Please read the terms and conditions that follow (this “Agreement”) carefully as they form a contract between you, the person or legal entity identified as the customer on our registration page(“You” or “your”), and BitGo, Inc. (“BitGo”, “we”, “our” or “us”). This Agreement governs your access to and use of our Services. “Services” refers individually and collectively to the BitGo website, BitGo platform, APIs, mobile applications, and any software services provided by BitGo, as well as all written or electronic materials including software, data, text, audio, video, images, photos, graphics, or other content (“Content”).
By accepting this Agreement electronically (for example, clicking “I Agree”), accessing or using the Services, purchasing Services, registering for an account with us, executing this Agreement, or accepting an Order that references 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 (a) you are not of legal age to form a binding contract with BitGo, or (b) 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.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, RATHER THAN JURY TRIALS OR RESOLUTION BY CLASS ACTION, AS FURTHER DESCRIBED IN SECTION 13.
Section 15.8 defines capitalized terms that are not defined elsewhere in this Agreement.
1.1 Subscriptions. Services are purchased as subscriptions and in accordance with the fees stated in the Order for those Services. Services include BitGo Enterprise and BitGo Platform API, and we may introduce new Services or discontinue old Services from time to time.
1.2 Usage Limits. Services are subject to usage limits. If you exceed a contractual usage limit, we may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding our efforts, you are unable or unwilling to abide by a contractual usage limit, you will order additional quantities of the applicable Services promptly upon our request, or pay any invoice for excess usage.
1.3 Acceptable Use. You will not (and will not permit any third party to) use or access the Services, directly or indirectly via the Developer Application, 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 Developer Application 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 end users of the Developer Application; (e) sell, resell, license, sublicense, distribute, rent or lease any Services, or include any Services in a Services bureau or outsourcing offering; (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) to build a competitive product or service; (i) distribute the Developer Application in source code form in a manner that would disclose the source code of BitGo Technology, unless BitGo provides such BitGo Technology to you in source code format as Open Source Components (as defined below); or (j) reverse engineer, decrypt, decompile, decode, disassemble, or otherwise attempt to obtain the human readable form of any of the BitGo Technology that was not provided to you in source code, to the extent such restriction is permitted by applicable law.
1.4 Registration. The information that you provide at the time of account opening must be accurate and complete, and you must inform us in a timely fashion of any changes to such information. We may require additional information about you. We may reject your account registration, or later close your account if we determine that you have not provided us with accurate, complete and satisfactory information.
1.5 Account Credentials. Account Credentials. You will prevent unauthorized access to or use of the Services using your account credentials or authentication devices (e.g. Google authenticator), and notify us promptly of any such unauthorized access or use.
1.6 Private Keys. You are solely responsible for the private keys that we provide to you or that you generate for your wallets. You agree to maintain secure backups of all your private keys and any passwords you use to encrypt them. You will prevent unauthorized access to or use of the Services using your private keys, and you will notify us promptly of any unauthorized access or use. You will notify us of any security breach of your system, network or Developer Application as soon as possible to apprise us of such event. You will cooperate with us in the investigation of any suspected unauthorized access to or use of the Services using your account credentials or private keys, and any security breach of your system, network or Developer Application, and provide us with the results of any third-party forensic investigation that you undertake.
1.7 Responsibility for Your Content and End Users. You are solely responsible and have sole liability for end users access and use of the Services, either directly or via the Developer Application, and the accuracy, quality and legality of your Content and End User Data and the means by which you acquired your Content and End User Data and each end user’s access, use, distribution or storage of End User Data. You will comply with, and ensure that your end users comply with, all applicable local, state, national or international laws and regulations, and policies of regulatory bodies or agencies.
1.9 Risks. You acknowledge that using Digital Assets, their networks and protocols, involves serious risks. It is your duty to learn about all the risks involved with Digital Assets, their protocols and networks. There are many, and describing these risks could fill chapters of a book. For example, the value of Digital Assets can change rapidly, increase or decrease unexpectedly, and potentially even fall to zero. As another example, a bitcoin transaction may be unconfirmed for a period of time (usually less than one hour, but up to one day or longer) and may be never complete if it remains in a pending state. Even if BitGo alerts you to some of the risks involved with Digital Assets, their protocols and networks, BitGo has no responsibility to alert you to all these risks. BitGo has no control over, and makes no representations regarding the value of Digital Assets, or the security of their networks or protocols.
2.1 Guidelines. We may require developers to comply with developer guidelines that we may post, and update from time to time, including these for Security Best Practices found here.
