These Terms of Service constitute the entire agreement and understanding with respect to the use of any or all of the Services, and any manner of accessing them via the Site, between you and one of the following Parties:
a) BFXWW Inc. ("BFXWW"), unless you meet one or more of the criteria in paragraph (b); or,
b) BFXNA Inc. ("BFXNA") if you meet one or more of the following criteria:
1) you are a U.S. Person, as defined below;
2) your account is regarded as a U.S. Account, as defined below; or
3) you make a deposit, withdrawal, or transfer of Fiat or Digital Tokens to, from, or through any U.S. Financial Institution to facilitate the provision of any of the Services.
If any of the criteria set out in paragraph (b)(1) through (b)(3), above, apply, then you are a "BFXNA Customer." Otherwise, you are a "BFXWW Customer."
Important: Please do not use any deposit addresses created before August 9, 2016 at 19:00:00 UTC to deposit any Digital Tokens to or on the Site. Use only addresses generated by and on the Site after August 9, 2016 at 19:00:00 UTC. Among other limitations of liability, Bitfinex cannot and shall not be responsible or liable for any deposits to any Digital Tokens Wallet(s) or Digital Tokens Address(es) created before August 9, 2016 at 19:00:00 UTC.
PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE ALL BFXNA CUSTOMERS TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
By creating a Digital Tokens Wallet on the Site or by using any of the Services, you acknowledge that you have read, understand, and completely agree to these Terms of Service, as updated and amended from time to time. If you do not agree to be bound by these Terms of Service or with any subsequent amendments, changes, or updates, you may not use any of the Services, and if you do use any of the Services you will be bound by the Terms of Service, as amended; your only recourse in the case of your unwillingness to be bound by these Terms of Service is to stop using all of the Services.
These Terms of Service may be amended, changed, or updated by Bitfinex at any time and without prior notice to you. You should check back often on the Site to confirm that your copy and understanding of these Terms of Service is current and correct. Your non-termination or continued use of any Services after the effective date of any amendments, changes, or updates constitutes your acceptance of these Terms of Service, as modified by such amendments, changes, or updates.
The use of the Site and any Services is void where such use is prohibited by, would constitute a violation of, or would be subject to penalties under applicable Laws, and shall not be the basis for the assertion or recognition of any interest, right, remedy, power, or privilege.
- 1.1.Definitions: In these Terms of Service and all documents incorporated herein by reference, the following words have the following meanings unless otherwise indicated:
- 1.1.1."Affiliate" means, in relation to either Party, a direct or indirect subsidiary of the Party, a holding company of the Party, and any other subsidiary of that holding company;
- 1.1.2."AML" means anti-money laundering, including all Laws applicable to the Parties prohibiting money laundering or any acts or attempted acts to conceal or disguise the identity or origin of; change the form of; or move, transfer, or transport, illicit proceeds, property, funds, Fiat, or Digital Tokens, including but not limited to the promotion of any unlawful activity such as fraud, tax evasion, embezzlement, insider trading, financial crime, bribery, cyber theft or hack, narcotics trafficking, weapons proliferation, terrorism, or Economic Sanctions violations, which may also require internal controls to detect, prevent, report, and maintain records of suspected money laundering or terrorist financing;
- 1.1.3."Anti-Corruption" means all Laws applicable to each Party prohibiting corruption or bribery of Government Officials, kickbacks, inducements, and other related forms of commercial corruption or bribery;
- 1.1.4."Associates" means BFXWW, BFXNA, iFinex, and each and every one of their respective shareholders, directors, officers, Affiliates, employees, contractors, agents, partners, insurers, and attorneys who or that are acting or performing or has acted or performed services for the benefit of or on behalf of the Site;
- 188.8.131.52.where you are a U.S. Person, or your account would be regarded as a U.S. Account, or you make a deposit, withdrawal, or transfer of Fiat or Digital Tokens to, from, or through any U.S. Financial Institution to facilitate the provision of the Services, BFXNA; and,
- 184.108.40.206.where you are not a U.S. Person, and your account would not be regarded as a U.S. Account, and you do not make a deposit, withdrawal, or transfer of Fiat or Digital Tokens to, from, or through any U.S. Financial Institution to facilitate the provision of the Services, BFXWW;
- 1.1.6."Bitfinex Marks" has the meaning set out in paragraph 14 of these Terms of Service;
- 1.1.7."BFXNA Customer" has the meaning set out above at clause (a);
- 1.1.8."BFXWW Customer" has the meaning set out above at clause (b);
- 1.1.9."Controlling Person" means any Person who owns more than a 25 percent interest in any Person or affiliate;
- 1.1.10."CPR Rules" has the meaning set out in paragraph 10.2 of these Terms of Service;
- 1.1.11."CRS" means the common reporting standard or the Standard for Automatic Exchange of Financial Account Information;
- 1.1.12."CTF" means counter-terrorist financing;
- 1.1.13."Digital Tokens" means a digital representation of value that functions as (i) a medium of exchange; (ii) a unit of account; (iii) a store of value, and/or (iv) other similar digital representations of rights or assets, which is neither issued nor guaranteed by any country or jurisdiction and does not have legal tender status in any country or jurisdiction, typically including blockchain-based assets or rights including sovereign cryptocurrency or virtual currency such as bitcoins, Litecoins, and ethers;
- 1.1.14."Digital Tokens Address" means an alphanumeric identifier that represents a potential destination for a Digital Tokens transfer, which typically is associated with a user’s Digital Tokens Wallet;
- 1.1.15."Digital Tokens Wallet" means a software application (or other mechanism) that provides a means for holding, storing, and transferring Digital Tokens, including a user’s Digital Tokens Address, Digital Tokens balance, and cryptographic keys;
