1. Introduction and Scope
1.1 These Standard Terms of Service (these "Terms") govern Customer's use of the platform and services provided by The Better Money Company, a Delaware corporation ("TBMC," "we," "us," or "our"). By signing an Order Form that references these Terms, using any APIs provided by TBMC, or by accessing or using the Platform, Customer agrees to be bound by these Terms. If Customer is accepting these Terms on behalf of an entity, the individual accepting represents that they have the authority to bind that entity.
1.2 TBMC operates a technology platform (the "Platform") that facilitates stablecoin swapping, clearinghouse and other services across blockchain networks. TBMC provides the technology layer that enables Customers to move between supported Stablecoins and fiat as well as to transfer certain stablecoins. In providing Services under these Terms, TBMC acts only as a provider of technology and software services. TBMC is not a bank, money transmitter, broker-dealer, exchange, custodian of any funds or Stablecoins, or other licensed financial institution. TBMC does not provide legal, financial, or investment advice and owes no fiduciary duties to Customer or any third party in connection with the Services.
1.3 Custody, settlement, and regulated financial services in connection with the Platform are provided by BitGo Bank & Trust, National Association, or its applicable Affiliate ("BitGo" or the "Custodian"). Customer's Stablecoins are held by BitGo, not by TBMC. As a condition of using the Platform, Customer must execute or accept the BitGo Custodial Services Agreement and the BitGo Electronic Trading Agreement (together, the "BitGo Customer Agreements"). The BitGo Customer Agreements are between Customer and BitGo and govern all custodial and trading services. TBMC is not a party to the BitGo Customer Agreements and has no liability for BitGo's performance under them.
1.4 Certain features or services may be subject to additional terms, which will be presented to Customer before Customer uses those features or services. Those additional terms become part of these Terms when Customer accepts them. If there is a conflict between these Terms and any additional terms, the additional terms control for the relevant feature or service.
2. Definitions
Capitalized terms used but not defined in these Terms have the meanings given in the applicable Order Form. The following definitions apply:
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where "control" means ownership of more than fifty percent (50%) of the voting interests.
"Applicable Law" means all applicable laws, statutes, regulations, rules, orders, and guidance of any governmental authority, including anti-money laundering and anti-terrorist financing laws, sanctions programs (including the Bank Secrecy Act and regulations of the U.S. Department of the Treasury's Office of Foreign Assets Control), and financial services laws.
"Authorized User" means an individual designated by Customer to access and use the Platform on Customer's behalf.
"BitGo Customer Agreements" has the meaning set forth in Section 1.3.
"Customer" (also "you" or "your") means the entity identified in the applicable Order Form.
"Customer Data" means data submitted by Customer to the Platform, excluding Transaction Data.
"Custodian" has the meaning set forth in Section 1.3.
"Fees" means the fees payable by Customer for use of the Services as set forth in the applicable Order Form or Fee Schedule.
"Losses" means any claims, liabilities, damages, losses, fines, penalties, costs, and expenses (including reasonable attorneys' fees).
"Order Form" means any written ordering document executed by the parties that references these Terms.
"Platform" means TBMC's proprietary stablecoin clearinghouse technology platform, including all APIs, interfaces, dashboards, and related tools.
"Services" means the stablecoin swapping, clearing facilitation, and related services provided through the Platform as described in the applicable Order Form.
"Stablecoins" means any digital unit of value, token, or other cryptographic asset that is designed to maintain a stable value relative to fiat currency and that is issued, recorded, represented, or transferred using distributed ledger or blockchain technology. The Stablecoins supported on the Platform may be updated by TBMC from time to time.
"Transaction" means any swap, conversion, redemption, minting, sale, or transfer of Stablecoins initiated by or on behalf of Customer through the Platform.
"Transaction Data" means data related to Customer's Transactions, including amounts, asset types, wallet addresses, timestamps, and chain identifiers.
3. Services
3.1 License Grant
Subject to these Terms and the applicable Order Form, TBMC grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Platform for Customer's internal business purposes during the term of the applicable Order Form. In using the Services, Customer must comply with TBMC's documentation and reasonable instructions.
