Custodia Bank, Inc.
Terms of Service

Updated: June 27, 2023

These Terms of Service (“Terms”) apply to your access and use of the Custodia Bank, Inc. (dba Custodia Digital Services, Inc. where applicable) (“Custodia” or “we”, “us” or “our”) website, www.custodiabank.com, along with the features, functionalities, applications, browser extensions and other services available through our website (collectively, our “Website”) and your use of our products and services (our “Services”). We refer to our Website and Services collectively as our “Platform.”

By accessing or using our Platform in any way, including, without limitation, using our Services, accessing any portion of our Platform or submitting anything to us through or in connection with our Platform, you agree to read, comply with, and be legally bound by: (1) these Terms, (2) any agreements between you (or anyone on whose behalf you access our Platform) and us, which may include, including without limitation the Customer Deposit Account Agreement governing the financial account (the “Account”) you access through our Platform (the “Additional Agreements”), and (3) any additional terms and conditions, agreements, notices, or policies published on the Platform or otherwise applicable to your use of the Platform (the “Rules”). We refer to these Terms, the Additional Agreements, and the Rules collectively as the “Agreements.” If you do not agree with the foregoing, you may not use the Platform.

THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT, JURY TRIALS OR PARTICIPATION IN A CLASS ACTION. THESE TERMS ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. THUS, CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION OF THESE TERMS BEFORE YOU ACCESS OR USE OUR PLATFORM.

1. ACCEPTANCE AND APPLICABILITY OF AGREEMENTS

   1. Representations and Warranties. Without limiting the foregoing, the Platform is intended for United States residents 18 years of age or older. Use of our Platform by anyone under 18 years old is strictly prohibited. By accessing the Platform, you represent to us that: (1) you are a United States resident; (2) you are 18 years of age or older; (3) you are legally able to enter into contracts; (4) you are not a person barred from receiving or using the Platform under federal, state, local or other laws; and (5) you have not previously been suspended or prohibited from using the Platform for any reason other than your cancellation of your Platform Account.

   2. Changes to Terms. We may update or modify these Terms from time to time, without limitation by posting a revised version of these Terms throughout our Platform and by publishing a general notice of such changes across our Platform. By accessing or using our Platform after we have provided such notice, you agree to be bound by such modifications.

   3. Our Rights. We have the right, but not the obligation, to take any of the following actions in our sole discretion without providing any prior notice to you and without any liability to you or any third party:

      1. change or terminate all or any part of the Platform;
      2. restrict or terminate your access to all or any part of the Platform;
      3. refuse, move or remove any content that is available on the Platform; or
      4. deny access to the Platform to anyone at any time in our sole and absolute discretion.

   4. Conflicts. In the event of any conflict between these Terms and any other Agreements, these Terms shall control with respect to any conflicts relating to your access or use of our Platform