2.2 Developer Approval. Based on the information you provide us at account opening, we will determine in our sole discretion whether to provide you access to the BitGo Platform API.
2.3 Reliability Monitoring. The BitGo Platform API is designed to help you enhance and secure your Developer Applications. You agree that BitGo may monitor the use of the BitGo Platform API to ensure quality, improve our products and services, observe and troubleshoot your use of the BitGo Platform API, and verify your compliance with the provisions of this Agreement. This monitoring may include us accessing and using your Developer Application, for example to identify security issues that could affect our Services or our users. You will not interfere with this monitoring. We may use any technical means to overcome such interference. We may suspend access to the BitGo Platform API by you or your Developer Application without notice if we reasonably believe that you are in violation of this Agreement. You will allow us to check the configuration and settings associated with the BitGo Platform API and with securing your Developer Applications. We may suspend the Service (or any portion of the Service) for wallets that we deem insufficiently secured by you.
2.4 Removal of Content and Developer Applications. If we are required by a licensor to remove Content, or receive information that Content provided to you may violate applicable law or third-party rights, we may so notify you and in such event you will promptly remove such Content from your systems. If we receive information that a Developer Application may violate our developer guidelines or applicable law or third-party rights, we may so notify you and in such event you will promptly disable such Developer Application or modify the Developer Application to resolve the potential violation. If you do not take required action in accordance with the above, we may suspend or disable the Services until the potential violation is resolved.
3.1 Provision of Services. For subscriptions ordered with recurring monthly fees, BitGo will use commercially reasonable efforts: (a) to make the BitGo Platform API available to you under the terms of our Service Level Agreement found here; (b) to make BitGo Enterprise wallet(s) under your account available to you via the internet 24 hours a day, 7 days a week; (c) to provide you with any other Services that you ordered; and (d) provide our standard support to you at no additional charge, or the upgraded support if you purchased such upgraded support. All Services we offer that do not require recurring monthly fees are provided on an “as-is” and as-available basis. Further, BitGo will have no liability (and you will have will have no remedy) arising from any Exclusions.
3.2 Services Limitations. BitGo sets and enforces limits on your use of the Services in our sole discretion. You agree to, and will not attempt to circumvent, such limitations documented. If you would like to use the Services beyond these limits, you must obtain our express consent (and we may decline such request or condition acceptance on your agreement to additional terms or charges for that use). Further, BitGo may delay signing any transaction it deems to be suspicious or possibly the result of a security breach. BitGo makes no promises or guarantees regarding the time it will take BitGo to sign such transactions, and BitGo will not have any liability for delay or refusal to sign such transactions.
3.4 Insurance. You are solely responsible for to maintain insurance policies for your Digital Assets. You acknowledge and agree that BitGo does NOT make any promises or warranties (a) with respect to insurance policies carried by BitGo or (b) that you will be able to make any claims against any insurance policies carried by BitGo.
3.5 Digital Asset Protocols. BitGo does not own or control the underlying software protocols which govern the operation of Digital Currencies. Digital Asset protocols are subject to changes in protocol rules (referred to as “forks”), and that such forks may materially affect the value, function, or name of the Digital Asset. You acknowledge and agree (i) that BitGo is not responsible for operation of the underlying Digital Asset protocols and that BitGo makes no guarantee of their functionality, security, or availability; and (ii) if a fork occurs, BitGo may temporarily suspend the Services relating to the Digital Asset affected, and BitGo may configure or reconfigure its Services or decide not to support the forked protocol entirely, but allow you to transfer the affected Digital Asset.
3.6 Support for Tokens. As of the date when we updated this Services Agreement, BitGo does not support ERC-20 tokens or other tokens, metacoins, colored coins, side chains, or coins which enhance or interoperate with Ether, XRP, or Litecoin (collectively, “Tokens”). Until BitGo notifies you and the general public that BitGo supports a particular Token, you must not use your account, wallet, or any of the Services in any manner whatsoever for such Token. This means, in particular and without limitation, you should not attempt to receive, request, send, store, or engage in any other type of transaction involving any such Token. BITGO WILL HAVE NO RESPONSIBILITY OR LIABILITY IF YOU LOSE, BURN, OR OTHERWISE CANNOT ACCESS OR CONTROL ANY TOKEN THAT BITGO DOES NOT SUPPORT.