- 1.1.16."Economic Sanctions" means financial sanctions, trade embargoes, export or import controls, anti-boycott, and restrictive trade measures enacted, administered, enforced, or penalized by any Laws applicable to you or the Site;
- 1.1.17."Eligible Contract Participant" has the meaning set out in Section 1a(18) of the United States Commodity Exchange Act and Rule 1.3 of the United States Commodity Futures Trading Commission, each as amended;
- 1.1.18."FATCA" means the United States Foreign Account Tax Compliance Act, as enacted by Title V, Subtitle A of the Hiring Incentives to Restore Employment Act, P.L 111-147 (2010), as amended;
- 1.1.19."FATCA IGA" means an intergovernmental agreement entered into by the United States and another jurisdiction to implement FATCA;
- 1.1.20."FATF" means the Financial Action Task Force;
- 1.1.21."FIA" means the Financial Investigation Authority of the British Virgin Islands;
- 1.1.22."Fiat" means the money or currency of any country or jurisdiction that is:
- 220.127.116.11designated as legal tender; and,
- 18.104.22.168circulated, customarily used, and accepted as a medium of exchange in the country or jurisdiction of issuance;
- 1.1.23."Financing Order Book" has the meaning set out in paragraph 3.7 of these Terms of Service;
- 1.1.24."Financing Provider" means any provider of financing from and on her own account on the Site;
- 1.1.25."Financing Recipient" means any recipient of financing from a Financing Provider on the Site;
- 1.1.26."FinCEN" means the Financial Crimes Enforcement Network of the U.S. Department of the Treasury;
- 1.1.27."Government" means any national, federal, state, municipal, local, or foreign branch of government, including any department, agency, subdivision, bureau, commission, court, tribunal, arbitral body, or other governmental, government appointed, or quasi-governmental authority or component exercising executive, legislative, juridical, regulatory, or administrative powers, authority, or functions of or pertaining to a government instrumentality, including any parasternal company, or state-owned (majority or greater) or controlled business enterprise;
- 1.1.28."Government Approval" means any authorization, license, permit, consent, approval, franchise, concession, lease, ruling, certification, exemption, exception, or waiver by or with any Government necessary to conduct the business of either Party or the execution and delivery of the Services under this Terms of Service;
- 1.1.29."Government Official" means an officer or employee of any Government, a director, officer, or employee of any instrumentality of any Government, a candidate for public office, a political party or political party official, an officer or employee of a public international organization, and any Person who is acting in an official capacity for any of the foregoing, even if such Person is acting in that capacity temporarily and without compensation;
- 1.1.30."iFinex" means iFinex Inc.;
- 1.1.31."Laws" means all laws, statutes, orders, regulations, rules, treaties, and/or official obligations or requirements enacted, promulgated, issued, ratified, enforced, or administered by any Government that apply to you or the Site;
- 1.1.32."Lien" has the meaning set out in paragraph 5 of these Terms of Service;
- 1.1.33."Losses" has the meaning set out in paragraph 18 of these Terms of Service;
- 1.1.34."OFAC" means Office of Foreign Assets Control of the U.S. Department of the Treasury;
- 1.1.35."Person" includes an individual, association, partnership, corporation, other body corporate, trust, estate, and any form of organization, group, or entity cognizable as legal personalities;
- 1.1.36."Prohibited Jurisdictions" means Cuba; Democratic People’s Republic of Korea (North Korea); Iran; Syria; Pakistan; the Government of Venezuela; and Crimea
- 1.1.37."Prohibited Use" has the meaning set out in paragraph 12 of these Terms of Service;
- 1.1.38."Sanctions List" means the "Specially Designated Nationals and Blocked Persons" ("SDN") List and the Non-SDN List, including the "Sectoral Sanctions Identifications List", published by OFAC; the Section 311 Special Measures for Jurisdictions, Financial Institutions, or International Transactions of Primary Money Laundering Concern published by FinCEN; and, any other foreign terrorist organization or other sanctioned, restricted, or debarred party list published by the FIA, or under Economic Sanctions, AML, or CTF Laws of or by Governments of the United States, the British Virgin Islands, the United Nations, or any other jurisdiction or Government, as applicable to you or to the Site, as amended, supplemented, or substituted from time to time;
- 1.1.39."Sanctioned Person" refers to any Person or Digital Tokens Address that is: (i) specifically listed in any Sanctions List; or (ii) directly or indirectly owned 50 percent or more by any Person or group of Persons in the aggregate, or a Digital Tokens Wallet associated with such Person or Persons, referred to in any Sanctions List, or Government or Government Official of any Prohibited Jurisdiction, and (iii) that is not subject to any Government Approval or otherwise not sanctioned, restricted, or penalized under applicable Laws;
- 1.1.40."Terms of Service" means these terms and conditions of service, as they may be changed, amended, or updated from time to time, including the following Site policies and pages: the API Terms of Service; the Risk Disclosure Statement; the Anti-Spam Policy; the Law Enforcement Requests Policy and, the Fees Schedule;
- 1.1.41."Territory or Insular Possession of the United States" means the Commonwealth of Puerto Rico; the U.S. Virgin Islands; Guam; the Commonwealth of the Northern Mariana Islands; and all other territories and possessions of the United States, other than the Indian lands (as that term is defined in the Indian Gaming Regulatory Act);
- 1.1.42."Trading Order Book" has the meaning set out in paragraph 3 of these Terms of Service;
- 1.1.43."United States" means the several states of the United States and the District of Columbia;
- 1.1.44."U.S. Account" means any account that is held by one or more U.S. Persons or non-U.S. entities that have one or more Controlling Persons who is a U.S. Person;
- 1.1.45."U.S. Citizen or U.S. Resident" includes any U.S. citizen, U.S. lawful permanent resident, individual who meets the “substantial presence” test described in section 7701(b)(3) of the U.S. Internal Revenue Code of 1986 (as amended), protected individual under section 1324b(a)(3) of the U.S. Immigration and Nationality Act, or individual who holds a passport issued by the United States Government;
