Terms of Service for MicroStrategy Lightning Rewards Customers
Terms of Service for MicroStrategy Lightning Rewards Customers
Terms of Service for MicroStrategy Lightning Rewards Customers
River Financial Inc.
80 E. Rich Street, Suite 600
Columbus, OH 43215
Effective Date: Mar 7, 2024
River Financial Inc.
80 E. Rich Street, Suite 600
Columbus, OH 43215
Effective Date: Mar 7, 2024
River Financial Inc.
80 E. Rich Street, Suite 600
Columbus, OH 43215
Effective Date: Mar 7, 2024
1. Introduction
These Terms of Service (the “Terms” or “Agreement”) will govern your rights and obligations relating to your access to and use of the secure Bitcoin custody and Lightning-enabled transaction processing accounts provided by River, including related transmission and custody services provided by us, in connection with your subscription to MicroStrategy Lightning Rewards (collectively, the “Services” or “Financial Services”). Use of additional services provided by River may be subject to additional terms and conditions.
BY REGISTERING FOR AN ACCOUNT, ACCEPTING THIS AGREEMENT OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND RESPONSIBILITIES, INCLUDING A LIMITATION OF OUR LIABILITY. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES.
All references in these Terms to “we,” “us,” “our,” or “River” refer to River Financial Inc., a Delaware corporation, and our affiliated entities, as applicable. The term “you,” “your,” or “client” refers to any individual or entity that accesses the Services. If you are accessing the Services on behalf of an entity or other organization, references to “you,” “your,” or “client” are to such entity or organization, and you are accepting this Agreement for that entity or organization and representing to River that you have the authority to bind that entity or organization to this Agreement. River and client may each be referred to herein as a “Party” and together as the “Parties”.
Change to these terms
We reserve the right to change these Terms from time to time. We will provide notice to you via the Services if the Terms are changed or updated. If you continue to use the Services, you consent to the new Terms, as modified. Any changes to these Terms will become effective on the “Effective Date” indicated above. If you continue to use the Services after the Effective Date, you consent to the new Terms. We will always have the latest Terms posted on the Services.
The Services
The Services provide clients with one or more secure Bitcoin custody and Lightning-enabled transaction processing accounts, which may be funded via USD or via Bitcoin (as set forth in the Terms) and which may be accessible through our website or through the River API interface with the MicroStrategy Lightning Rewards platform. By accepting this Agreement, you authorize River to connect your River Lightning account with the MicroStrategy Lightning Rewards platform via the River API interface.
3.1 Overview and Provision of Services.
We represent and warrant to you that we: (i) will provide the Services in a professional and workmanlike manner that conforms with industry standards; (ii) will perform Services that will not infringe the copyrights, patents, trade secrets, or other intellectual property rights of any third party; (iii) will use best efforts to provide the Services using security best practices in the architecture, design, implementation and testing of the software and other components of the Services; (iv) are, to our best knowledge, currently in good standing with all relevant government agencies, departments, regulatory or supervisory bodies in all relevant jurisdictions where we do business; and (v) maintain and utilize leading cybersecurity measures, and to the best of our knowledge the Services are free of viruses and other harmful components and code.
We will use best efforts to ensure that the Services are always available, and to notify you when they are unavailable. If you have any questions, concerns or complaints about the Services, your Client Account, these Terms, or anything else, please contact our support team at support@river.com. We may ask for certain information about you and your Client Account to respond to your inquiry.
3.2 Use of the Services.
River grants you a limited, revocable, non-exclusive, non-transferable license, subject to the Terms and applicable law, to access and use the Services for the purposes of (i) purchasing Bitcoin with USD to fund your Client Account, (ii) securely storing your Bitcoin with us, (iii) processing Lightning transactions and (iv) marketing the ability to make Lightning transactions.
3.3 Taxes.
Your use of the Services may be subject to certain tax obligations. It is your sole responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct through the Services, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities.
3.4 Recordkeeping.
We will keep accurate and complete records relating to your Client Account and to your use of the Services. Your transaction history will be available to you through the Services.
Your User Account and Your Responsibilities
4.1 Eligibility and Jurisdiction.
The Services are only eligible to clients in those jurisdictions in which they may legally be provided. To see a list of states or jurisdictions where we operate, please visit here. Additionally, you must register for your River account (your “Client Account”) and successfully complete our onboarding process. By signing up for a Client Account, you represent and warrant that your principal place of business is located in a state or jurisdiction in which we operate.
4.2 Account Registration.
Before using the Services, you will be required to register for a Client Account. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it up to date. We reserve the right to suspend or terminate your Client Account according to these Terms if we determine that any information provided by you is inaccurate or incomplete. We may, in our reasonable discretion, refuse to open a Client Account, or limit the number of Client Accounts that you may hold or suspend or terminate any Client Account or the trading of Bitcoin in your account.
4.3 Securing Your Account.
You are responsible for safeguarding your Client Account information, including your access credentials. You agree not to disclose your access credentials to, or share your Client Account with, any third party. You agree to take sole responsibility for any activities or actions initiated in your Client Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your Client Account.
You agree that we will not be liable for any loss or harm that you incur if someone else uses the Services from any of your devices or with your credentials, either with or without your knowledge, and that you will be solely responsible for such use, whether or not you authorized the use.
4.4 Account Verification.
As a regulated financial institution, we are required to obtain information about and verify the identity of our clients. To comply with our BSA/AML obligations, we will request that you provide certain information to us about you. This information will be used by us for the purposes of identity verification and the detection of money laundering, terrorist financing, fraud, or any other financial crimes. You agree that all such information provided by you will be complete and accurate, that you will keep us updated if any of the information you provide changes, and that we may keep a record of such information consistent with our BSA/AML obligations.
In addition to collecting information from you, we are required to take reasonable steps to verify your identity as a client. You expressly authorize River to take any and all actions that we reasonably deem necessary to verify your identity or protect you and/or us against fraud or other financial crime. These may include, but are not limited to, engaging third-party services to assist with such verification efforts, sharing your information with such third parties, and collecting additional information about you from such third parties.
4.5 Enhanced Due Diligence.
Certain clients may be subject to a more rigorous identity verification program (“Enhanced Due Diligence”) consistent with our BSA/AML obligations due to the increased risk of money laundering, fraudulent activity and sanctions risk. In such cases, you agree to comply with River’s requests to provide such information and documentation as is necessary for us, either directly or through our third-party vendors, to complete the Enhanced Due Diligence. You acknowledge that if we determine, in our sole discretion, that you are unable to satisfy the requirements of our Enhanced Due Diligence, certain functionalities of the Services may not be available to you.
4.6 Privacy Policy.
The type of information we collect from and about you as you use the Services, as well as how we use, share and retain that information is set forth in our Privacy Policy. By accessing and using the Services, you grant us the right to use, share and retain the information we collect from and about you as described in these Terms and in our Privacy Policy.
5. Bitcoin Transactions and Custody
5.1 Funding Your Account.
You may fund your account by sending us Bitcoin or U.S. Dollars (“USD”). We accept transfers of USD into your Client Account via Automated Clearing House (“ACH”) transfer or wire transfer. If you choose to send USD, we will sell you Bitcoin in accordance with the Terms. If you choose to send Bitcoin to our custody, you should verify the details of any Bitcoin transaction prior to submitting it to us.
5.2 Ownership of Bitcoin in our Custody.
River will provide secure custody for your Bitcoin. You agree and acknowledge that the Services only support Bitcoin, and no other digital currencies.
You will continue to own the Bitcoin deposited into your Client Account, and River shall have no rights to such Bitcoin other than as necessary to provide the Services. You will retain all rights, title, and interest in and to the Bitcoin held by us for your benefit. You have the power to store, sell, or transfer all such Bitcoin. We will, at all times, clearly identify you as the owner of such Bitcoin in our books and records and will segregate your Bitcoin from our digital assets and our other clients’ digital assets in such books and records. Except as required by law or as otherwise set forth in these Terms, we will not sell, transfer, or otherwise dispose of your Bitcoin without your consent. As the owner, you alone bear all risk of loss, including decline of value of the Bitcoin in your Client Account.
For purposes of this Agreement, Bitcoin held in your Client Account will be treated as “financial assets” under Article 8 of the Delaware Uniform Commercial Code (“Article 8”). River will be considered a “security intermediary,” and your Client Account will be considered a “securities account.” River will comply with your instructions with respect to your Client Account, subject to the terms of this Agreement.
5.3 Bitcoin is not an Insured Asset.
You understand and acknowledge that Bitcoin is not subject to protections or insurance provided by the Federal Deposit Insurance Corporation, the Securities Investor Protection Corporation, or any other agency or organization. River will have no responsibility or liability to you or anyone else for any loss in the USD value of the Bitcoin custodied in your Client Account.
5.4 Sending USD to Your Account.
You may transfer USD to your Client Account via ACH or via wire transfer. If you elect to use ACH transfers in connection with the Services, you must designate and connect a valid U.S. bank account to your Client Account. River does not charge a fee for ACH transfers, but is not responsible for any fees charged by your bank.
You may transfer USD to and from your Client Account via wire transfer. River may charge a fee for wire transfers, which we will communicate to you via the Services. River is not responsible for any fees charged by your bank. If you elect to use wire transfers in connection with the Services, you should verify all wire information prior to submitting your transaction. River is not responsible for transfers that do not include the correct wire information. If you have questions, contact our support team at support@river.com.
5.5 Bitcoin Purchases with USD.
When you send USD to your Client Account, River will automatically convert that USD into Bitcoin, and will credit such quantity of Bitcoin to your Client Account.