3.2 Transactions
Transactions submitted through the Platform are processed in accordance with Custodian's standard processing procedures. By Customer using the Services, TBMC will communicate to Custodian instructions from Customer to transmit, execute, or facilitate Transactions, which are instructed or enabled by Customer through the Platform. This includes, where necessary to perform the Services, facilitating the redemption of a Stablecoin, the minting of a Stablecoin, and the sale of a Stablecoin through the Custodian or directly with a Stablecoin issuer. Settlement is facilitated through BitGo and is subject to blockchain network conditions, Custodian processing times, and issuer availability. TBMC does not guarantee any specific settlement time. Stablecoins submitted in connection with the Services are held in custody by BitGo, not by TBMC.
3.3 Customer Authorization to Communicate with Custodian
Customer authorizes TBMC to instruct the Custodian to transfer, convert, redeem, mint, sell, or otherwise move Stablecoins held in Customer's custodial accounts at the Custodian solely as necessary to fulfill Customer-initiated Transactions and to perform the Services. TBMC does not have independent discretionary authority over Customer's Stablecoins. All movement of Customer's Stablecoins occurs for the sole purpose of fulfilling instructions that Customer initiates through the Platform. TBMC will not access, withdraw, loan, pledge, rehypothecate, or otherwise use or encumber Customer's Stablecoins for TBMC's own benefit or for any purpose other than executing Customer-initiated Transactions. Customer acknowledges that during the processing of a Transaction, Stablecoins may be in transit between wallets, blockchain networks, custodial accounts, or issuers, and that TBMC is not liable for any loss, delay, or diminution in value of Stablecoins while in transit due to causes outside TBMC's reasonable control, including blockchain network failures, issuer delays, smart contract errors, or Custodian processing delays (see Sections 11 and 12).
3.4 Custodian Rejection
Customer acknowledges that the Custodian retains full discretion to reject, block, delay, or reverse any Transaction, or to decline to onboard or continue servicing any Customer, at any time and for any reason, including for compliance with the Custodian's own risk management policies, Applicable Law, or the BitGo Customer Agreements. TBMC is not responsible for, and will have no liability arising from, any such rejection, block, delay, reversal, or refusal by the Custodian, including any resulting disruption to Customer's business or any Losses Customer may incur.
3.5 Limitations on Transactions; Compliance Checks
TBMC and the Custodian retain full discretion to refuse to transmit or to block any Transaction at any time and for any reason. This may include: (a) if TBMC or the Custodian believes an instruction is ambiguous, incomplete, or contrary to Applicable Law; (b) in accordance with TBMC's or the Custodian's risk management policies and procedures; (c) if TBMC or the Custodian believes the instruction may involve Stablecoins subject to a hold, dispute, restriction, or legal process; (d) as directed or required by any governmental authority; or (e) for any other reason TBMC deems appropriate in its sole discretion. TBMC may perform additional compliance checks, screening, or monitoring on any Transaction, Customer, or Authorized User at any time. TBMC may file suspicious activity reports ("SARs") or make other reports to governmental authorities as TBMC determines is required or appropriate under Applicable Law, without notice to or consent from Customer, and Customer acknowledges that TBMC is prohibited by law from disclosing the existence of any such filings to Customer. Customer is solely responsible for any Losses resulting from inaccurate, incomplete, or erroneous instructions.
3.6 Volume and Transaction Limits
Customer's use of the Services is subject to any applicable volume limits set forth in the applicable Order Form and any other volume, velocity, frequency, or other transaction limitations. TBMC or Custodian, as applicable, may update these limitations at any time by written notice (including email) to Customer. Customer's continued use of the Services following notice of updated limitations constitutes acceptance.
3.7 Supported Stablecoins
The Stablecoins available on the Platform may change at TBMC's discretion at any time and without notice. Additionally, the Custodian may update the supported Stablecoins in its sole discretion, including eliminating supported for previously supported Stablecoins.
3.8 Modifications
TBMC may modify, update, suspend, or discontinue any part of the Services at any time. Where practicable, TBMC will provide reasonable advance notice of material changes. TBMC may act immediately and without notice where required for security, legal, regulatory, or operational integrity reasons.
3.9 Availability
TBMC does not guarantee uninterrupted access to the Platform. The Platform may be temporarily unavailable for maintenance, upgrades, or reasons beyond TBMC's control. TBMC is not liable for any unavailability or disruption of the Platform.4. Customer Accounts
4. Customer Accounts
4.1 Onboarding
Customer agrees to provide all information and documentation reasonably requested by TBMC or BitGo in connection with account opening, including information required for know-your-customer, know-your-business, anti-money laundering, and sanctions screening purposes. Customer authorizes TBMC and BitGo to make inquiries and obtain reports to verify Customer's identity and eligibility. Customer authorizes TBMC to share any and all information collected from Customer (including registration data, identity verification data, beneficial ownership information, and ongoing due diligence information) with the Custodian for the purpose of enabling the Custodian to perform its compliance obligations, onboarding processes, and ongoing monitoring. Access to the Services is contingent on satisfactory completion of all onboarding processes required by both TBMC and BitGo.