- 1.1.46."U.S. Financial Institution" means any U.S. Person and any of its affiliates, branches, offices, or agents incorporated, organized, or located in the United States or Territory or Insular Possession of the United States that is engaged in the business of: (i) accepting deposits, (ii) making, granting, transferring, holding, or brokering remittances, loans, or credits, or (iii) purchasing or selling foreign exchange, securities, commodity futures or options, or procuring purchases and sellers thereof, whether as principal or agent, and this term applies to affiliates, branches, offices, and agencies of any foreign financial institution that are located in the United States or Territory or Insular Possession of the United States, but not such foreign financial institution’s affiliates, branches, offices, or agencies located outside the United States and Territory or Insular Possession of the United States;
1.1.47."U.S. Person" means:
- 22.214.171.124.a U.S. Citizen or U.S. Resident;
- 126.96.36.199.a corporation, partnership, or other entity established or organized in or under the Laws of the United States;
- 188.8.131.52.any estate of a decedent who was a citizen or a resident of the United States;
- 184.108.40.206.any trust if (i) a court within the United States is able to exercise primary supervision over the administration of the trust, and (ii) one or more United States Persons have the authority to control all substantial decisions of the trust; or
- 220.127.116.11.any Person organized or incorporated outside the United States and the Territory or Insular Possession of the United States in which any of the foregoing, whether singularly or in the aggregate, directly or indirectly holds a 50 percent or greater equity interest by votes or value, holds a majority of seats or memberships on the board of directors of the entity, or authorizes, establishes, directs, or otherwise controls the actions, policies, personnel decisions, or day-to-day operations of the Person;
- 1.1.48"you" or "your" means the user.
- 1.2Headings: The headings and sub-headings in these Terms of Service are for ease of reference only and are not to be taken into account in the construction or interpretation of any provision or provisions to which they refer.
- 1.3Extended Meanings: Unless otherwise specified in these Terms of Service, words importing the singular include the plural and vice versa and words importing gender include all genders.
- 1.4Governing Law: These Terms of Service shall be governed by and construed and enforced in accordance with the Laws of the British Virgin Islands, and shall be interpreted in all respects as a British Virgin Islands contract. Any dispute, controversy, claim or action arising from or related to your use of the Site or these Terms of Service likewise shall be governed by the Laws of the British Virgin Islands, exclusive of choice-of-law principles.
- 2Licence to Use the Site: If you comply with these Terms of Service, Bitfinex grants you the limited right to use the Site and the Services. The right to use the Site and the Services is a personal, restricted, non-exclusive, non-transferable, non-sublicensable, revocable, limited licence, and it is subject to the limitations and obligations in these Terms of Service. Nothing in these Terms of Service gives you any licence (other than as set out in this paragraph), right, title, or ownership of, in, or to the Site, any of the Services, or the Bitfinex Marks. The Site may suspend or terminate the Services to you, your Digital Tokens Wallet, or to any of your Digital Tokens Address at its sole discretion, as required by applicable Laws or where Bitfinex determines that you have violated, breached, or acted inconsistent with any of these Terms of Service.
Trading & Financing Activities: The Site is a trading environment for the spot purchase and sale of Digital Tokens. The Site permits both unfinanced and financed transactions. Unfinanced purchases are fully funded by trading participants through Fiat funds deposited by you from a Digital Tokens Address or otherwise into a Digital Tokens Wallet. For example, if you deposit $100.00 into your Digital Tokens Wallet on the Site, you may then purchase $100.00 worth of Digital Tokens in an unfinanced transaction. Purchases and sales of Digital Tokens Wallet on the Site, whether in an unfinanced transaction or a financed transaction, are settled by actual delivery of the full amount of the Digital Tokens by the seller to the purchaser’s Digital Tokens Wallet against payment in full by the purchaser to the seller’s Digital Tokens Wallet.
Important: Financing is not allowed where prohibited by applicable Laws. U.S. Persons or persons regarded as having any U.S. Account(s) may not be Financing Recipients on the Site. Furthermore, the following Persons are prohibited from depositing to, withdrawing from, or trading or providing or taking financing for any Digital Tokens Wallet on the Site:
- 3.1Persons domiciled or ordinarily resident in, certain nationals of, or the Governments or Government Officials of Prohibited Jurisdictions;
- 3.2any Person that resides, is located, has a place of business, or conducts business in the State of New York; and,
- 3.3U.S. Persons.
Any individual who is a U.S. Person and, effective August 15, 2018, any entity that is a U.S. Person is prohibited from using the Site or any Services, including but not limited to exchange trading services using a Digital Tokens Wallet on the Site. Exceptions to this policy may be made by Bitfinex, in its sole discretion, for Eligible Contract Participants only, which shall be customers solely of BFXNA.
For the avoidance of doubt, as defined above, U.S. Persons (including but not limited to United States Citizens or United States Residents) are prohibited from using the Site or any Services, including but not limited to exchange trading services. In addition, where you are not a U.S. Person and your account would not be regarded as a U.S. Account, but Bitfinex knows or has reason to know that you are making a deposit, withdrawal, or transfer of Fiat or Digital Tokens to, from, or through any U.S. Financial Institution to facilitate the provision of the Services to you, then you may be regarded as a customer of BFXNA and prohibited from using the Site or any Services, at the sole discretion of Bitfinex.
