "Agreement") are agreed to between OpenNode, Inc. a Delaware corporation (“OpenNode”, “we” or “us”) and you (“You” or “Your”) and govern Your use of and access to the OpenNode Services (as defined below). OpenNode offers its multi-layered cryptocurrency payment processing platform comprised of mobile applications and websites provided by and on behalf of OpenNode (collectively, the “Services”). As used in this Agreement, the term “Services” includes all such mobile applications and websites and all Content (as defined below). The Services allows Entities, and their employees and contractors (each, a “User”) to process cryptocurrency transactions and verify customer’s identities, as described on the Services (“Services”). Before becoming a User, and before accessing or using the Services, You are required to agree to the terms of this Agreement. Unless You and OpenNode have each signed an approved separate agreement with OpenNode regarding the Services (“Separate Agreement”), this Agreement is the complete and exclusive agreement between You and OpenNode regarding Your access to and use of the Services and supersedes any oral or written proposal, unsigned agreements or other communication between You and OpenNode regarding Your access to and use of the Services. By accepting this Agreement electronically (for example, by clicking “I Agree”), accessing or using the Services, purchasing Services, registering for an account with us, or executing this Agreement, You are accepting and agreeing to this Agreement and the policies and guidelines referenced in this Agreement. If You do not agree to this Agreement, then You may not use the Services. Further, You may not use the Services and may not accept this Agreement if You are a person barred from using or receiving the Services under the applicable laws of the United States of America or other countries including the country in which You are resident or from which You use the Services. PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING THE SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THESE TERMS, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANOTHER ORGANIZATION OR BUSINESS ENTITY OF ANY KIND (COLLECTIVELY, “ENTITY”), YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES OR CLICK THAT YOU ACCEPT OR AGREE TO THESE TERMS. THESE TERMS CONTAIN AN ARBITRATION PROVISION, WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AND PROVISIONS THAT LIMIT OPENNODE’S LIABILITY TO YOU. YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT WILL AUTOMATICALLY, WITHOUT THE REQUIREMENT OF NOTICE OR OTHER ACTION, REVOKE AND TERMINATE YOUR RIGHT TO ACCESS THE SERVICES.
1. Term
This Agreement is entered into as of the date You first accept it or use the Services (the “Effective Date”) and will continue until terminated as set forth herein. If You have a Separate Agreement with an agreed upon term, the Term of this Agreement will be subject to the term thereof.
2. Modifications to the Services
OpenNode reserves the right, at any time, to modify the Services, as well as the terms of this Agreement, whether by making those modifications available on the Services or by providing notice to You as specified in this Agreement. Any modifications will be effective upon posting to the Services or delivery of such other notice, unless otherwise required by law. You may cease using the Services or terminate this Agreement at any time if You do not agree to any modification. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Services following such notice.
3. Eligibility
The Services is intended for use by businesses and individuals 18 years of age and older. Additionally, to access and use the Services You may need to fulfill certain other legal obligations or criteria required in Your jurisdiction. OpenNode makes no representations that the Services is appropriate or available for use in all jurisdictions. Accessing any part of the Services is prohibited from any jurisdictions where access to or use of the Services is prohibited.
4. Accounts and Conduct
4.1. Account Creation and Responsibility
Before becoming a User, You must establish an account with OpenNode (an “Account”). Approval of Your request to establish an Account will be at the sole discretion of OpenNode. Each Account and the User identification and password for each Account (the “Account ID”) is for Your sole use and may only be used by You and Your authorized employees and contractors. You may not distribute or transfer Your Account or Account ID or provide a third-party with the right to access Your Account or Account ID. You are solely responsible for all use of the Services through Your Account. All transactions completed through Your Account or under yYour Account ID will be deemed to have been lawfully completed by You. You will ensure the security and confidentiality of Your Account ID and will notify OpenNode immediately, by email at , if any Account ID is lost, stolen or otherwise compromised. In connection with establishing an Account, You will be asked to submit certain information about Yourself (“Registration Information”). You agree that: (1) all Registration Information You provide will be true and complete; and (2) You will maintain and promptly update Your Registration Information to keep it accurate and current. You may not: (a) select or use an Account ID of another person with the intent to impersonate that person; and (b) use an Account ID that OpenNode, in its sole discretion, deems offensive.