4.2 Authorized Users
Customer is responsible for designating Authorized Users and for all actions taken through Customer's account, including the acts and omissions of any Authorized User or other person who accesses Customer's account. Customer must maintain the security and confidentiality of all login credentials (using strong, unique passwords and, where available, multi-factor authentication) and promptly notify TBMC of any unauthorized access or suspected security breach. TBMC is not liable for any Losses arising from unauthorized use of Customer's account.
4.3 Account Information
Customer must keep all account information accurate and up to date. Customer must promptly notify TBMC of any material change in Customer's business, ownership structure, or regulatory status. TBMC may request enhanced due diligence at any time, and Customer's continued use of the Services is contingent on Customer's cooperation with those requests. Failure to provide reasonably requested information is grounds for suspension or termination of the Services.
4.4 Processing Errors; Customer Responsibility for Instructions
If Customer discovers a processing error, Customer must notify TBMC promptly. TBMC will use commercially reasonable efforts to work with the Custodian and any relevant parties to address the error. Customer acknowledges that some Transactions may not be reversible or recoverable, even in the event of Customer error. Customer is solely responsible for ensuring the accuracy of all Transaction instructions submitted through the Platform, including wallet addresses, blockchain network selections, and chain identifiers. If Customer provides an incorrect wallet address, selects an incorrect blockchain network or chain, or otherwise submits erroneous instructions, and Stablecoins are lost, sent to an unintended recipient, or become irretrievable as a result, Customer bears sole responsibility for any resulting Losses, and TBMC will have no liability for such Losses. Customer's failure to notify TBMC of a processing error within thirty (30) days of when it first appears in Customer's transaction history constitutes a waiver of any right to amounts owed to Customer in connection with that error.
5. Customer Representations and Warranties
Customer represents and warrants to TBMC, on an ongoing basis throughout the term of the applicable Order Form, that:
(a) Customer is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization, is located in the United States, its territories, or the District of Columbia, and has the legal authority and capacity to enter into these Terms.
(b) The execution, delivery, and performance of these Terms are within Customer's corporate powers and have been duly authorized by all necessary corporate action.
(c) Customer's use of the Services does not violate any Applicable Law or any agreement to which Customer is subject.
(d) All Stablecoins submitted by Customer to the Platform are lawfully obtained and are not derived from or associated with any unlawful activity, including money laundering, fraud, terrorist financing, sanctions evasion, or any other prohibited activity.
(e) Neither Customer, nor any person or entity that owns or controls Customer, is: (i) listed on any U.S. sanctions list, including the OFAC Specially Designated Nationals and Blocked Persons List or the U.S. Department of Commerce's Denied Persons, Entity, or Unverified Lists; (ii) located in, organized under the laws of, or a resident of Cuba, Iran, North Korea, Syria, or the Crimea, Donetsk, or Luhansk regions of Ukraine; or (iii) otherwise a prohibited person under any applicable sanctions program.
(f) Customer maintains and will continue to maintain its own compliance program as required by Applicable Law.
(g) Customer is not acting on behalf of any undisclosed third party.
(h) Customer will not use the Services for any illegal activity, including illegal gambling, money laundering, fraud, blackmail, extortion, ransoming data, the financing of terrorism, or any other prohibited activity.
(i) Customer will comply with all applicable U.S. and foreign export and import laws in connection with the Services, and will not provide access to the Services to any person or entity in an embargoed country or on any applicable restricted party list.
(j) Customer will not make any false or misleading representations regarding TBMC or the Services, or any statements, representations, or warranties that are inconsistent with materials provided by TBMC.
6. Customer Obligations
6.1 Conduct
In connection with the Services, Customer will: (a) comply with all Applicable Law; (b) at TBMC's request, cooperate with any request, audit, examination, review, or investigation by any governmental authority or the Custodian, including any requests for information regarding Customer or Customer's Transactions; and (c) provide TBMC with such cooperation, assistance, and information as TBMC may reasonably request to enable TBMC to perform its obligations under these Terms.