- 3.4Financed transactions in Digital Tokens are permitted through the Site’s platform-enabled, peer-to-peer financing functionality. Financing Providers may offer financing from and on their own Digital Tokens Wallet if they so choose. Financing Recipients may accept financing from Financing Providers for up to 70% of the value of a Digital Tokens purchase. For example, if you deposit $30.00 to the Site, you may then obtain financing in an amount not exceeding $70.00 in order to buy $100.00 worth of Digital Tokens in a financed transaction. In other words, you may accept financing equal to a maximum total Digital Tokens -to-equity ratio of 3 1/3 to 1.
- 3.5Shorting is another type of financed transaction permitted on the Site. In a typical ‘long sale’ of Digital Tokens, the seller enters into a regular spot trade of Digital Tokens and settles the transaction by delivering Digital Tokens that the seller owns outright. In a ‘short sale’ of Digital Tokens, the seller also enters into a regular spot sale of Digital Tokens, except that the transaction is settled by delivering Digital Tokens that the seller has borrowed.
- 3.6Digital Tokens can be borrowed for purposes of short sales through the Site’s peer-to-peer financing functionality. The Digital Tokens borrower may seek offers or make a bid to borrow Digital Tokens on the Financing Order Book. Digital Tokens borrowers are not permitted to borrow more than 70% of the Digital Tokens sold in a short sale. The Fiat proceeds of any short sale serve as collateral for the borrowing of the Digital Tokens until those Digital Tokens are repaid.
- 3.7Bitfinex enables users to utilize third party peer-to-peer financing from other participants on the Site to trade Digital Tokens. Financing Recipients may obtain financing in one of two general ways: they may place bids for financing on the Site’s separate, peer-to-peer financing order book (the "Financing Order Book"); or, they may elect to be automatically matched through the Site’s order matching engine with one or more Financing Providers on the Financing Order Book at the best prevailing price on the Financing Order Book. Although Bitfinex is not a party to these financing contracts, Bitfinex enforces the contracts established between Financing Providers and Financing Recipients on the Financing Order Book.
- 3.8The Financing Order Book operates independent of the spot contract trading order book (the "Trading Order Book"). Once the desired financing is secured by a Financing Recipient, both financed and unfinanced transactions on the Trading Order Book are indistinguishable from each other to the trade matching engine.
- 3.8.1The amount of the financing, the terms of the financing, and the interest rate are all commercial terms negotiated through the Financing Order Book between Financing Providers and Financing Recipients. For instance, assume that A has $30.00 (in dollars) in her Digital Tokens Wallet on the Site. A obtains $70.00 in financing at X interest rate for Y term on the Financing Order Book (thereby becoming a Financing Recipient) from B, a Financing Provider. With that aggregate amount of $100.00, A may purchase $100.00 in Digital Tokens on the Trading Order Book from C, or from one or more other sellers. A has the right to repay the financing (including any accrued interest) at any time without pre-payment or other penalty. Obtaining financing does not create any obligation to purchase Digital Tokens on the Trading Order Book. A may also replace financing from B at any time with more favorable financing.
- 3.8.2In the above example, the Digital Tokens purchased by A (for $100.00) are subject to a Lien in favor of B up to the total amount of financing secured from B ($70.00 plus any interest component). A may remove any amount of Digital Tokens from the Site or the user’s Digital Tokens Wallet that is not subject to the Lien.
- 3.8.3A may sell her Digital Tokens and repay the loan. Any profit or loss realised from selling the Digital Tokens shall be settled against A's balances.
- 3.8.4Alternatively, A could satisfy the Lien and unencumber the Digital Tokens by repaying the financing used to purchase the Digital Tokens. Unencumbering the Digital Tokens simply refers to the process of using some combination of unrealized gain or additionally deposited Fiat funds, or both, for the purposes of paying off the financing and removing the Lien.
Risks and Limitation of Liability: Important: This paragraph is in addition to the Risk Disclosure Statement. Trading markets in Digital Tokens are volatile and shift quickly in terms of price, liquidity, market depth, and trading dynamics. You are solely responsible and liable: for any and all trading and non-trading activity on the Site and for your Digital Tokens Wallet on the Site; and, for knowing the true status of any position or contract with any other party on the Site, even if presented incorrectly by the Site at any time. You acknowledge and agree: to be fully responsible and liable for your trading and non-trading actions and inactions on the Site and all gains and losses sustained from your use of the Site and any of the Services; to be responsible for any negative balance in your Digital Tokens Wallet(s) on the Site; to be fully responsible and liable for all of your obligations with respect to any financing activities on the Site; and, to be fully responsible for safeguarding access to, and any information provided through, the Site and any of the Services, including, but not limited to, Digital Tokens Wallet, Digital Tokens Address, private keys, usernames, passwords, and bank account details.
There is no guarantee against losses on the Site. You may lose more than is in your various Digital Tokens Wallets on the Site if you engage in financing on the Site or if there is a force majeure event. When financing is used for trading, the loan carries risk if, among other things, the value of your Digital Tokens drops. If the value of your Digital Tokens drops below a certain level, you are responsible for responding to this market circumstance with cash or additional Digital Tokens satisfactory to Bitfinex. Failure to respond can result in the forced-liquidation of Digital Tokens in any of your Digital Tokens Wallet(s). Bitfinex cannot guarantee to stop losses even with the ability to force-liquidate any of your positions (due to, for example, market volatility and liquidity). Bitfinex will not be and is not responsible for any Financing Provider losing Fiat, funds, or Digital Tokens to any Financing Recipient on the Site or for any losses incurred by a Financing Recipient or any other party on the Site.