4.2. Your Content
You are solely responsible for all Content you to provide, upload, submit, or post to, or generate through access to or use of the Services including by connecting or communicating with other Users (“Your Content”). You agree that You have all right, title, interest and consent in Your Content necessary to allow OpenNode to use Your Content for the purposes for which You provide Your Content to OpenNode. Your responsibility for Your Content extends to resolving any disputes that may arise between You and any User or other Entity because of Your Content. By providing, uploading, submitting, posting, or generating Your Content, you grant OpenNode and its authorized representatives and contractors a perpetual and non-exclusive right and license to use, process, store, and transmit, and disclose Your Content to (a) provide the Services and fulfill other obligations described in this Agreement; and (b) further develop and provide services for OpenNode customers. You understand that in certain contexts Your Content may be visible to, sent to, and viewed by other Users and you expressly waive any privacy rights you may otherwise have in Your Content in such contexts. You agree to allow us, if we elect in our sole discretion, to provide Your Content to other Users in connection with identity verification Services, described below.
4.3. Acceptable Use
You will not (and will not permit any third party to) use or access the Services, directly or indirectly, to: (a) upload, store or transmit any Content that is infringing, libelous, unlawful, tortious, violate privacy rights, or that includes malicious code; (b) engage in any activity that interferes with, disrupts, damages, or accesses in an unauthorized manner the Services, servers, networks, data, or other properties of ours or of our suppliers or licensors; (c) develop, distribute, or make available the Services in any way in furtherance of criminal, fraudulent, or other unlawful activity; (d) make the Services available to, or use any Services for the benefit of, anyone other than You or Your authorized representatives; (e) sell, resell, license, sublicense, distribute, rent or lease any Services; (f) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit; (g) obscure, remove, or destroy any copyright notices, proprietary markings or confidential legends; (h) build a competitive product or service; (i) distribute any Services in a manner that would disclose any of OpenNode’s source code; or (j) reverse engineer, decrypt, decompile, decode, disassemble, or otherwise attempt to obtain the human readable form of any of the OpenNode Services that were not provided to You in source code, to the extent such restriction is permitted by applicable law.
4.4. Your Conduct
You agree not to harass, advocate harassment, or to engage in any conduct that is abusive or harmful to any Entity or individual. We reserve the right, but are not obligated, to investigate and/or prohibit any conduct, or remove or refuse to post any Content (including Your Content), that we deem in our sole discretion to be unlawful, harmful, in breach of this Agreement, or otherwise offensive to You, the Services, Users, our customers, our rights, or any Entity. We assume no liability for any action or inaction with respect to Your conduct, communication, transactions, or Content. Additionally, we may disclose any Content or electronic communication of any kind: (i) to satisfy any law or request by a governmental authority; (ii) if such disclosure is necessary or appropriate to operate the Services; (iii) to protect our rights or property, our Users and customers, You, or any other Entity; or (iv) if, in our sole discretion, such Content or electronic communication should be referred to law enforcement or other government authorities.
4.5. Retention
Your Content and Account information will be retained according to OpenNode’s Privacy Policy located at https://www.opennode.com/privacy-policy (“Privacy Policy”).
5. Access
5.1. To OpenNode Services
Subject to Your compliance with this Agreement, OpenNode will permit You to access and use the Services solely for lawful non-consumer business purposes in accordance with the terms of this Agreement and any other agreement You agree to before being given access to any specific areas of the Services. OpenNode requires You to enable Bitcoin acceptance through the platform and select if You are interested in accepting debit cards and/or secure bank transfers as well. The terms of any Separate Agreement will be added in addition to the terms of this Agreement and will also govern Your use of the portions of the Services to which the Separate Agreement may apply. In the event of a conflict between the terms of this Agreement and the Separate Agreement, the terms of the Separate Agreement will prevail.
5.2. To Content
Unless otherwise noted on the Services, other than Your Content, all Content available through the Services (“Services Content” or “Content”) is owned by OpenNode, the Users providing that Content, or OpenNode’s other Content providers. All Services Content is for informational purposes only and You are solely responsible for verifying the accuracy, completeness, and applicability of all Services Content as it may apply to Your use of such Services Content. Subject to Your compliance with this Agreement, You may access the Services Content solely for Your own internal business purposes in connection with Your own use of the Services. You will not, and will not permit any third-party to: (a) alter, modify, reproduce, or create derivative works of any Services Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Services Content; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Services Content. OpenNode has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Services Content. Without limiting the foregoing, OpenNode will not be held liable to You or any other third-party for any Services Content (or any other Content, including Your Content) under any law, including the Communications Decency Act or CDA, 47 U.S.C. § 230. Except as set forth in this Agreement. You are granted no licenses or rights in or to any Services Content, or any IPR (as defined below) therein or related thereto.