3.7 Unclaimed Property. If we are unable to contact you and we have no record of your use of the Service for several years, applicable law may require us to report the Digital Currencies associated with your account as unclaimed property. If this occurs, if we are unable to locate you using the contact information show in our records, we may be required to deliver any such Digital Currencies to the applicable state as unclaimed property. We reserves the right to deduct a dormancy fee or other administrative charges from such unclaimed Digital Currencies, as permitted by applicable law.
3.8 Reversals; Cancellations. Digital Asset associated with pending transactions will not be included in your account balance or be available for different transactions. You cannot cancel, reverse, or change any transaction marked as complete or pending. BitGo reserves the right to refuse to allow you to execute a transaction using the Service that we suspect involves (or has a high risk of involvement in) money laundering, terrorist financing, fraud, or any other type of financial crime.
3.9 BitGo Instant. BitGo provides BitGo Instant as a Service to certain of its customers that order it. If you wish to receive Bitcoin with the benefit of BitGo Instant, you will need to enter into BitGo’s separate written agreement for that benefit. Otherwise, you may not rely a Bitcoin transmission as verified by BitGo Instant, and BitGo does not make any guaranty, warranty, or other promise to you about double-spending.
4.1 Fees. You will pay all fees for Services. Payment obligations are non-cancelable and fees paid are non-refundable. Quantities or levels purchased cannot be decreased during the relevant subscription term. You will provide us with complete and accurate billing and contact information and notify us of any changes to such information.
4.2 Network Fees. BitGo’s recurring fees quoted in an Order do not include fees or deductions that may be incurred by the operation of the network protocol associated with its Digital Asset. Such fees can be substantial. For example, the Bitcoin network requires transaction fees to be paid to miners, and the Ethereum network requires fees for transactions, and for the creation of each wallet. These fees may change at any time and are outside of our control. It is your sole responsibility to know and understand such network-related fees and deductions. You are solely responsible for paying all such network fees. You agree to reimburse BitGo for all such fees shown on your monthly statement. When BitGo becomes able to do so, you agree that BitGo may deduct such fees or deductions directly from your wallet balances or transaction amounts.
4.3 Free Trials. BitGo may offer you Services for a limited period on a trial basis for free. BitGo will not charge you for such Services until the end of the trial period or the start date of the subscription ordered by you for such Services, whichever occurs first. If the trial period is not explicit, then we may terminate such free Services at any time without notice.
4.4 Overdue Fees. If any amount owed by you is not received by us by the due date, without limiting our rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; or (b) we may condition future subscription renewals and orders on different payment terms. If any amount owed by you overdue by thirty (30) days or more, without limiting our rights or remedies: (x) we may suspend or terminate the Services for which payment is overdue, and may suspend any or all Services provided to you; or (y) we may accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable. Such accelerated fees will not be deemed a penalty, but a figure reasonably calculated to reflect discounts given by us in return for your term commitment. We will give you at least ten (10) days prior notice that your account is overdue before suspending or terminating Services to you. We will not exercise our rights under subsection (x) or (y) above if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.5 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for Taxes assessable against us based on our income, property and employees (“BitGo Taxes”). If applicable law requires you to withhold BitGo Taxes from your payment(s) to BitGo, you will provide reasonable assistance to BitGo in connection with such BitGo Taxes by: (a) promptly providing BitGo with valid tax receipts and other required documentation evidencing your payment of such BitGo Taxes; and (ii) assisting BitGo in filing applications to reduce such BitGo Taxes.
4.6 Future Functionality. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
5.1 License for Services. Subject to your performance of obligations under this Agreement, BitGo grants you a non-assignable, non-transferrable, revocable, personal and non-exclusive license under our applicable intellectual property rights to use the Services you ordered under such Order(s) solely in accordance with this Agreement, guidelines and policies referenced in this Agreement, the Documentation, and (with respect to the BitGo Platform API) the SDK. Your license under this Section 5.1 to the SDK and BitGo Platform API is further conditioned upon BitGo’s acceptance of you as a developer.
5.2 Acceptance of you as a developer. Development License. Conditioned upon BitGo’s acceptance of you as a developer, and subject to your performance of obligations under this Agreement, BitGo grants you a non-assignable, non-transferrable, revocable, personal and non-exclusive license under our applicable intellectual property rights to use and reproduce the SDK solely to develop or test the Developer Application.