- 5Agency: Bitfinex generally does not act as principal, counterparty, or market-maker in the transactions effected through trading on Bitfinex or in providing financing for financed trading on Bitfinex. However, Bitfinex administers and enforces contracts among Parties engaged in financing activities on the Site. You hereby irrevocably appoint Bitfinex to act as your exclusive agent in respect of any contract on the Site in which you are a Financing Recipient. Specifically, you hereby grant Bitfinex agency, and you authorize and instruct Bitfinex: to implement, levy, monitor, and maintain a lien on all Fiat amounts and Digital Tokens in your name or control in any Digital Tokens Wallet on the Site in favor of one or more Financing Providers (a "Lien"); and, to liquidate any Digital Tokens in your name or control in any Digital Tokens Wallet on the Site if necessary to ensure that any Financing Provider on the Site from whom you have obtained financing is repaid in full.
- 6Satisfaction of Liens: If and when you seek to remove all of your Digital Tokens and Fiat funds from Bitfinex and there is a Lien outstanding against any of your Fiat funds, or Digital Tokens, Bitfinex may satisfy the Lien.
- 7Withdrawals: Irrespective of the nature and form of any withdrawal request, whether initiated by you or otherwise, Bitfinex reserves the right to process and send withdrawals using money or any one or more Digital Tokens. In the course of processing and sending any withdrawals in money or one or more Digital Tokens, Bitfinex may be required to share your user information with other contractual third parties or as required under applicable Laws or demanded upon a lawful request by any Government. You hereby irrevocably grant full permission and authority for Bitfinex to share this information with such contractual third parties, or as required under applicable Laws or demanded upon a lawful request by any Government, and release Bitfinex from any liability, error, mistake, or negligence related thereto.
- 8Liquidations & Losses: If the value of your Digital Tokens drops below a certain level, this may result in one of two actions taken by Bitfinex. First, Bitfinex at all times reserves the right to force-liquidate the Digital Tokens in your Digital Tokens Wallet. Where this occurs, your Digital Tokens will be seized by Bitfinex and used to repay any outstanding amounts due to your Financing Providers. Second, where you have negative equity, or where Bitfinex determines in its sole discretion that, upon liquidation, you would likely have negative equity—that is, you fall below a certain maintenance requirement—in one or more or a combination of positions, Bitfinex reserves the right to seize, take over, and assume all of your liabilities and collateral and to dispose of one or more of your positions, or to retain one or more of them, at a profit or loss, at Bitfinex’s risk and expense. Further to your responsibility for all trading and financing activity and inactivity on the Site, any action may be taken by Bitfinex pursuant to this paragraph at any time with or without notice to you, in Bitfinex’s sole discretion.
- 9Inactivity Fee: Where you have not traded on the Site or engaged in any funding activity on the Site for an uninterrupted period of one year, Bitfinex thereafter reserves the right to charge and obtain from you an inactivity fee of $5.00 per month, with or without notice to you. This fee will be taken from the Digital Tokens and other property that you hold on the Site.
- 10Resolution of Disputes:
- 10.1If you are a BFXWW Customer, any dispute, claim, controversy or action arising out of or related to (a) the Terms of Service or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your account(s), the operations and Services of the Site, or (c) your access to or use of the Services at any time, shall be subject to the exclusive jurisdiction of the courts of the British Virgin Islands. For the avoidance of doubt, and without limiting the generality of the foregoing, this provision expressly applies to any claim, whether in tort, contract or otherwise, against Bitfinex. You irrevocably and unconditionally agree and consent to the jurisdiction and venue of the courts of the British Virgin Islands, and you waive any objections thereto, including under the doctrine of forum non conveniens or other similar doctrines. You and Bitfinex agree that any party hereto may bring claims against the others only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. No adjudicator may consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Any relief awarded to any one Bitfinex user cannot and may not affect any other Bitfinex users.
- 10.2If you are a BFXNA Customer, any dispute, claim or controversy arising out of or relating to (a) the Terms of Service or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your account(s), the operations and Services of the Site, or (c) your access to or use of the Services at any time, shall be subject to and finally resolved by confidential arbitration before a sole arbitrator in accordance with the International Institute for Conflict Prevention and Resolution Rules for Non Administered Arbitration, as amended from time to time (the "CPR Rules"). The interpretation and enforceability of this arbitration provision shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. Issues of arbitrability and enforceability of this arbitration provision shall be decided by the arbitrator in the first instance. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The seat or legal place of the arbitration shall be San Diego, California, unless otherwise agreed by the parties. The language of the arbitral proceedings shall be English. You agree to the appointment of a single arbitrator selected in accordance with the CPR Rules. The arbitrator may award any relief that a court of competent jurisdiction could award, including attorneys’ fees when authorized by law, and the arbitral decision may be enforced in court. For claims less than $15,000, BFXNA shall reimburse you for all initiating filing fees that are in excess of fees you would have paid if you were proceeding in court, provided however, should you be deemed to be the losing party, the filing fees reimbursed by BFXNA shall be added to the final arbitrator’s costs and fees award. The prevailing party shall be entitled to its costs of the arbitration (including the arbitrator’s fees) and its reasonable attorney’s fees and costs. You and Bitfinex agree that any party hereto may bring claims against the others only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. No class arbitration is permitted, and no arbitrator may consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Any relief awarded to any one Bitfinex user cannot and may not affect any other Bitfinex users.
- 11JURY TRIAL WAIVER: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING OF ANY KIND WHATSOVER ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR ANY BREACH THEREOF, ANY USE OR ATTEMPTED USE OF THE SITE OR THE SERVICE BY YOU, AND/OR ANY OTHER MATTER INVOLVING THE PARTIES.