5.3. To Third-Party Sites and Services
The Services may contain links to third-party sites that are not under the control of OpenNode. Unless otherwise noted, any other site accessed from the Services is independent from OpenNode, and OpenNode has no control over and is not responsible for its content. Links to third-party websites are provided for Your convenience only and You may access them solely at Your own risk. You acknowledge and agree that OpenNode shall not be liable or responsible, directly or indirectly, for any damage or loss caused or alleged to be caused by or related to the use of or reliance on any content, goods, or services available through any third-party website or resource. Your access and use of the third-party sites are governed by the terms of use and privacy policies of these third-party sites.
5.4. To Third-Party Services
The Services may also provide You with the option, and use of certain Services features and may require You, to obtain access to services, content, functionality, software and other things developed, provided, or maintained by third party service providers, including without limitation OTC trading desks (collectively, “Third- Party Services”). All Third-Party Services are provided by third parties and are not under the control of OpenNode. You acknowledge and agree that OpenNode shall not be liable or responsible, directly or indirectly, for Your access to or use of any Third-Party Services, including any damages, losses, liabilities, failures, or problems caused by, related to, or arising from any Third-Party Services. Your use of and access to any Third-Party Services is solely between You and the third party provider of the Third-Party Services. Your access to and use of any Third-Party Services is subject to any additional terms, conditions, agreements, or privacy policies provided or entered into in connection with the Third-Party Services (each, a “Third-Party Agreement”). The terms of any Third-Party Agreement (which may include payment of additional fees) will apply to the applicable Third-Party Services provided under that Third-Party Agreement but will not otherwise apply to Your access to or use of the Services. Except as set forth in this Agreement, in the event of a conflict between the terms of this Agreement and a Third-Party Agreement, the terms of the Third-Party Agreement will control with respect to Your access to and use of any Third-Party Services provided under that Third-Party Agreement. This Agreement will continue to control in all other respects.
5.4.1. Exchange and Banking Capabilities
The Services may provide Users access to exchange and banking capabilities enabled through a third-party partners. Users of exchange and banking capabilities are bound by the terms of service of such third parties. Exchange and banking capabilities are currently provided by:
Fortress Trust: https://fortresstrust.com/terms-of-use
Secure Digital Markets: https://www.sdm.co/terms-and-conditions
OpenNode is not an exchange or payment service provider and does not provide any exchange or payment services related to fiat currency funds.
6. Services
6.1. Transactions
You undertake all transactions through the Services solely at Your own risk. You will only communicate regarding a contemplated transaction via the Services’s chat functionality. For each transaction, You bear sole responsibility for confirming (a) Your customer’s identity and payment information, (b) Your receipt of payment in full, and (c) that payment was made according to the instructions given through Services. You represent, warrant and covenant that You will not make, provide, receive or attempt to make, provide, or receive payments from or to any person or Entity that is (x) a third-party, other than Your customer or (y) currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department. After You have approved a transaction, it is not possible to cancel, reverse, dispute or otherwise recover or return Your assets. Once a transaction has been initiated, OpenNode has no control over the transaction and the transaction can only be accepted by confirmation via the underlying blockchain network. You assume sole responsibility for such confirmation and acknowledge that OpenNode assumes no liability with respect thereto. You must notify OpenNode of any payment transaction discrepancies within 180 days from the date the original transaction was initiated.
6.2. Identity Verification
OpenNode is required to obtain, verify and record information that identifies each Business and Individual Client that opens an account on our platform, as part of a Customer Identification Program (CIP), in accordance with section 326 of the USA Patriot Act. Promptly following OpenNode’s request, You will provide OpenNode any and all Content, including Your full name and any documents or photographs, necessary for OpenNode to verify Your identity. You hereby represent, warrant and covenant that such Content is accurate, current and complete. OpenNode reserves the right to freeze Your Account until Your identity has been verified pursuant to this Section and to terminate Your Account should You fail to comply with Your obligations under this Section. You (and, if acting in a representative capacity, individually and for the Entity You represent) authorize OpenNode and its agents to make such investigative inquiries and request any third-party reports as it deems necessary to verify Your identity and that of Your principals and other agents.