5.3 Open Source. You understand that certain software packages, libraries, or components of the SDK may be licensed under one or more open source software licenses including those listed on http://www.opensource.org/licenses/alphabetical (“Open Source Components”). You understand and acknowledge that your use, reproduction and distribution of any such Open Source Components are governed by the provisions of the applicable open source software license, and the provisions of such licenses supersede any conflicting provisions of this Agreement.
5.4 Feedback. In the event that you provide comments, suggestions and recommendations to us with respect to the Services (including modifications, enhancements, improvements or suggested changes to the Services, or any feature or function of the Services) (collectively, "Feedback"), you hereby grant us and our Affiliates a universe-wide, royalty free, irrevocable, perpetual license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, publicly perform and otherwise exploit such Feedback without restriction, including in connection with the Services and any updates, extensions or successive versions of the Services.
5.5 U.S. Federal Agency Entities. The Services and associated BitGo Technology were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable U.S. Federal Acquisition Regulation and agency supplements thereto.
5.6 Ownership. You acknowledge and agree that, as between you and us, we own all right, title, and interest to the Services, including the SDK, BitGo Platform API, and all BitGo Technology, and all intellectual property rights thereto or embodied therein, all Derivatives of the foregoing, and all related Confidential Information. At no point shall you assert or contest our exclusive ownership of the foregoing. Except for the express licenses granted in this Section 5, no other licenses are granted by us under this Agreement, by implication, estoppel or otherwise, and we reserve all rights not expressly granted under this Section 5. Claims of Infringement
5.7 Content Infringement. If you believe that your Content has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify BitGo’s Copyright Agent by written communication (by email with an attached and signed PDF or by fax) that sets forth the items specified below:
6.1 “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. In particular; (a) your Confidential Information includes Customer Data (not including information transmitted or otherwise disclosed by transactions through interactivity between the Services and the Bitcoin network, Ethereum network, XRP network or similar blockchain or distributed ledger network); and (b) our Confidential Information includes the SDK, BitGo Platform API, our other Services, and the pricing and other non-public information relating to this Agreement. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Receiving Party that allows such access to its and its Affiliates’ employees and contractors will remain responsible for its and its Affiliates’ employees and contractor compliance with this Section 6. Neither party will disclose the non-public terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 6.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
7.1 Customer Trademarks. You grant us a non-exclusive, nontransferable, royalty-free right during the term of this Agreement to use your company name and logo for use in our marketing documents, including online list of valued customers and in press releases.
8.1 Third Party Services. In connection with your use of the Services, you may be made aware of or offered services, Content, features, products, Non-BitGo Applications, offers and promotions provided by third parties (individually and collectively, “Third Party Services”). We may make Third Party Services available to you. However, our inclusion or promotion of Third Party Services does not reflect a sponsorship, endorsement, approval, investigation, verification, certification or monitoring of such Third Party Services by BitGo. Your acquisition of Third Party Services, and any exchange of data between you and any non-BitGo provider, is solely between you and such provider. BitGo does not warrant Third Party Services in any way. Under no circumstances will we have any liability for Third Party Services. Use Third Party Services at your own risk, and under terms and conditions between you and the provider of Third Party Services that are different than the provisions of this Agreement.
8.2 Non-BitGo Applications. The Services may contain features designed to interoperate with Non-BitGo Applications. To use such features, you must procure Non-BitGo Applications from the providers of such Non-BitGo Applications, and may be required to grant us access to your account on the Non-BitGo Applications. If you enable a Non-BitGo Application for use with the Services, you grant us permission to allow the provider of that Non-BitGo Application to access your information and End User Data as required for the interoperation of that Non-BitGo Application with the Services. We are not responsible for any disclosure, modification or deletion of Content or End User Data resulting from access by a Non-BitGo Application. If the provider of a Non-BitGo Application ceases to make the Non-BitGo Application available for interoperation with the corresponding Services features on reasonable terms, we may cease providing those Services features without entitling you to any refund, credit, or other compensation.
9.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so. If you are entering into this Agreement on behalf of a corporation or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to this Agreement.
9.2 Your Limited Warranties. You represent and warrant that you will not breach your obligations nor the restrictions in Sections 1, 2, 4, 6, or 15.2.
9.3 BitGo Limited Warranties. We warrant that: (a) this Agreement and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Data; (b) the Services will perform materially in accordance with the applicable Documentation except for Exclusions; and (c) the Services will not introduce Malicious Code into your systems.