- 12Prohibited Uses: You may not:
- 12.1use the Site or any Services in order to disguise the origin or nature of illicit proceeds of, or to further, any breach of applicable Laws, or to transact or deal in, any contraband Digital Tokens, Fiat, funds, property, or proceeds;
- 12.2use the Site or any Services if any applicable Laws, including but not limited to AML Laws, CTF Laws, Anti-Corruption Laws, Economic Sanctions Laws, prohibit, penalize, sanction, or expose the Site to liability for any Services furnished or offered to you or any of your Digital Tokens Wallet(s) or Digital Tokens Address(es) under these Terms of Service;
- 12.3use the Site or any of the Services, or any financial services of any U.S. Financial Institution, whether or not an Affiliate or Associate of Bitfinex, to facilitate, approve, evade, avoid, or circumvent any applicable Laws, including but not limited to AML Laws, CTF Laws, Anti-Corruption Laws, and Economic Sanctions Laws;
- 12.4use the Site or any Services to evade taxes under the Laws of the British Virgin Islands, the United States, or any other jurisdiction(s) applicable to you or the Site;
- 12.5trade or obtain financing on the Site, or use any Services, with anything other than Fiat, funds, keys, property, or Digital Tokens that have been legally obtained by you and that belong to you;
- 12.6use the Site or any Services to interfere with or subvert the rights or obligations of Bitfinex or the rights or obligations of any other Site user or any other third party;
- 12.7trade using misleading or inaccurate information presented to the Site or to Bitfinex or take advantage of any technical glitch, malfunction, failure, delay, default, or security breach;
- 12.8use the Site or any Services to engage in conduct that is detrimental to Bitfinex or to any other Site user or any other third party;
- 12.9falsify any account, Digital Tokens Wallet, or Digital Tokens Address registration, exchange, or administration details provided to Bitfinex;
- 12.10falsify or materially omit any information or provide misleading or inaccurate information requested by Bitfinex, including at registration or during the course of administering any Services to you;
- 12.11reverse-engineer, decompile, or disassemble any software running on the Site;
- 12.12cause injury to, or attempt to harm, Bitfinex or any third party through your access to the Site or any Services;
- 12.13have more than one Digital Tokens Wallet on the Site, or use any Digital Tokens Wallet on a one-time, ‘throwaway’ basis; any such additional Digital Tokens Wallets or one time ‘throwaway’ Digital Tokens Wallet may be terminated or suspended at the absolute discretion of Bitfinex;
- 12.14where you are subject to prohibitions or restrictions as set forth in paragraph 3, access the Site or use any Services utilizing any virtual private network, proxy service, or any other third party service, network, or product with the effect of disguising your IP address or location, or access the Site or use any Services using a Digital Tokens Address in or subject to the jurisdiction of any Prohibited Jurisdiction or Government or Government Official thereof; or,
- 12.15violate, cause a violation of, or conspire or attempt to violate these Terms of Service or applicable Laws.
Any use as described in this paragraph shall constitute a "Prohibited Use". If Bitfinex determines that you have engaged in any Prohibited Use, Bitfinex may address such Prohibited Use through an appropriate sanction, in its sole and absolute discretion. Such sanction may include, but is not limited to, making a report to any Government, law enforcement, or other authorities, without providing any notice of you about any such report; confiscation of any Fiat, funds, property, proceeds, or Digital Tokens in any Digital Tokens Wallet that you have on the Site; and, suspending or terminating your access to any Services or Fiat, funds, property, or Digital Tokens from any Digital Tokens Address. Bitfinex may, at its sole and absolute discretion, seize and deliver your property to any applicable Government, law enforcement, or other authorities where circumstances warrant. In addition, should your actions or inaction result in the imposition of economic costs to Bitfinex, you shall pay an amount to Bitfinex so as to render Bitfinex whole, including without limitation, the amount of taxes or penalties that might be imposed on Bitfinex.
- 13Due Diligence Generally, Anti-Money Laundering and Counter-Terrorist Financing: Bitfinex is committed to providing safe, compliant, and reputable Services to identify, detect, prevent, and report on money laundering, terrorist financing, and other improper activities under applicable AML Laws, CTF Laws, Anti-Corruption Laws, and Economic Sanctions Laws. Accordingly, Bitfinex insists on a comprehensive and thorough user due diligence process implementation and ongoing analysis and reporting. By agreeing to these Terms of Service, you shall affirmatively certify whether (i) you are a U.S. Person or your account would be regarded as a U.S. Account or (ii) you are not a U.S. Person and your account would not be regarded as a U.S. Account, and must provide promptly all information requested and necessary to satisfy due diligence requirements and obligations pursuant to applicable Laws and the compliance policies or procedures of Bitfinex. Additionally, Bitfinex may assess whether you will make, or intend to make, a deposit, withdrawal, or transfer of Fiat or Digital Tokens to, from, or through any U.S. Financial Institution to facilitate the provision of the Services, and if applicable, you must provide all information requested and necessary to satisfy due diligence requirements and obligations pursuant to applicable Laws and the compliance policies or procedures of Bitfinex. You agree to provide promptly documentation, information, or records requested by Bitfinex at any time, including, without limitation, a self-certification permitting the determination of tax residence and status under FATCA and under CRS or other applicable Laws. Such information may include, but is not limited to, self-certifications as to Controlling Persons. Bitfinex needs to retain certain information, documentation, and records on file pursuant to applicable Laws and its contractual relationships, and Bitfinex hereby expressly reserves the right to keep such information, documentation, and records. Additionally, Bitfinex monitors for and assesses suspicious or sanctionable transactions under applicable AML, Anti-Corruption, and Economic Sanctions Laws, as well as undertakes mandatory reporting to FinCEN, OFAC, FIA, and international regulators. These undertakings shall apply even when you suspend or terminate your relationship with Bitfinex or abandon your application to have a Digital Tokens Wallet with Bitfinex. Our policies apply to any and all Digital Tokens, Fiat, and other funds or property being exchanged on or through the Site or by any of you, your Affiliates, of any of Bitfinex’s Associates.