6.2 Customer Responsibility
As between TBMC and Customer, Customer is solely responsible for its use of the Services, including all Transactions and any related Losses arising from such use. Customer is solely responsible for ensuring that the Services and any results of the Services are adequate for Customer's own purposes, including any of its accounting, record retention, financial reporting, and compliance obligations.
7. Fees and Payment
7.1 Fees
Customer agrees to pay all Fees set forth in the applicable Order Form or Fee Schedule. TBMC may update the Fee Schedule upon thirty (30) days' prior written notice. Continued use of the Services after the effective date of any fee change constitutes acceptance.
7.2 Payment Terms
Unless the applicable Order Form specifies otherwise, all Fees are due within thirty (30) days of invoice. Late payments bear interest at the lesser of 1.5% per month or the maximum rate permitted by law.
7.3 Taxes
All Fees are exclusive of taxes. Customer is responsible for all sales, use, value-added, withholding, and other taxes arising from these Terms, excluding taxes based on TBMC's net income.
7.4 Blockchain and Third-Party Costs
Customer is responsible for all blockchain network fees (including gas fees), Custodian fees, and any other third-party costs incurred in connection with Customer's Transactions, unless expressly included in the Fees.
7.5 No Refunds
All Fees are non-refundable except as expressly provided in these Terms or an Order Form.
8. Intellectual Property
8.1 Ownership
Neither party grants the other any rights or licenses not expressly set out in these Terms. Except for Customer's use rights under Section 3.1, TBMC and its licensors retain all intellectual property and other rights in the Platform, Services, and all related technology, software, algorithms, documentation, templates, dashboards, and trademarks ("TBMC IP").
8.2 Restrictions
Customer may not (and may not permit anyone else to): (a) reverse engineer, decompile, or disassemble the Platform, except to the extent this prohibition is restricted by Applicable Law (and then only with prior notice to TBMC); (b) copy, modify, or create derivative works of the Platform; (c) sublicense, resell, or distribute access to the Platform; (d) use the Platform for benchmarking, competitive analysis, or to develop a similar or competing product or service; (e) attempt to circumvent any security measures or access controls; (f) use the Platform to develop or train any machine learning model or artificial intelligence system; (g) use the Platform in any manner that could damage, disable, or impair it; or (h) use any unauthorized automated means (including spiders, robots, scrapers, or data mining tools) to access the Platform.
8.3 Feedback
If Customer provides suggestions, ideas, or feedback regarding the Platform or Services ("Feedback"), TBMC may use that Feedback freely without restriction or obligation to Customer. Feedback is not Customer's Confidential Information.
8.4 Customer Data
As between the parties, Customer retains all right, title, and interest in Customer Data. Customer grants TBMC a non-exclusive, worldwide license to use, process, and store Customer Data as necessary to provide the Services and as described in TBMC's Privacy Policy.
9. Confidentiality
9.1 Confidential Information.
"Confidential Information" means information disclosed to the receiving party under these Terms that is designated by the disclosing party as proprietary or confidential, or that should reasonably be understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. TBMC's Confidential Information includes the terms of these Terms (including any Order Form) and any technical or performance information about the Services. Customer's Confidential Information includes Customer Data.
9.2 Obligations
The receiving party will: (a) hold Confidential Information in confidence, using at least reasonable care, and not disclose it to third parties except as permitted in these Terms; and (b) only use Confidential Information to fulfill its obligations and exercise its rights under these Terms. The receiving party may disclose Confidential Information to its employees, agents, consultants, and professional advisors having a legitimate need to know, provided the receiving party remains responsible for their compliance with this Section 9 and they are bound to confidentiality obligations no less protective than this Section 9. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 9.
9.3 Exclusions
Confidential Information does not include information that the receiving party can document: (a) is or becomes publicly available without breach of these Terms; (b) was rightfully known or possessed prior to receipt under these Terms; (c) was rightfully received from a third party without breach of confidentiality obligations; or (d) was independently developed without use of or reference to the disclosing party's Confidential Information.
9.4 Required Disclosures
Nothing in these Terms prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Applicable Law, subpoena, or court order, provided (if permitted by law) the disclosing party notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
9.5 Duration
The obligations under this Section 9 survive termination for three (3) years, except with respect to trade secrets, which are protected for so long as they remain trade secrets under Applicable Law.