2. USE OF THE PLATFORM

   1. Acceptable Use. Your use of the Platform must comply with the following (“Acceptable Use Restrictions”):

      1. You are only allowed to use the Platform for its intended purposes, as determined by us in our sole discretion.
      2. Without limitation, you are not allowed to access or use our Platform to: (1) violate any laws; (2) transmit or upload any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive nature; (3) engage in commercial activity except as expressly permitted under the Agreements; (4) engage in any action with another user on the Platform designed to circumvent the features provided by the Platform; (5) refer or promote external websites that facilitate sales of products and services outside the Platform; and (6) use contact information obtained through the Platform to offer to buy or sell products or services outside of the Platform.
      3. You are also prohibited from: (1) reformatting or framing any portion of our Platform; (2) using any device, software, or procedure that interferes with, or attempts to interfere with, the normal operation of our Platform; (3) taking any action that imposes, or may impose, as determined by us in our sole discretion, an unreasonable or disproportionately large load on our information technology infrastructure; (4) modifying, adapting, disassembling, decompiling, translating or reverse engineering any portion of our Platform or otherwise attempting to reconstruct or discover any source code or underlying ideas, algorithms, file formats, or programming interoperability interfaces of our Platform; (5) disrupting or otherwise interfering with our Platform or the networks or servers we use; (6) impersonating any person or entity or misrepresenting your connection or affiliation with a person or entity; (7) collecting or storing, or attempting to collect or store, personal information about other users of our Platform, except as expressly permitted under the Agreements; (8) engaging in any activity that is illegal under federal, state, local, or other laws; (9) creating a false identity on our Platform; (10) creating an Account for anyone else (except when, and only to the extent, you create one or more sub-accounts on our Platform for your representatives that are authorized to use or access our Platform on your behalf); (11) releasing to any third party information related to your access to or use of our Platform for purposes of monitoring our Platform’s availability, performance, or functionality, or for any other benchmarking or competitive purposes without our prior written approval; (12) copying our Platform, except as expressly permitted under the Agreements; (13) accessing or using our Platform in a service bureau or time-sharing environment (including, without limitation, accessing our Platform to provide third parties a service consisting solely of the collection and entry of data and other information on our Platform); (14) selling, assigning, transferring, sublicensing, pledging, renting, or otherwise sharing your rights under the Agreements; (15) creating any derivative works based on our Platform; and (16) modifying, obscuring, or removing any proprietary notices on our Platform or copies thereof.

   2. Compliance with Applicable Laws. You certify that you will comply with all applicable laws (e.g., federal, state, local, and other laws) and the Agreements when accessing or using our Platform. Without limiting the foregoing, by accessing or using our Platform, you represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list or prohibited of restricted parties. If you access or use our Platform outside the United States, you are solely responsible for ensuring that your access to and use of the Platform in such country, territory, or jurisdiction does not violate any applicable laws. We reserve the right, but have no obligation to, in our sole discretion, monitor where our Platform is accessed from, and the right, but not the obligation, to block or otherwise restrict access to our Platform, in whole or in part, from any geographic location.

   3. Mistakes or Errors. Without limiting anything set forth in the applicable Agreements, you acknowledge and agree that under no circumstances will we or any of our licensors or suppliers be responsible for any loss, damage or liability arising out of any mistakes or other errors made by you as a result of your access to or use of our Platform.

   4. Abusive and Offensive Language. Abusive or offensive language will not be tolerated on our Platform, social media sites or with our personnel. You are not entitled to make untrue, malicious and/or damaging comments with regard to our operations in any media or forum.

   5. Links to Third Party Websites. Our Platform may include links to other websites (e.g., sponsors’ and/or advertisers’ websites) or services solely as a convenience to you. You acknowledge and agree that we are not responsible for the availability of such external sites or resources and that we do not endorse and are not responsible or liable for any such linked sites or other information, material, products or services contained on or accessible through other linked sites. Furthermore, we make no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites, unless otherwise provided in the Agreements. Your access to and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.

3. PLATFORM ACCOUNTS

   1. Registration. When applying for an Account on our Platform, you agree to provide true, accurate, current and complete information about yourself as may be prompted by any application form or question. If any information you previously provided to us changes, you must promptly update the relevant information. You also agree not to impersonate any other person or entity or to use a name that you are not authorized to use.

   2. Account Security and Responsibility. You are responsible for maintaining the confidentiality of your username and password for your Account and are fully responsible for all activities that occur under your Account. You agree to: (1) notify Custodia immediately of any unauthorized use of your Account, including, without limitation, any unauthorized use of your username and password, or any breach of security relating to your Account; and (2) ensure that you fully logout of your Account at the end of each session. You further agree not to login to our Platform using anyone else’s Account. Custodia will never ask for your password other than as required to login to our Platform. Custodia will not be liable for any loss or damage arising from your failure to comply with this provision or any other provisions in the Agreements. If Custodia suspends or terminates your Account, you acknowledge that all information and content associated with such Account will no longer be available to you.

   3. Additional Information Sharing. If you maintain an Account, you understand that Custodia will collect and maintain information related to your use of the Platform. Custodia connects, though may not always display, that information to your Account in order to conduct our business operations.