By sending USD to your Client Account, you are requesting to purchase, directly from River, a quantity of Bitcoin at the applicable Bitcoin buy-price at the time your USD is received by River. River typically receives the USD in your Client Account within one business day of transfer. The actual time of such receipt by River shall ultimately be determined by River in its sole discretion.
We do not make any guarantees or representations as to the Bitcoin price. We determine the buy-price of Bitcoin based on available market information and will use commercially reasonable efforts to secure the most favorable buy-price at such time. River will not be responsible for any differences between the applicable buy-price for any Bitcoin purchase made through the Services and Bitcoin buy-prices listed on any third-party services.
When you buy or sell Bitcoin using the Services, we charge a transaction fee. Our most updated transaction fees are always listed on the Services. We will also notify you of our fees for any transaction before you execute a buy or sell order, and we will include such fees on the receipt we provide to you after the transaction is complete. By using the Services, you agree that we may collect our transaction fees by reducing them from your Available Balance. We will provide sufficient capacity to process a reasonable volume of Bitcoin withdrawal requests by you.
Please note that our fees are subject to change. We will provide you notice of changes in our fees by posting the changes to the Services or otherwise communicate them to you in writing. Your continued use of the Services after the effective date of such change will constitute your agreement to pay the updated fees.
5.6 Bitcoin Transfers.
You may initiate Bitcoin transfers using the Services. Please be advised that Bitcoin transactions are not reversible. As such, once a transfer is initiated, it cannot be canceled. You should exercise caution when initiating a transfer; you are solely responsible for ensuring that the recipient is able to receive Bitcoin and that the instructions that you provide us are accurate. River assumes no responsibility for, and shall not be liable to you or any third party, for any Bitcoin that is lost as a result of an incorrect Bitcoin address, Lightning Network invoice, or any other improper transfer instructions. You are responsible for any fees charged by third-parties, including nodes on the Lightning Network, associated with any Bitcoin transfer, and you agree that we may collect such fees by reducing the balance in your Client Account.
6. Termination and Suspension.
You may, in your reasonable discretion, terminate this Agreement by closing your Client Account. Additionally, either Party may terminate this Agreement by providing written notice to the other Party if the other Party commits a material breach of this Agreement that (i) is not capable of cure, or (ii) is capable of cure but that the other Party fails to cure within thirty (30) days after receipt of written notice of such breach.
We reserve the right to take immediate action to limit or prevent your access to our Services if we, in our reasonable discretion, determine that our continued performance under this Agreement may be in violation of Applicable Laws, or if a governmental authority directs us to do so. Circumstances in which we may limit or prevent your access to our Services include, but are not limited to, if we deem that such action is necessary based on: (i) your use of the Services in a way that is unlawful or would potentially expose us to liability; (ii) disruption of the Services by you to others; (iii) your material violation of these Terms or our Privacy Policy; (iv) your violation of any applicable laws, rules, or regulations that may apply to you; and (v) your use of the Services in a way that could cause harm to any person or entity. Such action may include, without limitation, suspending your Client Account or terminating your access to the Services altogether.
Notwithstanding any termination of the Agreement, any provision of these Terms that by its nature and context is intended to survive its termination will so survive. These include, without limitation, provisions related to limitation of our liability, disclaimer of warranties, our intellectual property rights, indemnity and dispute resolution.
7. Intellectual Property
The Services contain important and proprietary property owned by us, including software, that constitutes our trademarks, trade secrets and other associated intellectual property. Nothing in these Terms shall be construed as a conveyance of any ownership right or title in or to our property. We will own and have the unrestricted right to use and incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the Services. Each Party will own and retain all rights in its trademarks, logos and other brand elements (collectively, “Trademarks”). To the extent that a Party grants any rights or licenses to its Trademarks to the other Party in connection with the Agreement, the other Party’s use of such Trademarks will be subject to the reasonable trademark guidelines provided in writing by the Party that owns the Trademarks.
All rights and licenses not granted in the Agreement are expressly reserved.
8. Compliance With Applicable Laws
8.1 Use of the Services.
You represent and warrant that your use of the Services does not and will not conflict with any pre-existing obligation in conflict or in any way inconsistent with the provisions of these Terms. You may only use the Services for their intended purpose, and not for any other purpose. Any non-permitted use of the Services, as determined in our sole discretion, shall be grounds for immediate termination of these Terms and immediate termination of your use of, and access to, the Services. You are only entitled to access and use our Services for lawful purposes.
8.2 Prohibited Conduct.
Each of the Parties will comply with all Applicable Laws (defined herein) in connection with the operation of its business and the exercise of its rights and performance of its obligations under the Agreement. For purposes of this Agreement, “Applicable Laws” means all applicable federal, state, and local laws, statutes, and regulations, and all applicable orders, judgments, decisions, rules, policies, opinions, directives or guidelines passed or issued by any governmental entity or any competent court, as applicable to such Party during the Term of this Agreement, including, without limitation: laws pertaining to anti-money laundering, counter-terrorism financing (“ATF”), export control and economic sanctions; anti-mafia, anti-bribery and anti-corruption statutes, rules or regulations of any national, federal, state or local jurisdiction, including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the U.K. Bribery Act of 2010 (in force on July 1, 2011) (“Anti-Bribery Laws”); the Bank Secrecy Act; the economic and trade sanctions programs administered by the Office of Foreign Assets Control (“OFAC”) of the United States Department of the Treasury; the USA PATRIOT Act; federal and state money transmission and virtual currency laws; the Electronic Fund Transfer Act and the regulations promulgated thereunder; all applicable laws concerning privacy, data security or data protection; and all foreign laws regarding the same.
Without limiting the foregoing, each Party shall comply with any Applicable Laws pertaining to anti-money laundering, counter-terrorism financing, export control and economic sanctions (together “AML”). River may, for the purposes of complying with Applicable Laws and in its sole discretion, impose reasonable limitations and controls upon Client’s use of the Services, such limitations and controls to be immediately noticed to Client in writing. Client shall not use the Services to engage in any dealings with or benefitting any person or entity (i) identified on any sanctions-related list of designated persons, (ii) located, organized or resident in a jurisdiction subject to comprehensive sanctions, or (iii) any person owned or controlled by any person or entity identified in the foregoing clauses (i) or (ii) (a “Sanctions Target”).
9. Representations and Warranties
Each Party represents and warrants to the other that: (i) it has all requisite right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it will exercise its rights and perform its obligations hereunder in full compliance with all Applicable Laws, including, with respect to River and for the avoidance of doubt, all applicable federal money services business laws, state money transmitter laws, federal and international sanctions laws, and applicable payment network rules; (iii) it shall abstain from offering or giving anything of value to any third party for purpose of gaining an improper advantage for the other Party in connection with the matters described in this Agreement; (iv) it is not a government owned or controlled entity and that none of its directors or officers (or any individuals holding functionally equivalent positions) are a Government Official (as defined in applicable Anti-Bribery Laws; (v) its performance under this Agreement will not breach or violate any agreement with a third party; and (vi) each Party will obtain and maintain at their own expense all approvals, permissions, permits, licenses, releases, and other forms of documentation or authorization required for its performance under this Agreement.
Each Party further represents and warrants that it (i) is not a Restricted Party; and (ii) is not controlled by or acting on behalf of any Restricted Party. “Restricted Party” means any person or entity that is (1) listed on any of the lists of persons or entities maintained by the United States government that prohibit such persons or entities from receiving exports or services; or (2) a national or resident of, or an entity or governmental authority in, any country or territory that is or becomes subject to United States export controls for anti-terrorism reasons or with which United States persons are generally prohibited from engaging in financial transactions.
10. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
10.1 Disclaimer.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER RIVER NOR CLIENT MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES.
10.2 Limitation of Liability.
EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREIN, A PARTY’S INTENTIONAL MISCONDUCT OR FRAUD, AND ANY LOSS OF OR LIMITATION OF ACCESS TO ANY BITCOIN DIRECTLY CAUSED BY RIVER’S PROVISION OF SERVICES, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR RELIANCE DAMAGES (OR ANY LOSS OF REVENUE, PROFITS OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, GROSS NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE REASONABLE ALLOCATIONS OF RISK. EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREIN, A PARTY’S INTENTIONAL MISCONDUCT OR FRAUD, AND ANY LOSS OF OR LIMITATION OF ACCESS TO ANY BITCOIN DIRECTLY CAUSED BY RIVER’S PROVISION OF SERVICES, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY WITH RESPECT TO THIS AGREEMENT EXCEED THE GREATER OF (I) THE AMOUNT OF THE FEES PAID OR PAYABLE TO US BY YOU OR ON YOUR BEHALF IN THE TWELVE (12) MONTHS PRIOR TO THE FIRST CLAIM MADE BY YOU AND (II) FIVE THOUSAND DOLLARS ($5,000).
RIVER SHALL BE LIABLE TO YOU FOR THE LOSS OF ANY BITCOIN IN, OR FIAT CURRENCY ON DEPOSIT IN, OR TRANSFERRED FROM, YOUR CLIENT ACCOUNT TO THE EXTENT THAT RIVER CAUSED SUCH LOSS THROUGH ACTION OR INACTION IN BREACH OF THIS AGREEMENT AND RIVER SHALL RETURN TO YOU A QUANTITY OF BITCOIN EQUAL TO THE QUANTITY OF ANY SUCH LOST BITCOIN.