7. Fees
You will pay OpenNode all fees required for access and use of the Services (“Fees”) as set forth in the following fee schedule: https://opennode.com/pricing or as agreed to in an Separate Agreement. The Fees may be subject to change without notice, at any time and You are responsible for checking applicable Fees prior to transacting. You hereby grant OpenNode the right to charge or deduct funds from the flow of funds our software and services make possible. All Fees will be non-refundable once paid to OpenNode (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1.5% per month or the maximum amount permitted under applicable law. If OpenNode requires use of collection agencies, attorneys, or courts of law for collection of Your account, You will be responsible for those expenses. You will be responsible for any and all use, sales, and other taxes imposed on your access to and use of the Services.
8. Termination
This Agreement may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under this Agreement. Upon termination of this Agreement for any reason: (1) all rights granted to You under this Agreement will terminate; (2) You will immediately cease all use of and access to the Services, including Your Content and any Services Content You obtained prior to termination; and (3) OpenNode may, in its sole discretion, delete Your Account or Your Content at any time. Your Content may continue to exist and be visible to Users after termination of this Agreement unless You actively delete it or contact OpenNode support and request deletion. If you have cryptocurrency assets linked to Your Account, You shall provide OpenNode a valid bank account number promptly following termination. Within a reasonable time after receiving Your bank account number, OpenNode will convert your cryptocurrency holdings into fiat currency and deposit the same in Your designated bank account, less any applicable transaction fees incurred. OpenNode may request, and You shall provide, reasonable proof of ownership of such bank account prior to OpenNode completing the deposit. Sections 7 (Fees), 8 (Termination), 10 (Services Technology), 11 (Ownership), 12 (Feedback), 14 (Representations and Warranties), 15 (Disclaimers), 16 (Indemnity), 17 (Limitation on Liability), 18 (Data Privacy), 19 (TCPA Consent), 20 (Claims of Infringement), 21 (Force Majeure), 22 (Arbitration), 23 (Class Action Waiver), 24 (Governing Law and Venue), 25 (Notices), 26 (Interpretation) and 27 (Additional Terms) will survive any expiration or termination of this Agreement.
9. Suspension
Without limiting OpenNode’s right to terminate this Agreement, OpenNode may also suspend Your access to Your Account and the Services (including Your Content), with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or applicable law or upon any other conduct deemed by OpenNode to be inappropriate or detrimental to OpenNode, the Services, or any other OpenNode customer or User.
10. Services Technology
The Services, and the databases, software, hardware and other technology used by or on behalf of OpenNode to perform the Services, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), constitute valuable trade secrets of OpenNode. You will not, and will not permit any third-party to: (1) access or attempt to access the Technology except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third-party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance or functionality of the Technology; or (9) interfere with the operation or hosting of the Technology. OpenNode uses reasonable means to protect the security of the Services, but You acknowledge that perfect security on the internet is impossible and that, as a result, Your Content may be exposed in the event of a breach.
11. Ownership
OpenNode retains all rights, title and interest, including, without limitation, all IPR (as defined below), in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your ability to access the Services under this Agreement. The OpenNode name, logo and all product and service names associated with the Services are trademarks of OpenNode and its licensors and providers and You are granted no right or license to use them. For purposes of this Agreement, “IPR” means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
12. Feedback
You agree that any feedback or ideas You provide to OpenNode regarding the Services or their underlying Technology or any suggested improvements thereto (together, the “Feedback”) will be the exclusive property of OpenNode. To the extent You own any rights in the Feedback, You hereby agree to, and hereby do, assign all right, title and interest in and to the Feedback to OpenNode. You agree to perform all acts reasonably requested by OpenNode to perfect and enforce such rights.
13. Availability
OpenNode will use reasonable efforts to ensure that the Services can be accessed by You in accordance with this Agreement; however, OpenNode does not guarantee that the Services will be available at all times. OpenNode will make reasonable efforts to give You notice of planned maintenance. You accept the risks associated with the fact that You may not always be able to use the Services or carry out transactions using Your Account.
14. Representations and Warranties.
14.1. General
You hereby represent and warrant to OpenNode that: (a) You have the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on Your behalf; and (c) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement.