4. USER CONTENT AND INFORMATION

   1. Personal Data. By using the Platform, you agree that you have read and understand our Privacy Notice (available on our website), including how we use, disclose, transfer and share your personal information, including sharing such information with companies other than Custodia. If you do not agree with the collection and use of your information as described in the Privacy Notice, please stop using and terminate your access to our Platform.

   2. Consent to Use of Tracking Technologies. By using the Platform, you agree that we are permitted to record your actions on our Website. You further acknowledge and agree that we may use services provided by third parties to generate, store, access, review, and otherwise use such recordings.

   3. Feedback. By submitting ideas, suggestions, documents, proposals, products and/or technologies (“Feedback”) to us in any way, you acknowledge and agree that: (1) your Feedback does not contain confidential or proprietary information; (2) we are not under any obligation of confidentiality, express or implied, with respect to the Feedback; (3) we shall be entitled to disclose (or choose not to disclose) such Feedback for any purpose and in any way; (4) we may have something similar to the Feedback already under consideration or in development; (5) your Feedback which is not subject to a patent, automatically becomes our property without any obligation to you; and (6) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances.

5. PLATFORM OWNERSHIP AND LICENSE

   1. Ownership. All right, title and interest in and to our Platform, including, but not limited to, all of the software and code that comprise and operate our Platform, and all of the text, photographs, illustrations, images, graphics, audio, video, URLs and other materials provided through our Platform (“Content”) are owned by us or third parties who have licensed their content to us. Our Platform is protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. In addition, the entire Platform is a collective work under U.S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement and enhancement of our Platform.

   2. Our Marks. The Custodia names and logos (including, but not limited to, those of our affiliates), all product and service names, all graphics, all button icons and all trademarks, service marks and logos appearing within the Platform, unless otherwise noted, are trademarks (whether registered or not), service marks and/or trade dress of Custodia (collectively, “Our Marks”). All other trademarks, product names, company names, logos, service marks and/or trade dress (collectively, “Marks”) mentioned, displayed, cited or otherwise indicated within the Platform are the property of their respective owners. You are not authorized to display Our Marks in any manner without our prior written permission. You are not authorized to display or use the Marks of any third party that appear within the Platform without the prior written permission of the applicable third party.

   3. Limited License. Subject to your acceptance of, and compliance with, the Agreements, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Platform in a manner that is consistent with the Agreements and the Platform’s intended purpose(s). You obtain no rights to the Platform except to use it in accordance with the Agreements. Without limiting the generality of the foregoing, you shall not: (1) use any data mining, robots or other automatic or manual device, software, program, code, algorithm or methodology to access, copy or monitor any portion of the Platform or in any way reproduce or circumvent the navigational structure or presentation of the Platform, or obtain, or attempt to obtain, any materials or information through any means not purposely made available by us through the Platform and we reserve the right to take measures to prevent any such activity; (2) sell, assign, sublicense, transfer, distribute, lease or grant a security interest in the Platform (in whole or in part); (3) make the Platform (in whole or in part) available to any third party through a computer network or otherwise, including, but not limited to, distributing or making use of the Platform (in whole or in part) over a network where it could be used by multiple devices at the same time; (4) export the Platform (in whole or in part) to any country outside the United States (whether by physical or electronic means); (5) or use the Platform in violation of the Acceptable Use Restrictions (collectively, the “Prohibited Activities”). You will be solely liable for any damages, costs or expenses arising out of or in connection with your commission of any Prohibited Activity. You shall notify us immediately upon becoming aware of the commission by any person of any Prohibited Activity and shall provide us with reasonable assistance with any investigations we may conduct in light of the information provided by you in this respect.