9.4 Remedies for breach of limited warranty. If we fail to meet any of the limited warranties in Section 9.3 and you notify us that the Services does not meet the limited warranty within thirty (30) days, then we will repair or replace the non-conforming Services, or if we cannot do so after using commercially reasonable efforts, we will refund the amounts you paid for the non-conforming Services that could not be repaired or replaced and terminate this Agreement (without liability arising from such termination). These are your sole and exclusive remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.
9.5 DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THE EXPRESS, LIMITED WARRANTIES SET FORTH IN THIS SECTION 9, THE SERVICES IS PROVIDED “AS-IS” AND WE PROVIDE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS. WE DISCLAIM ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE DISCLAIMERS WILL APPLY TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW.
9.6 No Warranty for Free Trials, Betas or Previews. Notwithstanding anything to the contrary, and to the maximum extent permitted by applicable law, we offer no warranty for, and will have no liability whatsoever arising from or relating to Services offered for alpha or beta testing, Services provided during a free trial period, or Services offered to developers as a “preview” or pre-release, all of which are provided “AS IS”, and provided for evaluation purposes and not for production use (individually and collectively, “Previews”). We may discontinue Previews at any time in our sole discretion, without notice, and may never make them generally available. Previews may employ lesser or different privacy and security measures than those typically present in the Services.
10.1 OUR LIABILITY AND THAT OF OUR AFFILIATES, SUPPLIERS AND CONTRACTORS, IN AGGREGATE, ARISING FROM OR RELATING TO THIS AGREEMENT IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU PAID FOR THE SERVICES GIVING RISE TO THAT LIABILITY; OR (B) FIVE HUNDRED UNITED STATES DOLLARS ($500.00 USD)
10.2 NEITHER WE, NOR ANY OF OUR AFFILIATES, SUPPLIERS OR CONTRACTORS, WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, EXCLUSIONS, OR LOSS OF BUSINESS INFORMATION, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE.10.3 THE LIMITATIONS AND EXCLUSIONS SET FORTH IN SECTIONS 10.1 AND SECTION 10.2 APPLY REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, OR ANY OTHER LEGAL THEORY, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. HOWEVER, THE LIMITATIONS AND EXCLUSIONS SET FORTH IN SECTION 10.1 AND SECTION 10.2 WILL APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND WILL NOT APPLY TO LIABILITY ARISING BREACH OF OBLIGATIONS SET FORTH UNDER SECTION 11 (INDEMNIFICATION).
10.3 THE LIMITATIONS AND EXCLUSIONS SET FORTH IN SECTIONS 10.1 AND SECTION 10.2 APPLY REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, OR ANY OTHER LEGAL THEORY, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. HOWEVER, THE LIMITATIONS AND EXCLUSIONS SET FORTH IN SECTION 10.1 AND SECTION 10.2 WILL APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND WILL NOT APPLY TO LIABILITY ARISING BREACH OF OBLIGATIONS SET FORTH UNDER SECTION 11 (INDEMNIFICATION).
11.1 By BitGo. We will indemnify, hold harmless, and defend you from and against any liabilities, damages, losses, costs and expenses, including but not limited to reasonable attorneys' fees and costs, arising out of any actions, claims, demands or investigations (each, a “Claim”) brought against you by a third party (other than your Affiliates) to the extent that it is based upon a claim that the Services purchased by you (that, for clarity, excludes Third Party Services, the Content you provide, and the Developer Application) as provided and used within the scope of this Agreement, infringes any U.S. patent, copyright, trademark or trade secret rights protected under U.S. law. We will have no liability for any infringement or misappropriation Claim of any kind to the extent that it results from: (a) modifications to the Services made by a party other than us, if a Claim would not have occurred but for such modifications; (b) the combination, operation or use of the Services with equipment, devices, software, service or data not supplied by us, if a Claim would not have occurred but for such combination, operation or use; or (c) your failure to use an updated or modified version of the Services or any BitGo Technology if provided by us to avoid a Claim. Should any use of the BitGo Technology or the Services be enjoined, or if we reasonably believe that the BitGo Technology or the Services may be subject to an infringement Claim, then we may, at its sole option and expense: (a) procure the right to use the Services as provided herein, (b) replace the Services with other non-infringing Services with substantially equivalent functionality, (c) suitably modify the Services so that it does not infringe, or (d) if we determine that none of the foregoing is feasible, terminate this Agreement. The provisions of this section set forth our sole and exclusive obligations, and your sole and exclusive remedies, with respect to infringement or misappropriation of intellectual property rights of any kind arising from or relating to the Services.