14.2. Compliance with Laws
You acknowledge that the Services are a general-purpose online service and are not specifically designed to facilitate compliance with any specific law. Your use of the Services in compliance with any specific law, rule, or regulation applicable to You, or other data or information You may provide or generate through the Services is Your sole responsibility. OpenNode is not responsible for enabling Your compliance with any such law or for Your failure to comply. Regardless of the jurisdiction in which You use or access the Services, You represent and warrant to OpenNode that Your use of and access to the Services, including, without limitation, Your Content and any other data or information You may provide or generate through Your use of or access to the Services, will comply with all applicable laws, rules, and regulations and will not cause OpenNode itself to violate any applicable law. The foregoing obligation includes compliance with all laws that are applicable to the transmission of data on the internet, including, but not limited to, laws governing the transmission of data or funds across international boundaries, into prohibited countries, and containing financial, technical, and/or personally identifiable information.
14.3. Prohibited businesses
By registering with OpenNode, You are confirming that You will not use the Service to initiate transactionsin connection with the following businesses, business activities, or business practices..
Financial and professional services
| Category | Description |
|---|---|
| Money and legal services | Money transmitters and money services businesses, check cashing, wire transfers, money orders; bill-pay services; crowdfunding; insurance; bail bonds; collections agencies; law firms collecting funds for any purpose other than to pay fees owed to the firm for services provided by the firm (e.g., firms cannot use OpenNode to hold client funds, collection or settlement amounts, disputed funds, etc.) |
IP Infringement, regulated or illegal products and services
| Category | Description |
|---|---|
| Intellectual property or proprietary rights infringement | Sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; any product or service that directly infringes or facilitates infringement upon the trademark, patent, copyright, trade secrets, or proprietary or privacy rights of any third party. |
| Counterfeit or unauthorized goods | Counterfeit goods, aka “Replica”; unauthorized sale or resale of brand name or designer products or services; sale of goods or services that are illegally imported or exported |
| Illegal Gambling | Lotteries; bidding fee auctions; sports forecasting or odds making for a monetary or material prize; fantasy sports leagues with cash prizes; internet gaming; contests; sweepstakes; illegal forms of gambling, internet gambling, sweepstakes, and contests with a buy-in or cash prize; charity sweepstakes and raffles for the explicit purpose of fundraising |
Unfair, predatory, or deceptive practices
| Category | Description |
|---|---|
| Get rich quick schemes | Investment opportunities or other services that promise high rewards |
| Mug shot publication or pay-to-remove sites | Services that facilitate the publication and removal of content (such as mug shots), where the primary purpose of posting such content is to cause or raise concerns of reputational harm |
| No-value-added services | Sale or resale of a service without added benefit to the buyer; resale of government offerings without authorization or added value; sites that we determine in our sole discretion to be unfair, deceptive, or predatory towards consumers |
Products or services that are otherwise restricted by our financial partners
| Category | Description |
|---|---|
| Aggregation | Engaging in any form of licensed or unlicensed aggregation of funds owed to third parties, factoring, or other activities intended to obfuscate the origin of funds; payment facilitation |
| Drug paraphernalia | Any equipment designed for making or using drugs, such as bongs and vaporizers. |
| High risk businesses | Bankruptcy lawyers; remote technical support; psychic services; essay mills; chain letters; door-to-door sales; medical benefit packages; telemedicine and telehealth services; travel reservation services and clubs; airlines; cruises; timeshares; circumvention, jamming and interference devices; prepaid phone cards, phone services; telemarketing, offering substantial rebates or special incentives as an inducement to purchase products or services; telecommunications manipulation equipment; forwarding brokers; negative response marketing; subscriptions over one year; extended warranties; government grants; embassy, foreign consulate, or other foreign governments; charities without proper registration; credit card and identity theft protection; the use of credit to pay for lending services; any businesses that we believe poses elevated financial risk, legal liability, or violates card network or bank policies; any business or organization that a. engages in, encourages, promotes or celebrates unlawful violence or physical harm to persons or property, or b. engages in, encourages, promotes or celebrates unlawful violence toward any group based on race, religion, disability, gender, sexual orientation, national origin, or any other immutable characteristic |
| Multi-level marketing | Pyramid schemes and multi-level marketing |
| Pseudo pharmaceuticals | Nutraceuticals, pseudo-pharmaceuticals, and other products that make false health claims that have not been approved or verified by the applicable local and/or national regulatory body |
| Social media activity | Sale of Twitter followers, Facebook likes, YouTube views, and other forms of social media activity and online traffic |
| Substances designed to mimic illegal drugs | Sale of a legal substance that provides the same effect as an illegal drug (e.g., salvia, spice…) |
15. Disclaimers
15.1. No Tax, Legal, Financial, or Investment Advice
You should not interpret any Content provided concerning the Services as tax, legal, financial, or investment advice. OpenNode has no special relationship with or fiduciary duty to You and Your use of the Services does not create such a relationship. You agree and acknowledge that You are solely responsible for conducting legal, accounting and other due diligence review on the information posted concerning the Services.