10.3 Indemnification.
Each Party shall indemnify, defend and hold harmless the other Party and its parents, subsidiaries, affiliates and their directors, officers, employees and agents from all third party claims or actions, and any liabilities, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees, expenses and costs) related thereto, arising from (i) the other Party’s material breach of any obligation, representation or warranty contained in this Agreement; (ii) a claim related to the fraud, gross negligence, or willful misconduct of the other Party; (iii) a claim related to the other Party’s failure to comply with Applicable Laws; (iv) a claim related to the other Party’s infringement of a third party’s intellectual property rights; or (v) breach of the confidentiality and/or data security obligations set forth in this Agreement.
The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party has full control and authority over the defense, except that any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party’s prior written consent, such consent not to be unreasonably withheld or delayed. The other Party may join in the defense with its own counsel at its own expense.
11. Confidentiality
Each Party acknowledges that it may have access to certain information and materials concerning the other Party’s business, plans, programs, customers, employees, code and products that are confidential and of substantial value to such Party (referred to in this Section as “Confidential Information”), which information or materials (i) are marked or identified as “confidential” at the time of disclosure by the disclosing Party, or (ii) by their nature, content or circumstances around its disclosure should be reasonably understood to be confidential. The terms of this Agreement, information accessed via the River API, technical specifications and processes of each Party, and all Client data are Confidential Information of both Parties. Each Party agrees to maintain all Confidential Information received from the other, orally, in writing, or in any other form, in strict confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing Party. The receiving Party agrees to take the same precautions to prevent unauthorized access to or use or disclosure of the disclosing Party’s Confidential Information that it takes to protect its own information of a similar kind, but in no event will the receiving Party exercise less than reasonable care. Each Party further agrees to use the Confidential Information only for the purpose of performing its obligations or exercising its rights under this Agreement and to disclose such Confidential Information only to those employees or agents who have a need to know such Confidential Information and are required to protect it against unauthorized disclosure.
Confidential Information does not include anything that (i) is already known by the receiving Party prior to the disclosure without restriction on disclosure or use, (ii) becomes publicly known through no act or fault of the receiving Party, (iii) is received by the receiving Party from a third party without a restriction on disclosure or use and which third party was, to the best of the receiving Party’s knowledge, authorized to disclose the information, or (iv) is independently developed by the receiving Party without reference to any of the disclosing Party’s Confidential Information. The restrictions on use and disclosure shall not apply to Confidential Information that is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, provided that the receiving Party shall first notify the disclosing Party of such disclosure requirement or order (if legally permitted) and use reasonable efforts to obtain confidential treatment for any information that is required to be disclosed. The Parties’ respective obligations of confidentiality shall survive the expiration or early termination of this Agreement for a period of five (5) years thereafter other than with respect to trade secrets, which shall be held in confidence following such period in accordance with this section. Upon termination of this Agreement and except for electronic copies made in the course of normal network backups or as otherwise set forth in this Agreement, the receiving Party will promptly destroy or return, at the sole discretion of the disclosing Party, all Confidential Information of the disclosing Party in the receiving Party’s possession or control.
Neither Party shall make any public statement, press release or other announcement relating to the existence, terms or subject matter of this Agreement without the prior written approval of the other Party.
12. Miscellaneous
12.1 Severability
If, for whatever reason, any term or condition in the Agreement is found unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
12.2 Waiver
The failure to enforce any provision of the Agreement is not a waiver of our right to do so later, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
12.3 Assignment
The Agreement shall be binding on the Parties and their respective successors and permitted assigns. Neither Party shall assign the Agreement, or any right, interest or benefit under this Agreement, without the prior written consent of the other Party, which shall not be unreasonably withheld.
12.4 Relationship of the Parties
The Parties are independent contractors, and neither Party is an agent or representative of the other Party. Neither Party shall have any right to enter into any agreement for or on behalf of, or incur any obligation or liability for, the other Party, except as may be expressly set forth herein.
12.5 Governing Law
This Agreement and all matters related to this Agreement shall be governed by the laws of the State of Delaware without regard to its choice of law rules, except to the extent governed by federal law. This Agreement will not be subject to the United Nations Convention on the International Sale of Goods.
12.6 Notices
Any notice, request or demand under this Agreement will be in writing: (i) to Client at any of the contact addresses (including email) associated with your Client Account (or at any of the contact addresses as updated by the Parties in writing), or (ii) to River, at support@river.com.
12.7 Force Majeure
Neither Party shall be liable for, or be considered in breach of or default under this Agreement due to any failure to perform its obligations (other than its payment obligations) as a result of a cause beyond its reasonable control, including any act of God, public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, pandemic, fire, flood, earthquake, storm or other l
ike event, disruption or outage of communications, power or other utility, labor problem or any other cause which could not have been prevented by the non-performing Party by exercising reasonable care (a “Force Majeure Event”). A Party claiming a Force Majeure Event shall use reasonable diligence to remove the condition that prevents performance and shall not be entitled to suspend performance of its obligations in any greater scope or for any longer duration than is required by the Force Majeure Event. Each Party shall use reasonable efforts to mitigate the effects of such Force Majeure Event, remedy its inability to perform, and resume full performance of its obligations hereunder. A Party suffering a Force Majeure Event shall notify the other Party in writing (“Notice of Force Majeure Event”) as soon as reasonably practicable specifying the cause of the event, the scope of commitments under the Agreement affected by the event, and a good faith estimate of the time required to restore full performance. Except for those commitments identified in the Notice of Force Majeure Event, the Party affected by the Force Majeure Event shall not be relieved of its responsibility to fully perform as to all other commitments in the Agreement.
12.8 Entire Agreement
The Agreement sets forth the entire agreement between the Parties and supersedes any and all prior or contemporaneous agreements, negotiations, discussions or statements of any kind, whether written or oral, with respect to the subject matter hereof.
12.9 Marketing
Upon the prior written consent in each instance, each Party (“Grantor”) grants the other Party (“Grantee”) the right to use Grantor’s name and logo (subject to appropriate trademark attribution) on Grantee’s marketing materials, including Grantee’s website, presentations, case studies, and in sales discussions with prospective clients. In addition, with Grantor prior consent in each instance, Grantor agrees to serve as a reference for Grantee and grants Grantee the right to use Grantor’s testimonials or other statements of support for the Services on the marketing materials described above.
12.10 Electronic Signature and Delivery of Communications
By agreeing to these Terms, you consent to receiving all communications, agreements, disclosures, and notices related to your use of the Services electronically. These may include, but are not limited to, your consent to these Terms, any updates to these Terms and our Privacy Policy, details and notices about your Client Account and transactions, and any other disclosures and notices. We will communicate all electronic disclosures to you by posting them on the River website or via email at the address associated with your Client Account, and are deemed received as of the time and date sent by River.
12.11 Headings
The section headings contained in these Terms are for reference purposes only and shall not affect the meaning or interpretation of these Terms in any way.
1. Introduction
These Terms of Service (the “Terms” or “Agreement”) will govern your rights and obligations relating to your access to and use of the secure Bitcoin custody and Lightning-enabled transaction processing accounts provided by River, including related transmission and custody services provided by us, in connection with your subscription to MicroStrategy Lightning Rewards (collectively, the “Services” or “Financial Services”). Use of additional services provided by River may be subject to additional terms and conditions.
BY REGISTERING FOR AN ACCOUNT, ACCEPTING THIS AGREEMENT OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND RESPONSIBILITIES, INCLUDING A LIMITATION OF OUR LIABILITY. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES.
All references in these Terms to “we,” “us,” “our,” or “River” refer to River Financial Inc., a Delaware corporation, and our affiliated entities, as applicable. The term “you,” “your,” or “client” refers to any individual or entity that accesses the Services. If you are accessing the Services on behalf of an entity or other organization, references to “you,” “your,” or “client” are to such entity or organization, and you are accepting this Agreement for that entity or organization and representing to River that you have the authority to bind that entity or organization to this Agreement. River and client may each be referred to herein as a “Party” and together as the “Parties”.
Change to these terms
We reserve the right to change these Terms from time to time. We will provide notice to you via the Services if the Terms are changed or updated. If you continue to use the Services, you consent to the new Terms, as modified. Any changes to these Terms will become effective on the “Effective Date” indicated above. If you continue to use the Services after the Effective Date, you consent to the new Terms. We will always have the latest Terms posted on the Services.
The Services
3.1 Overview and Provision of Services.
The Services provide clients with one or more secure Bitcoin custody and Lightning-enabled transaction processing accounts, which may be funded via USD or via Bitcoin (as set forth in the Terms) and which may be accessible through our website or through the River API interface with the MicroStrategy Lightning Rewards platform. By accepting this Agreement, you authorize River to connect your River Lightning account with the MicroStrategy Lightning Rewards platform via the River API interface.
We represent and warrant to you that we: (i) will provide the Services in a professional and workmanlike manner that conforms with industry standards; (ii) will perform Services that will not infringe the copyrights, patents, trade secrets, or other intellectual property rights of any third party; (iii) will use best efforts to provide the Services using security best practices in the architecture, design, implementation and testing of the software and other components of the Services; (iv) are, to our best knowledge, currently in good standing with all relevant government agencies, departments, regulatory or supervisory bodies in all relevant jurisdictions where we do business; and (v) maintain and utilize leading cybersecurity measures, and to the best of our knowledge the Services are free of viruses and other harmful components and code.
We will use best efforts to ensure that the Services are always available, and to notify you when they are unavailable. If you have any questions, concerns or complaints about the Services, your Client Account, these Terms, or anything else, please contact our support team at support@river.com. We may ask for certain information about you and your Client Account to respond to your inquiry.