6. YOUR LIABILITY

   1. Agreement to Indemnify. YOU AGREE THAT YOU WILL ONLY USE THE PLATFORM IN ACCORDANCE WITH THE APPLICABLE AGREEMENTS. YOU WILL COMPENSATE US IN FULL FOR ANY LOSSES OR COSTS (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) WHICH WE (OR ANY OF OUR SUBSIDIARIES OR AFFILIATED COMPANIES) INCUR ARISING FROM ANY BREACH BY YOU OF THE AGREEMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD US, OUR SUBSIDIARIES AND AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND OTHER PARTNERS (THE “RELEASED PARTIES”) HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEY FEES AND COSTS, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE PLATFORM, YOUR CONNECTION TO THE PLATFORM, YOUR VIOLATION OF ANY OF THE AGREEMENTS OR YOUR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY.

   2. Additional Remedies. The Released Parties reserve the right to seek all remedies available at law and in equity for violations of the applicable Agreements, including the right to block access from a particular Internet address to the Platform or report misuses to law enforcement.

7. DISCLAIMERS

   1. Disclaimer of all Warranties

      1. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE PLATFORM (INCLUDING, BUT NOT LIMITED TO, ANY SOFTWARE COMPRISING ANY PORTION OF THE PLATFORM), WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE PLATFORM WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS OR OTHER HARMFUL SOFTWARE OR HARDWARE.
      2. YOU HEREBY ACKNOWLEDGE THAT THE PLATFORM MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF THE PLATFORM AND/OR TELECOMMUNICATIONS INFRASTRUCTURE OR DISRUPTION, AND THEREFORE WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY OR PERFORMANCE OF THE PLATFORM CAUSED BY SUCH FACTORS.
      3. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER DATA, INCLUDING WITHOUT LIMITATION ANY YOUR CONTENT, OR ANY OTHER USER CONTENT OR PRIVATE MESSAGES.
      4. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.

   2. Use of Platform at Your Sole Risk. YOUR ACCESS TO AND USE OF THE PLATFORM IS AT YOUR SOLE OPTION, DISCRETION AND RISK. WE SHALL NOT BE LIABLE FOR ANY MALFUNCTIONS OF THE COMPUTER PROGRAMS RELATING TO THE PLATFORM, BUGS OR VIRUSES RESULTING IN LOST DATA OR ANY OTHER DAMAGE TO YOUR COMPUTER EQUIPMENT, MOBILE PHONE OR MOBILE DEVICE OR SOFTWARE. FURTHERMORE, WE SHALL NOT BE LIABLE FOR ANY ATTEMPTS BY YOU TO USE THE PLATFORM BY METHODS, MEANS OR WAYS NOT INTENDED BY US. WE ARE NOT REQUIRED TO PROVIDE REDUNDANT OR BACKUP NETWORKS AND/OR SYSTEMS.

   3. No Creation of Warranty. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN OBTAINED BY YOU FROM ANY OF THE RELEASED PARTIES THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS

   4. Third Party Statements. WE DO NOT ENDORSE, AND ARE NOT RESPONSIBLE FOR, STATEMENTS, ADVICE AND OPINIONS UNLESS AUTHORIZED BY CUSTODIA AND MADE BY AUTHORIZED CUSTODIA SPOKESPERSONS. WE DO NOT ENDORSE, AND ARE NOT RESPONSIBLE FOR, ANY STATEMENTS, ADVICE OR OPINIONS PROVIDED BY ANY THIRD PARTIES, AND SUCH STATEMENTS, ADVICE AND OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE OR OPINIONS OF CUSTODIA.

   5. No Legal or Financial Advice. THE PLATFORM IS NOT INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE. THE PLATFORM AND THE INFORMATION PROVIDED THROUGH THE PLATFORM IS PROVIDED SOLELY FOR INFORMATIONAL PURPOSES. CUSTODIA IS NOT A FINANCIAL ADVISOR. BEFORE MAKING ANY FINANCIAL DECISIONS OR IMPLEMENTING ANY FINANCIAL STRATEGY, YOU SHOULD CONSIDER CONSULTING WITH YOUR ACCOUNTANT OR OTHER CERTIFIED FINANCIAL ADVISOR WHO IS FULLY AWARE OF YOUR SITUATION.