10. Data
10.1 Use of Data
During and after the term of these Terms, TBMC may use and process Customer Data and Transaction Data: (a) to provide the Services; (b) as required by Applicable Law; (c) for security, anti-fraud, product improvement, and maintenance purposes; (d) in aggregated, de-identified form for analytics, reporting, and other lawful business purposes; and (e) as described in TBMC's Privacy Policy. This includes disclosing data to the Custodian as required or requested by the Custodian.
10.2 Disclosure to Authorities
TBMC may disclose Customer Data, Transaction Data, and any other information relating to Customer or Customer's Transactions to regulators, law enforcement agencies, governmental authorities, or other third parties: (a) as required by Applicable Law, regulation, subpoena, court order, or other lawful process; (b) in connection with any SAR filing or other report TBMC determines is required or appropriate under Applicable Law; or (c) as TBMC reasonably determines is necessary to comply with its legal or regulatory obligations. TBMC is not required to notify Customer of any such disclosure except to the extent required by Applicable Law.
10.3 Security
TBMC maintains commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Data and Transaction Data against unauthorized access, loss, or alteration. No system is perfectly secure, and TBMC does not guarantee that its safeguards will prevent every unauthorized access.
10.4 Breach Notification
If TBMC becomes aware of a security breach affecting Customer Data, TBMC will notify Customer without unreasonable delay and cooperate reasonably in any investigation.
11. Disclaimers
11.1 As-Is
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE PLATFORM AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TBMC AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. TBMC MAKES NO WARRANTY OR GUARANTEE ABOUT THE PLATFORM, THE SERVICES, OR ANY BLOCKCHAIN PROTOCOL, ISSUER'S TECHNOLOGY, OR CUSTODIAN'S PLATFORM (INCLUDING THEIR FUNCTIONALITY, SECURITY, OR AVAILABILITY).
11.2 No Guarantees
WITHOUT LIMITING THE FOREGOING, TBMC DOES NOT WARRANT THAT: (A) THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF HARMFUL COMPONENTS; (B) ANY TRANSACTION WILL SETTLE WITHIN A PARTICULAR TIMEFRAME; (C) THE VALUE OR STABILITY OF ANY STABLECOIN WILL BE MAINTAINED; (D) THE PLATFORM WILL BE COMPATIBLE WITH ANY PARTICULAR BLOCKCHAIN NETWORK, PROTOCOL, OR THIRD-PARTY SERVICE; OR (E) TBMC WILL REVIEW CUSTOMER DATA OR TRANSACTION DATA FOR ACCURACY OR MAINTAIN SUCH DATA WITHOUT LOSS.
11.3 Stablecoin and Blockchain Risks
CUSTOMER ACKNOWLEDGES AND AGREES THAT: (A) IT IS ELECTING TO ASSUME THE RISK OF LOSS IN HOLDING AND USING STABLECOINS, WHICH RISK CAN BE SUBSTANTIAL; (B) CUSTOMER HAS MADE ITS OWN SUITABILITY DETERMINATIONS AS TO ENTERING INTO THESE TERMS AND USING THE SERVICES; (C) TBMC MAKES NO WARRANTY OR GUARANTEE ABOUT ANY STABLECOINS OR ANY PROTOCOLS, BLOCKCHAINS, OR ISSUER PLATFORMS USED IN CONNECTION WITH THE SERVICES, WHICH MAY BE SUBJECT TO CHANGE IN WAYS THAT AFFECT CUSTOMER OR TRANSACTIONS; AND (D) STABLECOINS MAY LOSE THEIR PEG, BECOME ILLIQUID, BE SUBJECT TO ISSUER DEFAULT OR REGULATORY ACTION, OR OTHERWISE LOSE VALUE, AND TBMC HAS NO LIABILITY FOR ANY SUCH EVENTS.
11.4 In-Transit Risk
CUSTOMER ACKNOWLEDGES THAT DURING THE PROCESSING OF TRANSACTIONS, STABLECOINS MAY BE IN TRANSIT BETWEEN WALLETS, BLOCKCHAIN NETWORKS, CUSTODIAL ACCOUNTS, OR ISSUERS. TBMC IS NOT LIABLE FOR ANY LOSS, DELAY, OR DIMINUTION IN VALUE OF STABLECOINS WHILE IN TRANSIT DUE TO BLOCKCHAIN NETWORK FAILURES OR CONGESTION, SMART CONTRACT ERRORS OR VULNERABILITIES, ISSUER DELAYS OR DEFAULTS, CUSTODIAN PROCESSING DELAYS, PROTOCOL CHANGES OR FORKS, OR ANY OTHER CAUSE OUTSIDE TBMC'S REASONABLE CONTROL.