3.2 Use of the Services.
River grants you a limited, revocable, non-exclusive, non-transferable license, subject to the Terms and applicable law, to access and use the Services for the purposes of (i) purchasing Bitcoin with USD to fund your Client Account, (ii) securely storing your Bitcoin with us, (iii) processing Lightning transactions and (iv) marketing the ability to make Lightning transactions.
3.3 Taxes.
Your use of the Services may be subject to certain tax obligations. It is your sole responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct through the Services, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities.
3.4 Recordkeeping.
We will keep accurate and complete records relating to your Client Account and to your use of the Services. Your transaction history will be available to you through the Services.
Your User Account and Your Responsibilities
4.1 Eligibility and Jurisdiction.
The Services are only eligible to clients in those jurisdictions in which they may legally be provided. To see a list of states or jurisdictions where we operate, please visit here. Additionally, you must register for your River account (your “Client Account”) and successfully complete our onboarding process. By signing up for a Client Account, you represent and warrant that your principal place of business is located in a state or jurisdiction in which we operate.
4.2 Account Registration.
Before using the Services, you will be required to register for a Client Account. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it up to date. We reserve the right to suspend or terminate your Client Account according to these Terms if we determine that any information provided by you is inaccurate or incomplete. We may, in our reasonable discretion, refuse to open a Client Account, or limit the number of Client Accounts that you may hold or suspend or terminate any Client Account or the trading of Bitcoin in your account.
4.3 Securing Your Account.
You are responsible for safeguarding your Client Account information, including your access credentials. You agree not to disclose your access credentials to, or share your Client Account with, any third party. You agree to take sole responsibility for any activities or actions initiated in your Client Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your Client Account.
You agree that we will not be liable for any loss or harm that you incur if someone else uses the Services from any of your devices or with your credentials, either with or without your knowledge, and that you will be solely responsible for such use, whether or not you authorized the use.
4.4 Account Verification.
As a regulated financial institution, we are required to obtain information about and verify the identity of our clients. To comply with our BSA/AML obligations, we will request that you provide certain information to us about you. This information will be used by us for the purposes of identity verification and the detection of money laundering, terrorist financing, fraud, or any other financial crimes. You agree that all such information provided by you will be complete and accurate, that you will keep us updated if any of the information you provide changes, and that we may keep a record of such information consistent with our BSA/AML obligations.
In addition to collecting information from you, we are required to take reasonable steps to verify your identity as a client. You expressly authorize River to take any and all actions that we reasonably deem necessary to verify your identity or protect you and/or us against fraud or other financial crime. These may include, but are not limited to, engaging third-party services to assist with such verification efforts, sharing your information with such third parties, and collecting additional information about you from such third parties.
4.5 Enhanced Due Diligence.
Certain clients may be subject to a more rigorous identity verification program (“Enhanced Due Diligence”) consistent with our BSA/AML obligations due to the increased risk of money laundering, fraudulent activity and sanctions risk. In such cases, you agree to comply with River’s requests to provide such information and documentation as is necessary for us, either directly or through our third-party vendors, to complete the Enhanced Due Diligence. You acknowledge that if we determine, in our sole discretion, that you are unable to satisfy the requirements of our Enhanced Due Diligence, certain functionalities of the Services may not be available to you.
4.6 Privacy Policy.
The type of information we collect from and about you as you use the Services, as well as how we use, share and retain that information is set forth in our Privacy Policy. By accessing and using the Services, you grant us the right to use, share and retain the information we collect from and about you as described in these Terms and in our Privacy Policy.
5. Bitcoin Transactions and Custody
5.1 Funding Your Account.
You may fund your account by sending us Bitcoin or U.S. Dollars (“USD”). We accept transfers of USD into your Client Account via Automated Clearing House (“ACH”) transfer or wire transfer. If you choose to send USD, we will sell you Bitcoin in accordance with the Terms. If you choose to send Bitcoin to our custody, you should verify the details of any Bitcoin transaction prior to submitting it to us.
5.2 Ownership of Bitcoin in our Custody.
River will provide secure custody for your Bitcoin. You agree and acknowledge that the Services only support Bitcoin, and no other digital currencies.
You will continue to own the Bitcoin deposited into your Client Account, and River shall have no rights to such Bitcoin other than as necessary to provide the Services. You will retain all rights, title, and interest in and to the Bitcoin held by us for your benefit. You have the power to store, sell, or transfer all such Bitcoin. We will, at all times, clearly identify you as the owner of such Bitcoin in our books and records and will segregate your Bitcoin from our digital assets and our other clients’ digital assets in such books and records. Except as required by law or as otherwise set forth in these Terms, we will not sell, transfer, or otherwise dispose of your Bitcoin without your consent. As the owner, you alone bear all risk of loss, including decline of value of the Bitcoin in your Client Account.
For purposes of this Agreement, Bitcoin held in your Client Account will be treated as “financial assets” under Article 8 of the Delaware Uniform Commercial Code (“Article 8”). River will be considered a “security intermediary,” and your Client Account will be considered a “securities account.” River will comply with your instructions with respect to your Client Account, subject to the terms of this Agreement.
5.3 Bitcoin is not an Insured Asset.
You understand and acknowledge that Bitcoin is not subject to protections or insurance provided by the Federal Deposit Insurance Corporation, the Securities Investor Protection Corporation, or any other agency or organization. River will have no responsibility or liability to you or anyone else for any loss in the USD value of the Bitcoin custodied in your Client Account.
5.4 Sending USD to Your Account.
You may transfer USD to your Client Account via ACH or via wire transfer. If you elect to use ACH transfers in connection with the Services, you must designate and connect a valid U.S. bank account to your Client Account. River does not charge a fee for ACH transfers, but is not responsible for any fees charged by your bank.
You may transfer USD to and from your Client Account via wire transfer. River may charge a fee for wire transfers, which we will communicate to you via the Services. River is not responsible for any fees charged by your bank. If you elect to use wire transfers in connection with the Services, you should verify all wire information prior to submitting your transaction. River is not responsible for transfers that do not include the correct wire information. If you have questions, contact our support team at support@river.com.
5.5 Bitcoin Purchases with USD.
When you send USD to your Client Account, River will automatically convert that USD into Bitcoin, and will credit such quantity of Bitcoin to your Client Account.
By sending USD to your Client Account, you are requesting to purchase, directly from River, a quantity of Bitcoin at the applicable Bitcoin buy-price at the time your USD is received by River. River typically receives the USD in your Client Account within one business day of transfer. The actual time of such receipt by River shall ultimately be determined by River in its sole discretion.
We do not make any guarantees or representations as to the Bitcoin price. We determine the buy-price of Bitcoin based on available market information and will use commercially reasonable efforts to secure the most favorable buy-price at such time. River will not be responsible for any differences between the applicable buy-price for any Bitcoin purchase made through the Services and Bitcoin buy-prices listed on any third-party services.
When you buy or sell Bitcoin using the Services, we charge a transaction fee. Our most updated transaction fees are always listed on the Services. We will also notify you of our fees for any transaction before you execute a buy or sell order, and we will include such fees on the receipt we provide to you after the transaction is complete. By using the Services, you agree that we may collect our transaction fees by reducing them from your Available Balance. We will provide sufficient capacity to process a reasonable volume of Bitcoin withdrawal requests by you.
Please note that our fees are subject to change. We will provide you notice of changes in our fees by posting the changes to the Services or otherwise communicate them to you in writing. Your continued use of the Services after the effective date of such change will constitute your agreement to pay the updated fees.
5.6 Bitcoin Transfers.
You may initiate Bitcoin transfers using the Services. Please be advised that Bitcoin transactions are not reversible. As such, once a transfer is initiated, it cannot be canceled. You should exercise caution when initiating a transfer; you are solely responsible for ensuring that the recipient is able to receive Bitcoin and that the instructions that you provide us are accurate. River assumes no responsibility for, and shall not be liable to you or any third party, for any Bitcoin that is lost as a result of an incorrect Bitcoin address, Lightning Network invoice, or any other improper transfer instructions. You are responsible for any fees charged by third-parties, including nodes on the Lightning Network, associated with any Bitcoin transfer, and you agree that we may collect such fees by reducing the balance in your Client Account.
6. Termination and Suspension.
You may, in your reasonable discretion, terminate this Agreement by closing your Client Account. Additionally, either Party may terminate this Agreement by providing written notice to the other Party if the other Party commits a material breach of this Agreement that (i) is not capable of cure, or (ii) is capable of cure but that the other Party fails to cure within thirty (30) days after receipt of written notice of such breach.
We reserve the right to take immediate action to limit or prevent your access to our Services if we, in our reasonable discretion, determine that our continued performance under this Agreement may be in violation of Applicable Laws, or if a governmental authority directs us to do so. Circumstances in which we may limit or prevent your access to our Services include, but are not limited to, if we deem that such action is necessary based on: (i) your use of the Services in a way that is unlawful or would potentially expose us to liability; (ii) disruption of the Services by you to others; (iii) your material violation of these Terms or our Privacy Policy; (iv) your violation of any applicable laws, rules, or regulations that may apply to you; and (v) your use of the Services in a way that could cause harm to any person or entity. Such action may include, without limitation, suspending your Client Account or terminating your access to the Services altogether.
Notwithstanding any termination of the Agreement, any provision of these Terms that by its nature and context is intended to survive its termination will so survive. These include, without limitation, provisions related to limitation of our liability, disclaimer of warranties, our intellectual property rights, indemnity and dispute resolution.