Bitfinex reserves the right to refuse registration to, to bar transactions from or to, or to suspend or terminate the administration of Services, Digital Tokens Address, or Digital Tokens Wallet for or with, any user for any reason (or for no reason) at any time, including but not limited to the provisions of paragraphs 12 and 15, subject to any limitations imposed by applicable Laws. Without limiting the generality of the foregoing, this includes, but is not limited to, any transfer, transaction, business, or dealing with a: (i) Sanctioned Person, (ii) a Person from or in jurisdictions that does not meet international AML–CTF standards as set out by the FATF as high-risk, non-cooperative, and strategically deficient jurisdictions, including but not limited to the Democratic People’s Republic of Korea (North Korea), Ethiopia, Iran, Iraq, Serbia, Sri Lanka, Syria, Trinidad & Tobago, Tunisia, Vanuatu, or Yemen; (iii) Person that is a Government Official or Politically Exposed Person within the meaning of the FATF’s 40 Recommendations; (iv) Person that presents a risk of any exposure to penalties, sanctions, or other liabilities under AML Laws, CTF Laws, Anti-Corruption Laws, Economic Sanctions Laws, or tax Laws that may apply; (v) Person that Bitfinex determines is acting in the United States or Territory or Insular Possession of the United States (whether or not by, to, through, or from any U.S. Financial Institution) in violation of, causing any other Person, including any of the Associates, to violate, attempting or conspiring to violate, or evading or circumventing these Terms of Service or applicable Laws; and (vi) any Person that fails to meet any user due diligence standards, requests, or requirements of Bitfinex, or otherwise appears to be of high risk, including but not limited to any of the foregoing factors. In lieu of refusing registration or ongoing administration of your Digital Tokens Wallet, Bitfinex may perform enhanced due diligence procedures. At all times, you may be subject to enhanced due diligence procedures in your use of the Site and any Service. If you decline to provide requested due diligence information or otherwise do not reply timely or substantively with the documentation or data requested, the Site has the absolute discretion to suspend or terminate Services to you immediately.
- 14Intellectual Property: Bitfinex and the Bitfinex logos, trade names, word marks, and design marks (the "Bitfinex Marks") are trademarks of iFinex. You agree not to appropriate, copy, display, or use the Bitfinex Marks or other content without express, prior, written permission to do so. Unless otherwise indicated, all materials on the Site are © iFinex.
- 15Your Representations & Warranties: You represent and warrant to Bitfinex as follows:
- 15.1that, if you are an individual user, you are 18 years of age or older and that you have the capacity to contract under applicable Laws;
- 15.2that, if you are registering to use the Site on behalf of a legal entity, (i) such legal entity is duly organized and validly existing under the applicable laws of the jurisdiction of its organization; and (ii) you are duly authorized by such legal entity to act on its behalf;
- 15.3that you understand the risks associated with using the Site, that you are not prohibited or restricted from using the Site by paragraph 3 of these Terms, and that you are not otherwise prohibited by applicable Laws from using the Site;
- 15.4that you will not use the Site or any Services in order to conceal or disguise the origin or nature of proceeds of crime or terrorist financing, or to further, any breach of applicable AML Laws or CTF Laws, or to deal in any unlawful Digital Tokens, Fiat, property, funds, or proceeds;
- 15.5that you will not trade or obtain financing on the Site or use any Services with anything other than Fiat, funds, or Digital Tokens that have been legally obtained by you and that belong to you;
- 15.6that, to the extent not penalized by or in conflict with United States Laws, you are currently in compliance with, and must, at your own cost and expense, comply with all Laws that relate to or affect the Services conducted under these Terms of Service, including but not limited to AML Laws, CTF Laws, Anti-Corruption Laws, Economic Sanctions Laws, or tax Laws, including FATCA and CRS;
- 15.7that you consent to any and all tax and information reporting under AML Laws, CTF Laws, Anti-Corruption Laws, Economic Sanctions Laws, or tax Laws, including FATCA and CRS, as Bitfinex may reasonably determine;
- 15.8that neither you nor any of your Affiliates shall use any Digital Tokens, Fiat, property, proceeds or funds subject to the Services of the Site directly or indirectly (i) on behalf of or for the benefit of a Sanctioned Person or any Person subject to the jurisdiction of a Prohibited Jurisdiction, except where authorized under any Government Approval or not restricted by applicable Laws; (ii) in violation of or as prohibited, restricted, or penalized under applicable Economic Sanctions Laws; or (iii) in any way that would violate, be inconsistent with, penalized under, or cause the omission of filing of any report required under applicable AML Laws, CTF Laws, or Economic Sanctions Laws;
- 15.9that you have not (i) violated; (ii) been fined, debarred, sanctioned, the subject of Economic Sanctions-related restrictions, or otherwise penalized under; (iii) received any oral or written notice from any Government concerning actual or possible violation by you under; or (iv) received any other report that you are the subject or target of sanctions, restrictions, penalties, or enforcement action or investigation under, any applicable Laws, including AML Laws, CTF Laws, Anti-Corruption Laws, or Economic Sanctions Laws;
- 15.10hat neither you nor any of your Affiliates is: (i) itself or owned or controlled by a Sanctioned Person; (ii) involved in any transaction, transfer, or conduct, whether or not by using or receiving the Services from any Digital Tokens Wallet or Digital Tokens Address, that is likely to result in you or your Affiliates becoming a Sanctioned Person; or (iii) residing or domiciled in, or transferring Digital Tokens, Fiat, funds, or property to, from, or through any Digital Tokens Wallet, Digital Tokens Address, or other account in, a Prohibited Jurisdiction or Government or Government Official of a Prohibited Jurisdiction;
- 15.11that neither you nor any of your Affiliates has directly or indirectly offered, promised, given, or authorized any payment, or offered, promised, given, or authorized the giving of anything else of value, including any Digital Tokens, to a Government Official or individual employed by another entity in the private sector in violation of any applicable Anti-Corruption Laws;
- 15.12that you will not falsify any Digital Tokens Wallet registration or administration details provided to Bitfinex;
- 15.13that you will not falsify or materially omit any information or provide misleading or inaccurate information requested by Bitfinex in the course of, directly or indirectly relating to, or arising from your activities on the Site or use of any Services, including at registration or during administration or other due diligence processes, and that if any information provided to Bitfinex becomes incorrect, you will promptly provide corrected information to Bitfinex;
- 15.14that any trading or other instructions received or undertaken through your login credentials or from your authorized e-mail address on file with Bitfinex are deemed to be valid, binding, and conclusive, and that Bitfinex may act upon those instructions without any liability or responsibility attaching to it;
- 15.15that you will fairly and promptly report all income associated with your activity on the Site pursuant to applicable Laws and pay any and all taxes exigible thereon; and
- 15.16that you will accurately and promptly inform Bitfinex if you know or have reason to know whether any of the foregoing representations or warranties no longer is correct or becomes incorrect.