15.2. No Price Guarantee; Volatility
You understand that OpenNode is not liable for price fluctuations in Bitcoin. By entering into this Agreement, You acknowledge and agree that: (a) OpenNode is not responsible for the operation of any Bitcoin underlying protocols, and OpenNode makes no guarantee of their functionality, security, or availability; (b) Bitcoin underlying protocols are subject to sudden changes in operating rules (a/k/a forks), and such forks may materially affect the value and function of the Bitcoin; and (c) OpenNode does not own or control the underlying software protocols which govern the operation of any Bitcoin. You acknowledge that OpenNode shall have no responsibility or liability for: (a) events or circumstances beyond Your reasonable control, including, without limitation, the interruption, suspension or restriction of trading on or the closure of any Bitcoin market or system, power or other mechanical or technological failures or interruptions, computer viruses or communications disruptions, work stoppages, natural disasters, acts of war, revolution, riots or terrorism or other similar force majeure events, in each case to the extent beyond the reasonable control of OpenNode; (b) any error by You; (c) the insolvency of, or acts or omissions by a Bitcoin trading platform; (d) any error, or any loss, destruction, corruption or other inability to use or transfer the Bitcoin caused by the applicable blockchain or any other technology used to implement or operate any Bitcoin, or other circumstances beyond the reasonable control of OpenNode; (e) any delay or failure of any Bitcoin issuer, the developer or operator of any technology used to implement or operate any Bitcoin, or any broker, agent, intermediary, bank or other commercially prevalent Bitcoin payment or clearing system to provide any information or services required in order to enable OpenNode’s performance hereunder; and (f) the effect of any provision of any law or regulation or order of the United States of America, or any state thereof, or any other country, or political subdivision thereof or of any court of competent jurisdiction.
15.3. Transaction Disputes
OpenNode’s only involvement in digital transactions using the Services is as a software services provider. If a disagreement occurs between You and a User or customer over a transaction (a “Transaction Dispute”), You and that User or customer are solely responsible for resolving the Transaction Dispute. OpenNode disclaims any liability arising out of or relating to a Transaction Dispute and will not mediate, attempt to resolve, or otherwise become involved in any Transaction Dispute.
15.4. Legal Processes Affecting Your Account; Discontinuation of Services.
Notwithstanding anything herein to the contrary, OpenNode reserves the right to refuse to accept any potential User whose business is determined in OpenNode’s sole discretion to pose a compliance, regulatory or legal risk to OpenNode or any third party service provider.
OpenNode has the right to immediately suspend Your access to your account. You agree and understand that Your account may be subject to freezing, forfeiture to, or seizure by a law enforcement agency and/or subject to any similar limitation on its use, may be wholly and permanently unrecoverable and unusable.
If any legal action such as a seizure or enforcement action by any competent authority in any jurisdiction is brought against or in connection with Your account, OpenNode may refuse to permit withdrawals or transfers from Your account until the legal process is resolved. OpenNode will not contest any legal process on your behalf, and may take actions to comply with the legal process without liability to You, provided that OpenNode reasonably believes any such action is appropriate under the circumstances.
OpenNode may, in its sole discretion and without cost to You, with or without prior notice and at any time, modify or discontinue, temporarily or permanently, any portion of the Services.
15.5. General
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” OPENNODE AND ITS PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, AVAILABILITY, ADEQUACY OR CURRENCY OF ANY SERVICES OR CONTENT AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED OR PROVIDED THROUGH THE SERVICES. OPENNODE AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SERVICES AND THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. OPENNODE DOES NOT WARRANT THE RELIABILITY, ACCURACY, INTEGRITY, SECURITY, COMPLETENESS, ADEQUACY OR CURRENCY OF THE SERVICES, AND DOES NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED OR PROVIDED BY USERS OF THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OPENNODE OR ITS EMPLOYEES, PROVIDERS OR AGENTS SHALL CREATE A WARRANTY OF ANY KIND. OPENNODE SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR OPERATE UNINTERRUPTED OR ERROR FREE.