11.5 Third-Party Acts
TBMC IS NOT RESPONSIBLE FOR AND MAKES NO REPRESENTATIONS REGARDING THE ACTS OR OMISSIONS OF BITGO, ANY STABLECOIN ISSUER, ANY BLOCKCHAIN NETWORK, OR ANY OTHER THIRD PARTY. CUSTOMER'S USE OF SERVICES PROVIDED BY BITGO IS GOVERNED SOLELY BY THE BITGO CUSTOMER AGREEMENTS. TBMC IS NOT LIABLE FOR THE ACCURACY, COMPLETENESS, OR TIMELINESS OF TRANSACTIONS PROVIDED OR INITIATED BY OR ON BEHALF OF CUSTOMER THROUGH THE SERVICES, NOR FOR ANY ACTION OR INACTION TAKEN BY CUSTOMER BASED ON THE STATUS OF TRANSACTIONS INDICATED IN THE SERVICES.
11.6 Our Role
IN PROVIDING SERVICES UNDER THESE TERMS, TBMC ACTS ONLY AS A PROVIDER OF TECHNOLOGY AND SOFTWARE SERVICES. TBMC DOES NOT SERVE AS A CUSTODIAN OF ANY STABLECOINS OR FUNDS, DOES NOT PROVIDE CUSTODIAL SERVICES, AND IS NOT RESPONSIBLE FOR ANY TRANSACTIONS, INCLUDING ANY RISK OF FRAUD, LOSS, OR REVERSAL. TBMC DOES NOT PROVIDE LEGAL, FINANCIAL, OR INVESTMENT ADVICE AND HAS NO FIDUCIARY DUTIES TO CUSTOMER OR ANY THIRD PARTY.
12. Limitation of Liability
12.1 No Consequential Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST DATA, BUSINESS INTERRUPTION, FAILURE OF SECURITY MECHANISMS, OR LOSS OF GOODWILL, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 Liability Cap
EXCEPT AS SET FORTH IN SECTION 12.3, EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO TBMC IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12.3 Carve-Outs
The limitations in Sections 12.1 and 12.2 do not apply to: (a) Customer's indemnification obligations under Section 13; (b) Customer's breach of Section 9 (Confidentiality); (c) Customer's violation of Section 8.2 (Restrictions); (d) Fees owed by Customer; or (e) either party's fraud, gross negligence, or willful misconduct. For clarity, the liability cap in Section 12.2 does not apply to claims arising from either party's fraud, gross negligence, or willful misconduct, and such claims are not subject to any contractual cap on damages under these Terms.
12.4 No Liability for Stablecoin Losses
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 12.3(e), TBMC WILL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS OF STABLECOINS OR OTHER DIGITAL ASSETS, INCLUDING LOSSES ARISING FROM: (A) ACTS OR OMISSIONS OF BITGO OR ANY CUSTODIAN; (B) BLOCKCHAIN NETWORK FAILURES, DELAYS, FORKS, OR CONSENSUS CHANGES; (C) ACTIONS, FAILURES, OR DEFAULTS OF ANY STABLECOIN ISSUER; (D) LOSS OF PEG, DEVALUATION, OR ILLIQUIDITY OF ANY STABLECOIN; (E) LOSS, DELAY, OR DIMINUTION IN VALUE WHILE STABLECOINS ARE IN TRANSIT DURING TRANSACTION PROCESSING; (F) REJECTION, BLOCKING, OR REVERSAL OF ANY TRANSACTION BY THE CUSTODIAN; OR (G) ANY FORCE MAJEURE EVENT. FOR CLARITY, THE FOREGOING DISCLAIMER DOES NOT LIMIT TBMC'S LIABILITY FOR LOSSES ARISING FROM TBMC'S OWN FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
12.5 Basis of the Bargain
THE LIMITATIONS IN THIS SECTION 12 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN. THE SERVICES WOULD NOT BE PROVIDED WITHOUT THESE LIMITATIONS. THESE LIMITATIONS APPLY REGARDLESS OF THE FORM OF ACTION AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE.