7. Intellectual Property
The Services contain important and proprietary property owned by us, including software, that constitutes our trademarks, trade secrets and other associated intellectual property. Nothing in these Terms shall be construed as a conveyance of any ownership right or title in or to our property. We will own and have the unrestricted right to use and incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the Services. Each Party will own and retain all rights in its trademarks, logos and other brand elements (collectively, “Trademarks”). To the extent that a Party grants any rights or licenses to its Trademarks to the other Party in connection with the Agreement, the other Party’s use of such Trademarks will be subject to the reasonable trademark guidelines provided in writing by the Party that owns the Trademarks.
All rights and licenses not granted in the Agreement are expressly reserved.
8. Compliance With Applicable Laws
8.1 Use of the Services.
You represent and warrant that your use of the Services does not and will not conflict with any pre-existing obligation in conflict or in any way inconsistent with the provisions of these Terms. You may only use the Services for their intended purpose, and not for any other purpose. Any non-permitted use of the Services, as determined in our sole discretion, shall be grounds for immediate termination of these Terms and immediate termination of your use of, and access to, the Services. You are only entitled to access and use our Services for lawful purposes.
8.2 Prohibited Conduct.
Each of the Parties will comply with all Applicable Laws (defined herein) in connection with the operation of its business and the exercise of its rights and performance of its obligations under the Agreement. For purposes of this Agreement, “Applicable Laws” means all applicable federal, state, and local laws, statutes, and regulations, and all applicable orders, judgments, decisions, rules, policies, opinions, directives or guidelines passed or issued by any governmental entity or any competent court, as applicable to such Party during the Term of this Agreement, including, without limitation: laws pertaining to anti-money laundering, counter-terrorism financing (“ATF”), export control and economic sanctions; anti-mafia, anti-bribery and anti-corruption statutes, rules or regulations of any national, federal, state or local jurisdiction, including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the U.K. Bribery Act of 2010 (in force on July 1, 2011) (“Anti-Bribery Laws”); the Bank Secrecy Act; the economic and trade sanctions programs administered by the Office of Foreign Assets Control (“OFAC”) of the United States Department of the Treasury; the USA PATRIOT Act; federal and state money transmission and virtual currency laws; the Electronic Fund Transfer Act and the regulations promulgated thereunder; all applicable laws concerning privacy, data security or data protection; and all foreign laws regarding the same.
Without limiting the foregoing, each Party shall comply with any Applicable Laws pertaining to anti-money laundering, counter-terrorism financing, export control and economic sanctions (together “AML”). River may, for the purposes of complying with Applicable Laws and in its sole discretion, impose reasonable limitations and controls upon Client’s use of the Services, such limitations and controls to be immediately noticed to Client in writing. Client shall not use the Services to engage in any dealings with or benefitting any person or entity (i) identified on any sanctions-related list of designated persons, (ii) located, organized or resident in a jurisdiction subject to comprehensive sanctions, or (iii) any person owned or controlled by any person or entity identified in the foregoing clauses (i) or (ii) (a “Sanctions Target”).
9. Representations and Warranties
Each Party represents and warrants to the other that: (i) it has all requisite right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it will exercise its rights and perform its obligations hereunder in full compliance with all Applicable Laws, including, with respect to River and for the avoidance of doubt, all applicable federal money services business laws, state money transmitter laws, federal and international sanctions laws, and applicable payment network rules; (iii) it shall abstain from offering or giving anything of value to any third party for purpose of gaining an improper advantage for the other Party in connection with the matters described in this Agreement; (iv) it is not a government owned or controlled entity and that none of its directors or officers (or any individuals holding functionally equivalent positions) are a Government Official (as defined in applicable Anti-Bribery Laws; (v) its performance under this Agreement will not breach or violate any agreement with a third party; and (vi) each Party will obtain and maintain at their own expense all approvals, permissions, permits, licenses, releases, and other forms of documentation or authorization required for its performance under this Agreement.
Each Party further represents and warrants that it (i) is not a Restricted Party; and (ii) is not controlled by or acting on behalf of any Restricted Party. “Restricted Party” means any person or entity that is (1) listed on any of the lists of persons or entities maintained by the United States government that prohibit such persons or entities from receiving exports or services; or (2) a national or resident of, or an entity or governmental authority in, any country or territory that is or becomes subject to United States export controls for anti-terrorism reasons or with which United States persons are generally prohibited from engaging in financial transactions.
10. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
10.1 Disclaimer.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER RIVER NOR CLIENT MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES.
10.2 Limitation of Liability.
EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREIN, A PARTY’S INTENTIONAL MISCONDUCT OR FRAUD, AND ANY LOSS OF OR LIMITATION OF ACCESS TO ANY BITCOIN DIRECTLY CAUSED BY RIVER’S PROVISION OF SERVICES, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR RELIANCE DAMAGES (OR ANY LOSS OF REVENUE, PROFITS OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, GROSS NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE REASONABLE ALLOCATIONS OF RISK. EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREIN, A PARTY’S INTENTIONAL MISCONDUCT OR FRAUD, AND ANY LOSS OF OR LIMITATION OF ACCESS TO ANY BITCOIN DIRECTLY CAUSED BY RIVER’S PROVISION OF SERVICES, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY WITH RESPECT TO THIS AGREEMENT EXCEED THE GREATER OF (I) THE AMOUNT OF THE FEES PAID OR PAYABLE TO US BY YOU OR ON YOUR BEHALF IN THE TWELVE (12) MONTHS PRIOR TO THE FIRST CLAIM MADE BY YOU AND (II) FIVE THOUSAND DOLLARS ($5,000).
RIVER SHALL BE LIABLE TO YOU FOR THE LOSS OF ANY BITCOIN IN, OR FIAT CURRENCY ON DEPOSIT IN, OR TRANSFERRED FROM, YOUR CLIENT ACCOUNT TO THE EXTENT THAT RIVER CAUSED SUCH LOSS THROUGH ACTION OR INACTION IN BREACH OF THIS AGREEMENT AND RIVER SHALL RETURN TO YOU A QUANTITY OF BITCOIN EQUAL TO THE QUANTITY OF ANY SUCH LOST BITCOIN.
10.3 Indemnification.
Each Party shall indemnify, defend and hold harmless the other Party and its parents, subsidiaries, affiliates and their directors, officers, employees and agents from all third party claims or actions, and any liabilities, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees, expenses and costs) related thereto, arising from (i) the other Party’s material breach of any obligation, representation or warranty contained in this Agreement; (ii) a claim related to the fraud, gross negligence, or willful misconduct of the other Party; (iii) a claim related to the other Party’s failure to comply with Applicable Laws; (iv) a claim related to the other Party’s infringement of a third party’s intellectual property rights; or (v) breach of the confidentiality and/or data security obligations set forth in this Agreement.
The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party has full control and authority over the defense, except that any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party’s prior written consent, such consent not to be unreasonably withheld or delayed. The other Party may join in the defense with its own counsel at its own expense.
12. Miscellaneous
12.1 Severability
If, for whatever reason, any term or condition in the Agreement is found unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
12.2 Waiver
The failure to enforce any provision of the Agreement is not a waiver of our right to do so later, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
12.3 Assignment
The Agreement shall be binding on the Parties and their respective successors and permitted assigns. Neither Party shall assign the Agreement, or any right, interest or benefit under this Agreement, without the prior written consent of the other Party, which shall not be unreasonably withheld.
12.4 Relationship of the Parties
The Parties are independent contractors, and neither Party is an agent or representative of the other Party. Neither Party shall have any right to enter into any agreement for or on behalf of, or incur any obligation or liability for, the other Party, except as may be expressly set forth herein.
12.5 Governing Law
This Agreement and all matters related to this Agreement shall be governed by the laws of the State of Delaware without regard to its choice of law rules, except to the extent governed by federal law. This Agreement will not be subject to the United Nations Convention on the International Sale of Goods.
12.6 Notices
Any notice, request or demand under this Agreement will be in writing: (i) to Client at any of the contact addresses (including email) associated with your Client Account (or at any of the contact addresses as updated by the Parties in writing), or (ii) to River, at support@river.com.
12.7 Force Majeure
Neither Party shall be liable for, or be considered in breach of or default under this Agreement due to any failure to perform its obligations (other than its payment obligations) as a result of a cause beyond its reasonable control, including any act of God, public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, pandemic, fire, flood, earthquake, storm or other l
ike event, disruption or outage of communications, power or other utility, labor problem or any other cause which could not have been prevented by the non-performing Party by exercising reasonable care (a “Force Majeure Event”). A Party claiming a Force Majeure Event shall use reasonable diligence to remove the condition that prevents performance and shall not be entitled to suspend performance of its obligations in any greater scope or for any longer duration than is required by the Force Majeure Event. Each Party shall use reasonable efforts to mitigate the effects of such Force Majeure Event, remedy its inability to perform, and resume full performance of its obligations hereunder. A Party suffering a Force Majeure Event shall notify the other Party in writing (“Notice of Force Majeure Event”) as soon as reasonably practicable specifying the cause of the event, the scope of commitments under the Agreement affected by the event, and a good faith estimate of the time required to restore full performance. Except for those commitments identified in the Notice of Force Majeure Event, the Party affected by the Force Majeure Event shall not be relieved of its responsibility to fully perform as to all other commitments in the Agreement.
12.8 Entire Agreement
The Agreement sets forth the entire agreement between the Parties and supersedes any and all prior or contemporaneous agreements, negotiations, discussions or statements of any kind, whether written or oral, with respect to the subject matter hereof.