16. Indemnity
16.1 General Indemnity
You hereby agree to indemnify, defend, and hold harmless OpenNode and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, Users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) (collectively, “Losses”) that result from any claim or allegation against any Indemnified Party arising in any manner from: (1) Your access to or use of the Services, including any data provided via the Services; (2) Your Content or Account information or other Content You provide through the Services; (3) Your Content; (4) a dispute between You and any end-user or customer of Yours; 5) a security breach of Your computers or systems; (6) the unauthorized use, access or disclosure of confidential or personal information, private keys, or authentication credentials held by You or Your computers or systems; or (7) Your breach of any representation, warranty, or other provision of this Agreement. OpenNode will provide You with notice of any such claim or allegation, and OpenNode will have the right to participate in the defense of any such claim at its expense.
16.2 Affiliates
If You permit Your Affiliates, subsidiaries, employees, or any third party to access or use the Services, You shall be solely responsible for (i) their acts or omissions in connection with their access to or use of the Services and (ii) ensuring that their access or use of the Services is in compliance with the Agreement, and any and all applicable local laws, rules and regulations. You agree to fully indemnify, defend and hold OpenNode and all other Indemnified Parties harmless for any and all Losses incurred by any such Indemnified Parties arising from acts of Your Affiliates, subsidiaries, employees or any third parties.
16.3 Procedure
For any indemnifiable Claim described in this Section 16, the indemnifying party shall have the sole responsibility, at its expense, to defend and, at its sole discretion, to settle any such Claim, provided that: (i) the settlement unconditionally releases the indemnified party of all liability; (ii) if any settlement requires a non-monetary obligation of an indemnified party (other than You ceasing use of the Services), then such settlement shall require the indemnified party’s prior written consent, which consent will not be unreasonably withheld; (iii) the indemnified party shall have the right to participate at its own expense in the defense of such Claim, including any related settlement negotiations; (iv) further, notwithstanding anything to the contrary in this Section 16, the indemnified party is not obligated to tender the defense of any Claim to the indemnifying party if the Claim is brought by a government regulator, government investigator, or other governmental authority. If any compromise or settlement is made with respect to such Claim in conformance with this Section 16.3, the indemnifying party shall pay all amounts in settlement of such Claim. The indemnified party shall provide the indemnifying party with such information and assistance for the defense of such Claim as the indemnifying party reasonably requests. The party seeking indemnification will provide the indemnifying party with prompt written notice of any Claim, however, failure to provide such notice promptly will not relieve the indemnifying party from any obligation or liability under this Section 16 with respect to such Claim, except to the extent the indemnifying party is prejudiced by such failure.
17. Limitation on Liability
OPENNODE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE SERVICES, EVEN IF OPENNODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. OPENNODE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ITS PROVISION OF THE SERVICES UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES YOU ACTUALLY PAID TO OPENNODE FOR USE OF AND ACCESS TO THE SERVICES IN THE PRECEDING TWELVE MONTHS. YOU AGREE THAT OPENNODE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, OPENNODE’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
18. Data Privacy
You expressly consent to the use and disclosure of Your personally identifiable information and Your Content as described in the Privacy Policy. Notwithstanding anything in the Privacy Policy, OpenNode will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information resulting from Your access to and use of the Services. To the extent any such non-personally identifiable data or information is collected or generated by OpenNode, the data and information will be solely owned by OpenNode and may be used by OpenNode for any lawful business purpose without a duty of accounting to You, provided that the data and information is used only in an aggregated form, without directly identifying You or any other entity or natural person as the source thereof.
19. TCPA Consent
Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from OpenNode or anyone calling on our behalf, You expressly consent to be contacted by OpenNode and anyone calling on our behalf for any and all purposes arising out of or relating this Agreement or Your use of the System or Services, at any telephone number, or physical or electronic address You provide or at which You may be reached. You agree that OpenNode may contact You in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using an auto-telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by You or someone else. In the event that an agent or representative calls, he or she may also leave a message on Your answering machine, voice mail, or send one via text. You consent to receive SMS messages (including text messages), calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) You have provided to us, or numbers we can reasonably associate with Your Account (through skip trace, caller ID capture or other means), with information or questions about Your Account or use of the System or Services. You certify, warrant and represent that the telephone numbers that You have provided to us are Your contact numbers. You represent that You are permitted to receive calls at each of the telephone numbers You have provided to us and agree to promptly alert us whenever You stop using a particular telephone number. Your cellular or mobile telephone provider will charge You according to the type of plan You carry. You also agree that we may contact You by e-mail, using any email address You have provided to us or that You provide to us in the future. We may listen to and/or record phone calls between You and our representatives without notice to You as permitted by applicable law and for quality monitoring purposes.