13. Indemnification
13.1 By Customer
Customer will defend, indemnify, and hold harmless TBMC, its Affiliates, and their respective stockholders, directors, officers, employees, agents, and representatives (collectively, "TBMC Indemnitees") from and against any Losses resulting from any third-party claim arising out of or related to: (a) Customer's breach of these Terms, including any representation or warranty in Section 5; (b) Customer's violation of Applicable Law; (c) Customer's Transactions or use of the Services; (d) any dispute between Customer and its own customers, counterparties, or end users; or (e) Customer's fraud, gross negligence, or willful misconduct.
13.2 IP Indemnification by TBMC
TBMC will defend, indemnify, and hold harmless Customer from and against any third-party claim (and resulting damages, settlement amounts, liabilities, and costs, including reasonable attorneys' fees) alleging that the Platform, when used by Customer as authorized under these Terms, infringes a third party's U.S. patent, copyright, trademark, or trade secret. TBMC's obligations under this Section 13.2 do not apply to infringement resulting from: (i) Customer's modification of the Platform or use of the Platform in combination with items not provided by TBMC; (ii) unauthorized use of the Platform; or (iii) Customer's settlement of or admissions regarding a claim without TBMC's prior consent. If required by settlement or injunction, TBMC may at its option: (A) procure rights for Customer's continued use; (B) replace or modify the infringing portion to avoid infringement without materially reducing functionality; or (C) terminate the affected Order Form and refund any pre-paid, unused Fees. This Section 13.2 is Customer's exclusive remedy regarding infringement of third-party intellectual property rights.
13.3 Procedures
The indemnifying party's obligations are subject to receiving: (a) prompt written notice of any claim (provided that failure to provide prompt notice does not relieve the indemnifying party except to the extent materially prejudiced); (b) sole control of the defense and settlement; and (c) reasonable cooperation at the indemnifying party's expense. Neither party may settle any claim in a manner that imposes obligations on, or admits fault by, the other party without the other party's prior written consent.
14. Term and Termination
14.1 Term
These Terms are effective as of the date Customer first accepts them and remain in effect for so long as Customer has an active Order Form (the "Term").
14.2 Termination for Convenience
Either party may terminate an Order Form upon thirty (30) days' prior written notice.
14.3 Termination for Cause
Either party may terminate an Order Form immediately upon written notice if the other party: (a) materially breaches these Terms and fails to cure within thirty (30) days after written notice of the breach; (b) ceases operations without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against it and not dismissed within sixty (60) days.
14.4 Suspension and Immediate Termination
TBMC may suspend or terminate Customer's access to the Services immediately, without prior notice, if TBMC reasonably determines that: (a) Customer has violated any Applicable Law or any representation or warranty under Section 5; (b) Customer's account or Transactions pose a risk of fraud, money laundering, sanctions violation, or other illicit activity; (c) suspension or termination is required by any governmental authority, BitGo, or any Stablecoin issuer; (d) continued service would expose TBMC, BitGo, or any Stablecoin issuer to material legal, regulatory, or financial risk; or (e) suspension or termination is advisable in accordance with TBMC's risk management policies.
14.5 Wind Down
If either party terminates an Order Form, both parties agree to work in good faith and use commercially reasonable efforts to promptly facilitate an orderly wind down, including facilitating the withdrawal or transfer of Customer's remaining Stablecoins through BitGo, subject to BitGo's policies, the BitGo Customer Agreements, and Applicable Law.
14.6 Effect of Termination
On termination of an Order Form: (a) Customer's access to the Platform ceases; (b) Customer must pay all outstanding Fees; (c) at the disclosing party's request, the receiving party will delete the disclosing party's Confidential Information, except that each party may retain Confidential Information in standard backups, for record retention purposes, or as required by Applicable Law, and any retained Confidential Information remains subject to these Terms. Pending Transactions at the time of termination may be completed or cancelled at TBMC's reasonable discretion. TBMC will have no liability for any termination or suspension made in accordance with this Section 14.
14.7 Survival
Sections 2 (Definitions), 5 (Representations and Warranties), 6 (Customer Obligations), 7 (for accrued obligations), 8 (Intellectual Property), 9 (Confidentiality), 10 (Data, as relevant to retained data), 11 (Disclaimers), 12 (Limitation of Liability), 13 (Indemnification), 14.5 through 14.7, 15 (Dispute Resolution), and 16 (General) survive termination.