8. LIMITATION OF LIABILITY

   1. Liabilities for our Platform. TO THE EXTENT PERMITTED BY LAW, WE WILL NOT BE RESPONSIBLE FOR ANY LOST PROFITS, LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, FINANCIAL LOSSES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND.

   2. Maximum Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANYTHING ELSE IN THESE TERMS, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO YOUR USE OF THE PLATFORM SHALL BE THE GREATER OF THE AMOUNT YOU PAID US FOR USE OF THE PLATFORM OVER THE PREVIOUS SIX MONTHS AND THE AMOUNT OF $100.

   3. No Liability for Incidental Damages. IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE PLATFORM OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE PLATFORM.

   4. Applicability of Limitations. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. DISPUTE RESOLUTION

   PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS.

   1. Waiver of Rights. YOU AGREE THAT BY ACCESSING OR USING OUR PLATFORM, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.

   2. Agreement to Arbitrate.

      1. YOU AGREE THAT, EXCEPT AS PROVIDED IN SECTION 9.2(b) BELOW, ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS OR YOUR ACCESS TO OR USE OF THE PLATFORM SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION.
      2. NOTWITHSTANDING SECTION 9.2(a), YOU AND CUSTODIA AGREE THAT THE FOLLOWING DISPUTES ARE NOT SUBJECT TO THE ABOVE PROVISIONS CONCERNING INFORMAL NEGOTIATIONS AND BINDING ARBITRATION: (1) ANY DISPUTES SEEKING TO ENFORCE OR PROTECT, OR CONCERNING THE VALIDITY OF, ANY OF YOUR OR CUSTODIA’S INTELLECTUAL PROPERTY RIGHTS; (2) ANY DISPUTE RELATED TO, OR ARISING FROM, ALLEGATIONS OF THEFT, PIRACY, INVASION OF PRIVACY OR UNAUTHORIZED USE; AND (3) ANY CLAIM FOR INJUNCTIVE RELIEF. IF THIS SECTION IS FOUND TO BE ILLEGAL OR UNENFORCEABLE THEN NEITHER YOU NOR CUSTODIA WILL ELECT TO ARBITRATE ANY DISPUTE FALLING WITHIN THAT PORTION OF THIS SECTION FOUND TO BE ILLEGAL OR UNENFORCEABLE AND SUCH DISPUTE SHALL BE DECIDED BY A COURT OF COMPETENT JURISDICTION WITHIN THE COURTS LISTED FOR JURISDICTION BELOW, AND YOU AND CUSTODIA AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THAT COURT.
      3. THIS AGREEMENT TO ARBITRATE INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1-16 (“FAA”), AND NOT BY STATE LAW.
      4. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FAA.
      5. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION.
      6. FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, YOU MUST ABIDE BY THE FOLLOWING RULES: (1) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS AND (2) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) WILL TAKE PLACE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING OR THE COURTS OF THE STATE OF WYOMING, AS LOCATED IN LARAMIE COUNTY, WYOMING.
      7. THE ARBITRATOR IS BOUND BY THE TERMS OF THIS AGREEMENT TO ARBITRATE. YOU ACKNOWLEDGE AND AGREE THAT, IN ANY ARBITRATION PROCEEDING, NO DEPOSITIONS WILL BE TAKEN, AND ALL OTHER FORMS OF DISCOVERY OF FACTS WILL BE LIMITED TO THOSE THINGS THAT THE ARBITRATOR DETERMINES, IN ITS SOLE DISCRETION, TO BE NECESSARY. FURTHER, IN ANY ARBITRATION PROCEEDING: (1) THERE SHALL BE NO PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL OR OTHER SPECIAL DAMAGES; (2) ALL DAMAGES, CLAIMS, AND AWARDS WILL BE GOVERNED BY WYOMING LAW; (3) THE PARTIES WILL CONDUCT THE ARBITRATION CONFIDENTIALLY AND EXPEDITIOUSLY AND WILL PAY THEIR OWN COSTS AND EXPENSES OF ARBITRATION, INCLUDING THEIR OWN ATTORNEY FEES. IF YOU PROVE THAT YOU ARE UNABLE TO AFFORD THE AAA FEE, YOU AGREE TO NOTIFY ALL PERSONAS AGAINST WHOM YOU HAVE AN ARBITRABLE CLAIM AND GIVE SUCH PERSONS THE OPPORTUNITY, INDIVIDUALLY AND AS A GROUP, TO PAY SUCH FEE. THE PROCEEDING AND THE DECISION SHALL BE KEPT CONFIDENTIAL BY THE PARTIES.
      8. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
      9. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
      10. EXCEPT IN THE EVENT YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 9.5, THIS AGREEMENT TO ARBITRATE WILL SURVIVE TERMINATION OF YOUR ACCESS TO OR USE OF OUR PLATFORM AND YOUR RELATIONSHIP WITH THE RELEASED PARTIES.
      11. ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THIS AGREEMENT TO ARBITRATE (I.E., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR.