20. Claims of Infringement
OpenNode respects Your copyrights and other intellectual property rights and those of other third parties. If You believe in good faith that Your copyrighted work has been reproduced in Services without Your authorization in a way that constitutes copyright infringement, You may notify us or our designated copyright agent by mail to: 925 N La Brea Avenue, #457, Los Angeles, CA 90038 Attention: Legal Department Please include the following information in Your correspondence: (1) the identity of the infringed work, and of the allegedly infringing work; (2) Your name, address, daytime phone number, and email address, if available; (3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and (5) Your electronic or physical signature.
21. Force Majeure
Neither party will be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including, without limitation, acts of God or any governmental body (including regulation, enforcement, controls or restrictions on cryptocurrency, blockchain, the System or the Service), war or national emergency, riots or insurrection, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power or telecommunications under third-party control.
22. Arbitration
Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the rules of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by OpenNode in Los Angeles, California, U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. Notwithstanding the foregoing, You agree that the following matters shall not, at the election of OpenNode, be subject to binding arbitration: (a) any dispute concerning OpenNode’s or its suppliers or service providers’ IPR; (b) any dispute related to or arising from allegations of criminal activity; or (c) any claim for injunctive relief.
23. Class Action Waiver
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION SHALL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND OPENNODE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
24. Governing Law and Venue
The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California, U.S.A. as such laws apply to contracts between California residents performed entirely within California without regard to the conflict of laws provisions thereof. Subject to Section 21, each party hereto: (a) consents to and waives any objections to personal jurisdiction, service of process, and venue in the federal and state courts located in Los Angeles, California; and (b) agrees that any action arising out of or relating to this Agreement will be filed and prosecuted only in such courts.
25. Notices
Unless otherwise specified in this Agreement, all notices hereunder shall be in writing and shall be effectively given upon: (i) personal delivery, (ii) delivery of certified or registered mail, or by courier service, (iii) the first business day after sending by email. Notices shall be deemed to have been given, delivered and received upon receipt or attempted delivery (if receipt is refused), as the case may be, and the date of delivery identified by the applicable postal service on any return receipt card or confirmation by courier service, even if such delivery was refused. Notices to You will be addressed using the contact information You provided to us in connection with Your account. Notices to us will be addressed to us at the following address: OpenNode Inc. Attention: 925 N La Brea Avenue, #457, Los Angeles, CA 90038; legal@opennode.com. Either party may update their contact information for notice purposes by giving the other party appropriate notice under this Section 25.
26. Interpretation
Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States. To the extent any translated version of this Agreement conflicts with the English language version, the English language version will control. When interpreting this Agreement: (1) any headings are for reference purposes only and shall not be used in the construction and interpretation of this Agreement; (2) the singular includes the plural, and vice versa; (2) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation; (3) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement; (4) "law" means any foreign, federal, state or local law (including common law), statute, standard, code, ordinance, rule, regulation, promulgation or any order by any governmental authority; and (5) "governmental authority" means any government or governmental or regulatory body thereof, or political subdivision thereof, whether federal, state, local or foreign, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private).
27. Additional Terms
This Agreement, together with any Separate Agreement, constitutes the complete and exclusive agreement between You and OpenNode regarding Your access to and use of the Services. Other than any Separate Agreement as may be executed by the parties regarding OpenNode’s Services, this Agreement supersedes any prior agreement or proposal, oral or written, and any other communications between You and OpenNode relating to Your use of the Services. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers by OpenNode under this Agreement must be in writing or later acknowledged by OpenNode in writing. Any waiver or failure by OpenNode to enforce any provision of this Agreement on one occasion will not be deemed a waiver by OpenNode of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. You may not assign or transfer either this Agreement or any of Your rights or obligations hereunder (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of OpenNode. Any assignment in violation of the foregoing will be null and void. OpenNode may assign this Agreement to any party that assumes OpenNode’s obligations hereunder. The parties hereto are independent contractors, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.