12.9 Marketing
Upon the prior written consent in each instance, each Party (“Grantor”) grants the other Party (“Grantee”) the right to use Grantor’s name and logo (subject to appropriate trademark attribution) on Grantee’s marketing materials, including Grantee’s website, presentations, case studies, and in sales discussions with prospective clients. In addition, with Grantor prior consent in each instance, Grantor agrees to serve as a reference for Grantee and grants Grantee the right to use Grantor’s testimonials or other statements of support for the Services on the marketing materials described above.
12.10 Electronic Signature and Delivery of Communications
By agreeing to these Terms, you consent to receiving all communications, agreements, disclosures, and notices related to your use of the Services electronically. These may include, but are not limited to, your consent to these Terms, any updates to these Terms and our Privacy Policy, details and notices about your Client Account and transactions, and any other disclosures and notices. We will communicate all electronic disclosures to you by posting them on the River website or via email at the address associated with your Client Account, and are deemed received as of the time and date sent by River.
12.11 Headings
The section headings contained in these Terms are for reference purposes only and shall not affect the meaning or interpretation of these Terms in any way.
11. Confidentiality
Each Party acknowledges that it may have access to certain information and materials concerning the other Party’s business, plans, programs, customers, employees, code and products that are confidential and of substantial value to such Party (referred to in this Section as “Confidential Information”), which information or materials (i) are marked or identified as “confidential” at the time of disclosure by the disclosing Party, or (ii) by their nature, content or circumstances around its disclosure should be reasonably understood to be confidential. The terms of this Agreement, information accessed via the River API, technical specifications and processes of each Party, and all Client data are Confidential Information of both Parties. Each Party agrees to maintain all Confidential Information received from the other, orally, in writing, or in any other form, in strict confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing Party. The receiving Party agrees to take the same precautions to prevent unauthorized access to or use or disclosure of the disclosing Party’s Confidential Information that it takes to protect its own information of a similar kind, but in no event will the receiving Party exercise less than reasonable care. Each Party further agrees to use the Confidential Information only for the purpose of performing its obligations or exercising its rights under this Agreement and to disclose such Confidential Information only to those employees or agents who have a need to know such Confidential Information and are required to protect it against unauthorized disclosure.
Confidential Information does not include anything that (i) is already known by the receiving Party prior to the disclosure without restriction on disclosure or use, (ii) becomes publicly known through no act or fault of the receiving Party, (iii) is received by the receiving Party from a third party without a restriction on disclosure or use and which third party was, to the best of the receiving Party’s knowledge, authorized to disclose the information, or (iv) is independently developed by the receiving Party without reference to any of the disclosing Party’s Confidential Information. The restrictions on use and disclosure shall not apply to Confidential Information that is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, provided that the receiving Party shall first notify the disclosing Party of such disclosure requirement or order (if legally permitted) and use reasonable efforts to obtain confidential treatment for any information that is required to be disclosed. The Parties’ respective obligations of confidentiality shall survive the expiration or early termination of this Agreement for a period of five (5) years thereafter other than with respect to trade secrets, which shall be held in confidence following such period in accordance with this section. Upon termination of this Agreement and except for electronic copies made in the course of normal network backups or as otherwise set forth in this Agreement, the receiving Party will promptly destroy or return, at the sole discretion of the disclosing Party, all Confidential Information of the disclosing Party in the receiving Party’s possession or control.
Neither Party shall make any public statement, press release or other announcement relating to the existence, terms or subject matter of this Agreement without the prior written approval of the other Party.
1. Introduction
These Terms of Service (the “Terms” or “Agreement”) will govern your rights and obligations relating to your access to and use of the secure Bitcoin custody and Lightning-enabled transaction processing accounts provided by River, including related transmission and custody services provided by us, in connection with your subscription to MicroStrategy Lightning Rewards (collectively, the “Services” or “Financial Services”). Use of additional services provided by River may be subject to additional terms and conditions.
BY REGISTERING FOR AN ACCOUNT, ACCEPTING THIS AGREEMENT OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND RESPONSIBILITIES, INCLUDING A LIMITATION OF OUR LIABILITY. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES.
All references in these Terms to “we,” “us,” “our,” or “River” refer to River Financial Inc., a Delaware corporation, and our affiliated entities, as applicable. The term “you,” “your,” or “client” refers to any individual or entity that accesses the Services. If you are accessing the Services on behalf of an entity or other organization, references to “you,” “your,” or “client” are to such entity or organization, and you are accepting this Agreement for that entity or organization and representing to River that you have the authority to bind that entity or organization to this Agreement. River and client may each be referred to herein as a “Party” and together as the “Parties”.
Change to these terms
We reserve the right to change these Terms from time to time. We will provide notice to you via the Services if the Terms are changed or updated. If you continue to use the Services, you consent to the new Terms, as modified. Any changes to these Terms will become effective on the “Effective Date” indicated above. If you continue to use the Services after the Effective Date, you consent to the new Terms. We will always have the latest Terms posted on the Services.
The Services
3.1 Overview and Provision of Services.
The Services provide clients with one or more secure Bitcoin custody and Lightning-enabled transaction processing accounts, which may be funded via USD or via Bitcoin (as set forth in the Terms) and which may be accessible through our website or through the River API interface with the MicroStrategy Lightning Rewards platform. By accepting this Agreement, you authorize River to connect your River Lightning account with the MicroStrategy Lightning Rewards platform via the River API interface.
We represent and warrant to you that we: (i) will provide the Services in a professional and workmanlike manner that conforms with industry standards; (ii) will perform Services that will not infringe the copyrights, patents, trade secrets, or other intellectual property rights of any third party; (iii) will use best efforts to provide the Services using security best practices in the architecture, design, implementation and testing of the software and other components of the Services; (iv) are, to our best knowledge, currently in good standing with all relevant government agencies, departments, regulatory or supervisory bodies in all relevant jurisdictions where we do business; and (v) maintain and utilize leading cybersecurity measures, and to the best of our knowledge the Services are free of viruses and other harmful components and code.
We will use best efforts to ensure that the Services are always available, and to notify you when they are unavailable. If you have any questions, concerns or complaints about the Services, your Client Account, these Terms, or anything else, please contact our support team at support@river.com. We may ask for certain information about you and your Client Account to respond to your inquiry.
3.2 Use of the Services.
River grants you a limited, revocable, non-exclusive, non-transferable license, subject to the Terms and applicable law, to access and use the Services for the purposes of (i) purchasing Bitcoin with USD to fund your Client Account, (ii) securely storing your Bitcoin with us, (iii) processing Lightning transactions and (iv) marketing the ability to make Lightning transactions.
3.3 Taxes.
Your use of the Services may be subject to certain tax obligations. It is your sole responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct through the Services, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities.
3.4 Recordkeeping.
We will keep accurate and complete records relating to your Client Account and to your use of the Services. Your transaction history will be available to you through the Services.
Your User Account and Your Responsibilities
4.1 Eligibility and Jurisdiction.
The Services are only eligible to clients in those jurisdictions in which they may legally be provided. To see a list of states or jurisdictions where we operate, please visit here. Additionally, you must register for your River account (your “Client Account”) and successfully complete our onboarding process. By signing up for a Client Account, you represent and warrant that your principal place of business is located in a state or jurisdiction in which we operate.
4.2 Account Registration.
Before using the Services, you will be required to register for a Client Account. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it up to date. We reserve the right to suspend or terminate your Client Account according to these Terms if we determine that any information provided by you is inaccurate or incomplete. We may, in our reasonable discretion, refuse to open a Client Account, or limit the number of Client Accounts that you may hold or suspend or terminate any Client Account or the trading of Bitcoin in your account.
4.3 Securing Your Account.
You are responsible for safeguarding your Client Account information, including your access credentials. You agree not to disclose your access credentials to, or share your Client Account with, any third party. You agree to take sole responsibility for any activities or actions initiated in your Client Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your Client Account.
You agree that we will not be liable for any loss or harm that you incur if someone else uses the Services from any of your devices or with your credentials, either with or without your knowledge, and that you will be solely responsible for such use, whether or not you authorized the use.
4.4 Account Verification.
As a regulated financial institution, we are required to obtain information about and verify the identity of our clients. To comply with our BSA/AML obligations, we will request that you provide certain information to us about you. This information will be used by us for the purposes of identity verification and the detection of money laundering, terrorist financing, fraud, or any other financial crimes. You agree that all such information provided by you will be complete and accurate, that you will keep us updated if any of the information you provide changes, and that we may keep a record of such information consistent with our BSA/AML obligations.
In addition to collecting information from you, we are required to take reasonable steps to verify your identity as a client. You expressly authorize River to take any and all actions that we reasonably deem necessary to verify your identity or protect you and/or us against fraud or other financial crime. These may include, but are not limited to, engaging third-party services to assist with such verification efforts, sharing your information with such third parties, and collecting additional information about you from such third parties.
4.5 Enhanced Due Diligence.
Certain clients may be subject to a more rigorous identity verification program (“Enhanced Due Diligence”) consistent with our BSA/AML obligations due to the increased risk of money laundering, fraudulent activity and sanctions risk. In such cases, you agree to comply with River’s requests to provide such information and documentation as is necessary for us, either directly or through our third-party vendors, to complete the Enhanced Due Diligence. You acknowledge that if we determine, in our sole discretion, that you are unable to satisfy the requirements of our Enhanced Due Diligence, certain functionalities of the Services may not be available to you.
4.6 Privacy Policy.
The type of information we collect from and about you as you use the Services, as well as how we use, share and retain that information is set forth in our Privacy Policy. By accessing and using the Services, you grant us the right to use, share and retain the information we collect from and about you as described in these Terms and in our Privacy Policy.