   3. Information About Arbitration. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG. THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION, OR SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.

   4. Challenges to Validity of Agreement to Arbitrate. YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THIS AGREEMENT TO ARBITRATE (i.e., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THE AGREEMENTS TO THE CONTRARY, IF THE CLASS ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE, YOU AGREE THE YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS.

   5. Opt-Out of Agreement to Arbitrate. IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF THE EFFECTIVE DATE OF THESE TERMS OR WHEN YOU FIRST USE THE PLATFORM, WHICHEVER IS LATER, YOU MUST SEND US A LETTER STATING: “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” TO:

      Custodia Bank, Inc. 2120 Carey Ave. Cheyenne, WY 82001

   6. Venue for Litigation. IF THE AGREEMENT TO ARBITRATE IN SECTION 9.2 ABOVE IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, OR IF YOU OPT OUT OF THE AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 9.5, THEN, UNLESS PROHIBITED BY APPLICABLE LAW, THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING OR THE COURTS OF THE STATE OF WYOMING, AS LOCATED IN LARAMIE COUNTY, WYOMING, AS APPROPRIATE. YOU ALSO THEREFORE AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSES OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU HEREBY WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION, AND AGREE TO REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THIS AGREEMENT.

   7. Prevailing Party. IN ANY ARBITRATION PROCEEDING OR LITIGATION (AS APPLICABLE) BETWEEN YOU AND THE RELEASED PARTIES IN CONNECTION WITH ANY OF THE AGREEMENTS, YOUR ACCESS TO OR USE OF THE PLATFORM, OR YOUR DEALINGS WITH THE RELEASED PARTIES, THE PREVAILING PARTY WILL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEYS’ FEES AND COSTS IN SUCH ARBITRATION OR LITIGATION (AS APPLICABLE) FROM THE OTHER PARTY.

10. ADDITIONAL TERMS

    1. Governing Law. These Terms will be governed by the laws of the State of Wyoming without giving effect to any principles of conflicts of laws.

    2. Survival. The provisions of these Terms which by their nature are intended to survive the termination or cancellation of these Terms shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Without limiting the foregoing, the provisions of these Terms regarding indemnity and limitations of liability shall survive the termination or cancellation of these Terms.

    3. Electronic Communications. The communications between you and Custodia use electronic means. For contractual purposes, you: (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically, including, but not limited to, the Agreements, satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.

    4. Severability. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the applicable Agreements shall continue in effect.

    5. Waivers. Our failure to enforce any provision of the Agreements shall not be deemed a waiver of such provision nor of the right to enforce such provisions.

    6. Admissibility of Terms. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

    7. Assignment. We reserve the right to transfer, assign, sublicense or pledge any or all of the Agreements, in whole or in part, to any person without notice, provided that any such assignment will be on the same terms or terms that are no less advantageous to you. You may not assign, sublicense or otherwise transfer in any manner whatsoever any of your rights or obligations under the Agreement.

    8. Headings. The section headings and sub-headings contained in these Terms are for convenience only and have no legal or contractual effect.

    9. Support. If you have any questions or concerns about the Platform or these Terms, please email us at [email protected]