15. Dispute Resolution
15.1 Governing Law
These Terms are governed by the laws of the State of Delaware, without regard to conflict of laws principles and without regard to the United Nations Convention on the International Sale of Goods.
15.2 Executive Escalation
The parties will use reasonable efforts to negotiate in good faith and settle any dispute arising under or in connection with these Terms (a "Dispute"). If a Dispute cannot be settled through negotiations by appropriate representatives of each party, either party may give the other a written notice (a "Dispute Notice"). Within seven (7) days of the Dispute Notice, the parties will each refer the Dispute to their designated senior representatives who will meet to attempt to resolve the Dispute. If the Dispute is not resolved in writing within thirty (30) days of the Dispute Notice, it may be resolved in accordance with Section 15.3.
15.3 Arbitration
Any Dispute that cannot be settled under Section 15.2 will be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration will be conducted by a single arbitrator in Wilmington, Delaware. The arbitrator's decision is final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The arbitrator will issue a reasoned opinion. All arbitration proceedings, including the existence of the Dispute and any award, are Confidential Information under Section 9. The fees and costs of the arbitrator and other costs of conducting the arbitration will be borne by the parties equally, except that each party bears the costs of its own witnesses and legal representation. The arbitrator has no authority to award punitive damages or other damages not measured by the prevailing party's actual damages, subject to Section 12.
15.4 Attorneys' Fees
The prevailing party in any action to enforce these Terms will be entitled to recover its reasonable attorneys' fees and costs.
15.5 Jury Waiver
EACH PARTY WAIVES THE RIGHT TO A JURY TRIAL IN ANY ACTION ARISING OUT OF OR RELATED TO THESE TERMS.
15.6 Class Action Waiver
ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING.
15.7 Equitable Relief.
Nothing in this Section 15 limits either party's right to seek injunctive or other equitable relief in any court of competent jurisdiction to prevent irreparable harm, including to protect its intellectual property or Confidential Information, without waiving its right to arbitration.
16. General
16.1 Notices
Except as otherwise set out in these Terms, all notices must be in writing and are deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); (c) one day after dispatch if by commercial overnight delivery service; or (d) upon delivery if by email (with confirmation of receipt). Notices to TBMC must be sent to: legal@bettermoney.com / 228 Park Ave S., PMB 256451, New York, NY 10003. Either party may update its address with notice to the other party.
16.2 Assignment
Customer may not assign these Terms or any Order Form without TBMC's prior written consent. Any attempt to assign without consent is void. TBMC may assign these Terms without Customer's consent.
16.3 Force Majeure
Neither party is liable for failure or delay in performing obligations (other than payment) to the extent caused by events beyond its reasonable control, including natural disasters, war, terrorism, pandemics, government actions, sanctions, blockchain network failures or disruptions, smart contract vulnerabilities, Stablecoin issuer actions or defaults, Internet or utility failures, or disruptions to digital asset markets or protocols.
16.4 Entire Agreement
These Terms, together with all Order Forms, the Fee Schedule, the Privacy Policy, and any additional terms accepted by Customer, constitute the entire agreement between the parties regarding the subject matter hereof and supersede all prior agreements, understandings, and representations. Headings are for convenience only, and "including" and similar terms are to be construed without limitation.
16.5 Amendments
TBMC may update these Terms by posting revised Terms and providing Customer at least thirty (30) days' prior written notice. Continued use of the Services after the effective date of any update constitutes acceptance. If Customer does not agree to updated Terms, Customer must stop using the Services before the effective date. Material changes to Sections 11, 12, or 13 require Customer's affirmative written consent.
16.6 Severability
If any provision of these Terms is held invalid or unenforceable, it will be limited to the minimum extent necessary so the rest of these Terms remains in effect.
16.7 Waiver
Waivers must be signed by the waiving party's authorized representative and cannot be implied from conduct.
16.8 Independent Contractors
The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, or employment relationship.
16.9 Third-Party Beneficiaries
Except for the TBMC Indemnitees under Section 13, there are no third-party beneficiaries.
16.10 Publicity
Neither party may use the other party's name, logo, or trademarks in any public announcement or marketing material without prior written consent, except that TBMC may identify Customer as a customer in confidential investor or financing materials.
16.11 Subcontractors
TBMC may use subcontractors to fulfill its obligations and exercise its rights, but remains responsible for their compliance with these Terms.
16.12 Prevailing Language
If these Terms are translated into any language other than English, the English version controls.