5. Bitcoin Transactions and Custody
5.1 Funding Your Account.
You may fund your account by sending us Bitcoin or U.S. Dollars (“USD”). We accept transfers of USD into your Client Account via Automated Clearing House (“ACH”) transfer or wire transfer. If you choose to send USD, we will sell you Bitcoin in accordance with the Terms. If you choose to send Bitcoin to our custody, you should verify the details of any Bitcoin transaction prior to submitting it to us.
5.2 Ownership of Bitcoin in our Custody.
River will provide secure custody for your Bitcoin. You agree and acknowledge that the Services only support Bitcoin, and no other digital currencies.
You will continue to own the Bitcoin deposited into your Client Account, and River shall have no rights to such Bitcoin other than as necessary to provide the Services. You will retain all rights, title, and interest in and to the Bitcoin held by us for your benefit. You have the power to store, sell, or transfer all such Bitcoin. We will, at all times, clearly identify you as the owner of such Bitcoin in our books and records and will segregate your Bitcoin from our digital assets and our other clients’ digital assets in such books and records. Except as required by law or as otherwise set forth in these Terms, we will not sell, transfer, or otherwise dispose of your Bitcoin without your consent. As the owner, you alone bear all risk of loss, including decline of value of the Bitcoin in your Client Account.
For purposes of this Agreement, Bitcoin held in your Client Account will be treated as “financial assets” under Article 8 of the Delaware Uniform Commercial Code (“Article 8”). River will be considered a “security intermediary,” and your Client Account will be considered a “securities account.” River will comply with your instructions with respect to your Client Account, subject to the terms of this Agreement.
5.3 Bitcoin is not an Insured Asset.
You understand and acknowledge that Bitcoin is not subject to protections or insurance provided by the Federal Deposit Insurance Corporation, the Securities Investor Protection Corporation, or any other agency or organization. River will have no responsibility or liability to you or anyone else for any loss in the USD value of the Bitcoin custodied in your Client Account.
5.4 Sending USD to Your Account.
You may transfer USD to your Client Account via ACH or via wire transfer. If you elect to use ACH transfers in connection with the Services, you must designate and connect a valid U.S. bank account to your Client Account. River does not charge a fee for ACH transfers, but is not responsible for any fees charged by your bank.
You may transfer USD to and from your Client Account via wire transfer. River may charge a fee for wire transfers, which we will communicate to you via the Services. River is not responsible for any fees charged by your bank. If you elect to use wire transfers in connection with the Services, you should verify all wire information prior to submitting your transaction. River is not responsible for transfers that do not include the correct wire information. If you have questions, contact our support team at support@river.com.
5.5 Bitcoin Purchases with USD.
When you send USD to your Client Account, River will automatically convert that USD into Bitcoin, and will credit such quantity of Bitcoin to your Client Account.
By sending USD to your Client Account, you are requesting to purchase, directly from River, a quantity of Bitcoin at the applicable Bitcoin buy-price at the time your USD is received by River. River typically receives the USD in your Client Account within one business day of transfer. The actual time of such receipt by River shall ultimately be determined by River in its sole discretion.
We do not make any guarantees or representations as to the Bitcoin price. We determine the buy-price of Bitcoin based on available market information and will use commercially reasonable efforts to secure the most favorable buy-price at such time. River will not be responsible for any differences between the applicable buy-price for any Bitcoin purchase made through the Services and Bitcoin buy-prices listed on any third-party services.
When you buy or sell Bitcoin using the Services, we charge a transaction fee. Our most updated transaction fees are always listed on the Services. We will also notify you of our fees for any transaction before you execute a buy or sell order, and we will include such fees on the receipt we provide to you after the transaction is complete. By using the Services, you agree that we may collect our transaction fees by reducing them from your Available Balance. We will provide sufficient capacity to process a reasonable volume of Bitcoin withdrawal requests by you.
Please note that our fees are subject to change. We will provide you notice of changes in our fees by posting the changes to the Services or otherwise communicate them to you in writing. Your continued use of the Services after the effective date of such change will constitute your agreement to pay the updated fees.
5.6 Bitcoin Transfers.
You may initiate Bitcoin transfers using the Services. Please be advised that Bitcoin transactions are not reversible. As such, once a transfer is initiated, it cannot be canceled. You should exercise caution when initiating a transfer; you are solely responsible for ensuring that the recipient is able to receive Bitcoin and that the instructions that you provide us are accurate. River assumes no responsibility for, and shall not be liable to you or any third party, for any Bitcoin that is lost as a result of an incorrect Bitcoin address, Lightning Network invoice, or any other improper transfer instructions. You are responsible for any fees charged by third-parties, including nodes on the Lightning Network, associated with any Bitcoin transfer, and you agree that we may collect such fees by reducing the balance in your Client Account.
6. Termination and Suspension.
You may, in your reasonable discretion, terminate this Agreement by closing your Client Account. Additionally, either Party may terminate this Agreement by providing written notice to the other Party if the other Party commits a material breach of this Agreement that (i) is not capable of cure, or (ii) is capable of cure but that the other Party fails to cure within thirty (30) days after receipt of written notice of such breach.
We reserve the right to take immediate action to limit or prevent your access to our Services if we, in our reasonable discretion, determine that our continued performance under this Agreement may be in violation of Applicable Laws, or if a governmental authority directs us to do so. Circumstances in which we may limit or prevent your access to our Services include, but are not limited to, if we deem that such action is necessary based on: (i) your use of the Services in a way that is unlawful or would potentially expose us to liability; (ii) disruption of the Services by you to others; (iii) your material violation of these Terms or our Privacy Policy; (iv) your violation of any applicable laws, rules, or regulations that may apply to you; and (v) your use of the Services in a way that could cause harm to any person or entity. Such action may include, without limitation, suspending your Client Account or terminating your access to the Services altogether.
Notwithstanding any termination of the Agreement, any provision of these Terms that by its nature and context is intended to survive its termination will so survive. These include, without limitation, provisions related to limitation of our liability, disclaimer of warranties, our intellectual property rights, indemnity and dispute resolution.
7. Intellectual Property
The Services contain important and proprietary property owned by us, including software, that constitutes our trademarks, trade secrets and other associated intellectual property. Nothing in these Terms shall be construed as a conveyance of any ownership right or title in or to our property. We will own and have the unrestricted right to use and incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the Services. Each Party will own and retain all rights in its trademarks, logos and other brand elements (collectively, “Trademarks”). To the extent that a Party grants any rights or licenses to its Trademarks to the other Party in connection with the Agreement, the other Party’s use of such Trademarks will be subject to the reasonable trademark guidelines provided in writing by the Party that owns the Trademarks.
All rights and licenses not granted in the Agreement are expressly reserved.
8. Compliance With Applicable Laws
8.1 Use of the Services.
You represent and warrant that your use of the Services does not and will not conflict with any pre-existing obligation in conflict or in any way inconsistent with the provisions of these Terms. You may only use the Services for their intended purpose, and not for any other purpose. Any non-permitted use of the Services, as determined in our sole discretion, shall be grounds for immediate termination of these Terms and immediate termination of your use of, and access to, the Services. You are only entitled to access and use our Services for lawful purposes.
8.2 Prohibited Conduct.
Each of the Parties will comply with all Applicable Laws (defined herein) in connection with the operation of its business and the exercise of its rights and performance of its obligations under the Agreement. For purposes of this Agreement, “Applicable Laws” means all applicable federal, state, and local laws, statutes, and regulations, and all applicable orders, judgments, decisions, rules, policies, opinions, directives or guidelines passed or issued by any governmental entity or any competent court, as applicable to such Party during the Term of this Agreement, including, without limitation: laws pertaining to anti-money laundering, counter-terrorism financing (“ATF”), export control and economic sanctions; anti-mafia, anti-bribery and anti-corruption statutes, rules or regulations of any national, federal, state or local jurisdiction, including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the U.K. Bribery Act of 2010 (in force on July 1, 2011) (“Anti-Bribery Laws”); the Bank Secrecy Act; the economic and trade sanctions programs administered by the Office of Foreign Assets Control (“OFAC”) of the United States Department of the Treasury; the USA PATRIOT Act; federal and state money transmission and virtual currency laws; the Electronic Fund Transfer Act and the regulations promulgated thereunder; all applicable laws concerning privacy, data security or data protection; and all foreign laws regarding the same.
Without limiting the foregoing, each Party shall comply with any Applicable Laws pertaining to anti-money laundering, counter-terrorism financing, export control and economic sanctions (together “AML”). River may, for the purposes of complying with Applicable Laws and in its sole discretion, impose reasonable limitations and controls upon Client’s use of the Services, such limitations and controls to be immediately noticed to Client in writing. Client shall not use the Services to engage in any dealings with or benefitting any person or entity (i) identified on any sanctions-related list of designated persons, (ii) located, organized or resident in a jurisdiction subject to comprehensive sanctions, or (iii) any person owned or controlled by any person or entity identified in the foregoing clauses (i) or (ii) (a “Sanctions Target”).
9. Representations and Warranties
Each Party represents and warrants to the other that: (i) it has all requisite right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it will exercise its rights and perform its obligations hereunder in full compliance with all Applicable Laws, including, with respect to River and for the avoidance of doubt, all applicable federal money services business laws, state money transmitter laws, federal and international sanctions laws, and applicable payment network rules; (iii) it shall abstain from offering or giving anything of value to any third party for purpose of gaining an improper advantage for the other Party in connection with the matters described in this Agreement; (iv) it is not a government owned or controlled entity and that none of its directors or officers (or any individuals holding functionally equivalent positions) are a Government Official (as defined in applicable Anti-Bribery Laws; (v) its performance under this Agreement will not breach or violate any agreement with a third party; and (vi) each Party will obtain and maintain at their own expense all approvals, permissions, permits, licenses, releases, and other forms of documentation or authorization required for its performance under this Agreement.