11.2 By Customer. You agree to indemnify, hold harmless, and defend us, our officers, directors, employees, Affiliates, subsidiaries, licensors, suppliers and service providers (collectively, “Representatives”) from and against any liabilities, damages, losses, costs and expenses, including but not limited to reasonable attorneys' fees and costs, arising out of any Claim brought against us or a Representative by a third party arising from or relating to: (a) your Content, Developer Application, trademarks, logos or marks infringing any third party intellectual property rights; (b) your development, marketing, operation, use, licensing, support or distribution of your Developer Application; (c) a dispute between you and any end user or customer of yours; (d) your use of the Services, including any data provided via the Services; (e) your Content; (f) a security breach of your Developer Application, computers, or systems; (g) 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 as a result of a security breach of your Developer Application, computers, or systems, or (g) your breach of this Agreement or representations in Section 9.1.
11.3 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 BitGo and its Representatives harmless for any and all claims, liabilities, damages, losses, costs and expenses, including but not limited to reasonable attorneys' fees and costs incurred by BitGo or the Representatives arising from acts of your Affiliates, subsidiaries, employees or any third-parties.
11.4 Procedure. For any indemnifiable Claim described in this Section 11, 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 11, 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 11.3, 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 11 with respect to such Claim, except to the extent the indemnifying party is prejudiced by such failure.
12.1 Term of Agreement and Subscriptions. This Agreement commences on the date you first accept it and continues until the earlier of: (a) when all subscriptions hereunder have expired or have been terminated; or (b) when this Agreement is terminated as provided in this Section 12 or under another provision of this Agreement. The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The pricing during any automatic renewal term will be at BitGo’s then-current standard pricing, unless different renewal pricing is specified on the applicable Order.
12.2 Termination. A party may terminate this Agreement for cause: (a) upon thirty (30) days written notice to the other party of a material breach describing such breach, and such breach remains uncured at the expiration of such period; (b) if the other party ceases to do business in the ordinary course; (c) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (d) as otherwise provided in this Agreement.
12.3 Refund or Payment upon Termination. If this Agreement is terminated by us in accordance with Section 12.2 for your breach, then you will pay any unpaid fees covering the remainder of the term of all Orders. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination, or of your other liabilities or breach arising before termination.
12.4 Effect of Termination. Upon the expiration or termination of this Agreement:
13.1 YOU AND BITGO AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE SERVICES (INCLUDING THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE) SHALL BE DETERMINED BY BINDING ARBITRATION INSTEAD OF IN COURTS OF GENERAL JURISDICTION. The language to be used in the arbitral proceedings will be English. You agree that you and BitGo are each waiving the right to a trial by jury and to participate in a class action. This arbitration provision shall survive any termination of other terms.
13.2 The arbitrator shall not have the power to award damages that are limited or waived by this Agreement (such as punitive damages, treble damages, or any other damages which are not compensatory), to the extent such limitation or waiver is permitted under applicable law, and the parties waive any right to recover any such damages. Further, the arbitrator shall have no power to issue any award that is contrary to or inconsistent with any applicable statute, case law or constitutional law, to modify, change or excuse performance of any material term of this Agreement, or to award equitable relief. The arbitration proceedings and decision of the arbitrator shall be kept confidential (and may not be disclosed) by the parties or the arbitrator, except to the extent necessary to compel any award made by the arbitrator.
13.3 The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, or if you reside outside the U.S.A., pursuant to JAMS International Arbitration Rules (in each case, the “Rules”).
13.4 The arbitration hearings will take place in Palo Alto, California.
13.5 YOU AND BITGO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and BitGo agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding.
13.6 Notwithstanding any other provision in this Section 13 to the contrary, either party will at all times be entitled to seek and obtain injunctive relief from infringement or threatened infringement of its intellectual property rights, or misappropriation of its trade secrets, in any court having jurisdiction. Each party agrees that notice of arbitration may be serviced by written notice as provided by Section 15.1.
This Agreement shall be governed by, subject to, and interpreted in accordance with the laws of the state of California, and the federal laws of the U.S.A., each without regard to conflict of laws principles. The parties agree that this Agreement and the transactions contemplated therein shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If arbitration cannot be compelled under Section 13, then the parties (a)hereby irrevocably consent to the jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Santa Clara County, California for the purposes of adjudicating any action or proceeding to enforce the terms of this Agreement, and (b) each party waives, to the fullest extent permitted by law, any objection that it may now or later have to such venue and any claim that any such action or proceeding brought in any such court has been brought in an inconvenient forum.