- 16No Representations & Warranties by Bitfinex: Bitfinex makes no representations, warranties, or guarantees to you of any kind. The Site and the Services are offered strictly on an as-is, where-is basis and, without limiting the generality of the foregoing, are offered without any representation as to merchantability or fitness for any particular purpose.
- 17No Advice: Bitfinex does not provide any investment advice or advice on trading techniques, models, algorithms, or any other schemes.
- 18Limitation of Liability & Release: Important: Except as may be provided for in these Terms of Service, Bitfinex assumes no liability or responsibility for and shall have no liability or responsibility for any claim, application, loss, injury, delay, accident, cost, business interruption costs, or any other expenses (including, without limitation, attorneys’ fees or the costs of any claim or suit), nor for any incidental, direct, indirect, general, special, punitive, exemplary, or consequential damages, loss of goodwill or business profits, work stoppage, data loss, computer failure or malfunction, or any and all other commercial losses (collectively, referred to herein as "Losses") directly or indirectly arising out of or related to:
You hereby agree to release the Associates from liability for any and all Losses, and you shall indemnify and save and hold the Associates harmless from and against all Losses. The foregoing limitations of liability shall apply whether the alleged liability or Losses are based on contract, negligence, tort, unjust enrichment, strict liability, violation of law or regulation, or any other basis, even if the Associates have been advised of or should have known of the possibility of such losses and damages, and without regard to the success or effectiveness of any other remedies.
- 18.1these Terms of Service;
- 18.2the Site, and your use of it;
- 18.3the Services, and your use of any of them;
- 18.4the real or perceived value of any currencies or Digital Tokens traded on the Site, or the price of any Digital Token displayed on the Site at any time;
- 18.5any inaccurate, misleading, or incomplete statement by Bitfinex or on the Site regarding your Digital Tokens Wallet, whether caused by Bitfinex’s negligence or otherwise;
- 18.6any failure, delay, malfunction, interruption, or decision (including any decision by Bitfinex to vary or interfere with your rights) by Bitfinex in operating the Site or providing any Service;
- 18.7any stolen, lost, or unauthorized use of your Digital Tokens Wallet information, any breach of security or data breach related to your Digital Tokens Wallet information, or any criminal or other third party act affecting Bitfinex or any Associate; or,
- 18.8any offer, representation, suggestion, statement, or claim made about Bitfinex, the Site, or any Service by any Associate.
- 19No Waiver: Any failure by Bitfinex to exercise any of its respective rights, powers, or remedies under these Terms of Service, or any delay by Bitfinex in doing so, does not constitute a waiver of any such right, power, or remedy. The single or partial exercise of any right, power, or remedy by Bitfinex does not prevent either from exercising any other rights, powers, or remedies.
- 20Force Majeure: Bitfinex is not responsible for damages caused by delay or failure to perform undertakings under these Terms of Service when the delay or failure is due to fires; strikes; floods; power outages or failures; acts of God or the state’s enemies; lawful acts of public authorities; any and all market movements, shifts, or volatility; computer, server, or Internet malfunctions; security breaches or cyberattacks; criminal acts; delays or defaults caused by common carriers; acts or omissions of third parties; or, any other delays, defaults, failures or interruptions that cannot reasonably be foreseen or provided against. In the event of force majeure, Bitfinex is excused from any and all performance obligations and these Terms of Service shall be fully and conclusively at an end.
- 21Assignment: These Terms of Service, and any of the rights, duties, and obligations contained herein, are not assignable by you without prior written consent of Bitfinex. These Terms of Service, and any of the rights, duties, and obligations contained herein, are freely assignable by Bitfinex without notice or your consent. Any attempt by you to assign these Terms of Service without written consent is void.
- 22Severability: If any provision of these Terms of Service or part thereof, as amended from time to time, is determined to be invalid, void, or unenforceable, in whole or in part, by any court of competent jurisdiction, such invalidity, voidness, or unenforceability attaches only to such provision to the extent of its illegality, unenforceability, invalidity, or voidness, as may be, and everything else in these Terms of Service continues in full force and effect.