Each Party further represents and warrants that it (i) is not a Restricted Party; and (ii) is not controlled by or acting on behalf of any Restricted Party. “Restricted Party” means any person or entity that is (1) listed on any of the lists of persons or entities maintained by the United States government that prohibit such persons or entities from receiving exports or services; or (2) a national or resident of, or an entity or governmental authority in, any country or territory that is or becomes subject to United States export controls for anti-terrorism reasons or with which United States persons are generally prohibited from engaging in financial transactions.
10. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
10.1 Disclaimer.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER RIVER NOR CLIENT MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES.
10.2 Limitation of Liability.
EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREIN, A PARTY’S INTENTIONAL MISCONDUCT OR FRAUD, AND ANY LOSS OF OR LIMITATION OF ACCESS TO ANY BITCOIN DIRECTLY CAUSED BY RIVER’S PROVISION OF SERVICES, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR RELIANCE DAMAGES (OR ANY LOSS OF REVENUE, PROFITS OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, GROSS NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE REASONABLE ALLOCATIONS OF RISK. EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREIN, A PARTY’S INTENTIONAL MISCONDUCT OR FRAUD, AND ANY LOSS OF OR LIMITATION OF ACCESS TO ANY BITCOIN DIRECTLY CAUSED BY RIVER’S PROVISION OF SERVICES, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY WITH RESPECT TO THIS AGREEMENT EXCEED THE GREATER OF (I) THE AMOUNT OF THE FEES PAID OR PAYABLE TO US BY YOU OR ON YOUR BEHALF IN THE TWELVE (12) MONTHS PRIOR TO THE FIRST CLAIM MADE BY YOU AND (II) FIVE THOUSAND DOLLARS ($5,000).
RIVER SHALL BE LIABLE TO YOU FOR THE LOSS OF ANY BITCOIN IN, OR FIAT CURRENCY ON DEPOSIT IN, OR TRANSFERRED FROM, YOUR CLIENT ACCOUNT TO THE EXTENT THAT RIVER CAUSED SUCH LOSS THROUGH ACTION OR INACTION IN BREACH OF THIS AGREEMENT AND RIVER SHALL RETURN TO YOU A QUANTITY OF BITCOIN EQUAL TO THE QUANTITY OF ANY SUCH LOST BITCOIN.
10.3 Indemnification.
Each Party shall indemnify, defend and hold harmless the other Party and its parents, subsidiaries, affiliates and their directors, officers, employees and agents from all third party claims or actions, and any liabilities, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees, expenses and costs) related thereto, arising from (i) the other Party’s material breach of any obligation, representation or warranty contained in this Agreement; (ii) a claim related to the fraud, gross negligence, or willful misconduct of the other Party; (iii) a claim related to the other Party’s failure to comply with Applicable Laws; (iv) a claim related to the other Party’s infringement of a third party’s intellectual property rights; or (v) breach of the confidentiality and/or data security obligations set forth in this Agreement.
The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party has full control and authority over the defense, except that any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party’s prior written consent, such consent not to be unreasonably withheld or delayed. The other Party may join in the defense with its own counsel at its own expense.
11. Confidentiality
Each Party acknowledges that it may have access to certain information and materials concerning the other Party’s business, plans, programs, customers, employees, code and products that are confidential and of substantial value to such Party (referred to in this Section as “Confidential Information”), which information or materials (i) are marked or identified as “confidential” at the time of disclosure by the disclosing Party, or (ii) by their nature, content or circumstances around its disclosure should be reasonably understood to be confidential. The terms of this Agreement, information accessed via the River API, technical specifications and processes of each Party, and all Client data are Confidential Information of both Parties. Each Party agrees to maintain all Confidential Information received from the other, orally, in writing, or in any other form, in strict confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing Party. The receiving Party agrees to take the same precautions to prevent unauthorized access to or use or disclosure of the disclosing Party’s Confidential Information that it takes to protect its own information of a similar kind, but in no event will the receiving Party exercise less than reasonable care. Each Party further agrees to use the Confidential Information only for the purpose of performing its obligations or exercising its rights under this Agreement and to disclose such Confidential Information only to those employees or agents who have a need to know such Confidential Information and are required to protect it against unauthorized disclosure.
Confidential Information does not include anything that (i) is already known by the receiving Party prior to the disclosure without restriction on disclosure or use, (ii) becomes publicly known through no act or fault of the receiving Party, (iii) is received by the receiving Party from a third party without a restriction on disclosure or use and which third party was, to the best of the receiving Party’s knowledge, authorized to disclose the information, or (iv) is independently developed by the receiving Party without reference to any of the disclosing Party’s Confidential Information. The restrictions on use and disclosure shall not apply to Confidential Information that is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, provided that the receiving Party shall first notify the disclosing Party of such disclosure requirement or order (if legally permitted) and use reasonable efforts to obtain confidential treatment for any information that is required to be disclosed. The Parties’ respective obligations of confidentiality shall survive the expiration or early termination of this Agreement for a period of five (5) years thereafter other than with respect to trade secrets, which shall be held in confidence following such period in accordance with this section. Upon termination of this Agreement and except for electronic copies made in the course of normal network backups or as otherwise set forth in this Agreement, the receiving Party will promptly destroy or return, at the sole discretion of the disclosing Party, all Confidential Information of the disclosing Party in the receiving Party’s possession or control.
Neither Party shall make any public statement, press release or other announcement relating to the existence, terms or subject matter of this Agreement without the prior written approval of the other Party.
12. Miscellaneous
12.1 Severability
If, for whatever reason, any term or condition in the Agreement is found unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
12.2 Waiver
The failure to enforce any provision of the Agreement is not a waiver of our right to do so later, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
12.3 Assignment
The Agreement shall be binding on the Parties and their respective successors and permitted assigns. Neither Party shall assign the Agreement, or any right, interest or benefit under this Agreement, without the prior written consent of the other Party, which shall not be unreasonably withheld.
12.4 Relationship of the Parties
The Parties are independent contractors, and neither Party is an agent or representative of the other Party. Neither Party shall have any right to enter into any agreement for or on behalf of, or incur any obligation or liability for, the other Party, except as may be expressly set forth herein.
12.5 Governing Law
This Agreement and all matters related to this Agreement shall be governed by the laws of the State of Delaware without regard to its choice of law rules, except to the extent governed by federal law. This Agreement will not be subject to the United Nations Convention on the International Sale of Goods.
12.6 Notices
Any notice, request or demand under this Agreement will be in writing: (i) to Client at any of the contact addresses (including email) associated with your Client Account (or at any of the contact addresses as updated by the Parties in writing), or (ii) to River, at support@river.com.
12.7 Force Majeure
Neither Party shall be liable for, or be considered in breach of or default under this Agreement due to any failure to perform its obligations (other than its payment obligations) as a result of a cause beyond its reasonable control, including any act of God, public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, pandemic, fire, flood, earthquake, storm or other l
ike event, disruption or outage of communications, power or other utility, labor problem or any other cause which could not have been prevented by the non-performing Party by exercising reasonable care (a “Force Majeure Event”). A Party claiming a Force Majeure Event shall use reasonable diligence to remove the condition that prevents performance and shall not be entitled to suspend performance of its obligations in any greater scope or for any longer duration than is required by the Force Majeure Event. Each Party shall use reasonable efforts to mitigate the effects of such Force Majeure Event, remedy its inability to perform, and resume full performance of its obligations hereunder. A Party suffering a Force Majeure Event shall notify the other Party in writing (“Notice of Force Majeure Event”) as soon as reasonably practicable specifying the cause of the event, the scope of commitments under the Agreement affected by the event, and a good faith estimate of the time required to restore full performance. Except for those commitments identified in the Notice of Force Majeure Event, the Party affected by the Force Majeure Event shall not be relieved of its responsibility to fully perform as to all other commitments in the Agreement.
12.8 Entire Agreement
The Agreement sets forth the entire agreement between the Parties and supersedes any and all prior or contemporaneous agreements, negotiations, discussions or statements of any kind, whether written or oral, with respect to the subject matter hereof.
12.9 Marketing
Upon the prior written consent in each instance, each Party (“Grantor”) grants the other Party (“Grantee”) the right to use Grantor’s name and logo (subject to appropriate trademark attribution) on Grantee’s marketing materials, including Grantee’s website, presentations, case studies, and in sales discussions with prospective clients. In addition, with Grantor prior consent in each instance, Grantor agrees to serve as a reference for Grantee and grants Grantee the right to use Grantor’s testimonials or other statements of support for the Services on the marketing materials described above.
12.10 Electronic Signature and Delivery of Communications
By agreeing to these Terms, you consent to receiving all communications, agreements, disclosures, and notices related to your use of the Services electronically. These may include, but are not limited to, your consent to these Terms, any updates to these Terms and our Privacy Policy, details and notices about your Client Account and transactions, and any other disclosures and notices. We will communicate all electronic disclosures to you by posting them on the River website or via email at the address associated with your Client Account, and are deemed received as of the time and date sent by River.
12.11 Headings
The section headings contained in these Terms are for reference purposes only and shall not affect the meaning or interpretation of these Terms in any way.