HEAPS TERMS OF SERVICE
PLEASE READ THESE TERMS CAREFULLY
- Definitions. Capitalized terms used in these Terms, but not defined in place, have the meanings given to them in this Section 1. As used in these Terms:
“Account” means the Heaps account registered by you through the Services, and through which you can access your Wallet.
“Account Information” is defined in Section 2.3.
“Content” is defined in Section 7.1.
“Crypto-Back Amount” is defined in Section 3.4.5.
“Cryptocurrencies” mean bitcoin and other cryptocurrencies that may be purchased through the Services.
“Digital Asset” means any digital asset (including a virtual currency or virtual commodity) that is issued or transferred using distributed ledger or blockchain technology, and includes Cryptocurrencies and Rewards.
“Digital Asset Transaction” is defined in Section 5.2.
“Disputes” is defined in Section 10.1.
“Indemnified Parties” is defined in Section 8.1.
“Payment Card” means a credit card, debit card or other payment card.
“Payment Card Networks” means the networks operated by Visa U.S.A., MasterCard International Incorporated, or American Express Company and each of their respective affiliates, and any other payment network or associate supported by us from time to time.
“Prime Trust” is defined in Section 4.1.
“Registered Payment Card” means a Supported Payment Card registered by you through the Heaps Site.
“Rewards” means rewards points, loyalty points or other rewards, including Cryptocurrency, that may be earned or obtained through the Services.
“Supported Payment Card” means a Payment Card operating on the Visa U.S.A., MasterCard, or American Express payment system and that are supported by Heaps from time to time. Without limiting the foregoing, supported Payment Cards do not include corporate Payment Cards, purchasing Payment Cards, non-reloadable prepaid Payment Cards, government-administered or issued prepaid cards (including EBT cards), Payment Cards associated with a Health Savings Account, Flexible Spending Account, Health Reimbursement Account, or other healthcare account, Visa Buxx, corporate Payment Cards, or any other Payment Cards that are not processed through the U.S.A., MasterCard, or American Express payment systems.
“Transfers” is defined in Section 5.5.
“User Assets” is defined in Section 3.1.
“User Credentials” is defined in Section 2.5.
“Wallet” is defined in Section 3.1.
- Account Registration.
- Eligibility. You represent and warrant to us, that you are at least 18 years old, that you are capable of entering into a legally binding agreement, and that you reside in the United States. Your right to use your Account, Wallet, and the Services is conditioned upon your acceptance and compliance with these Terms. If you do not agree to be bound by these Terms, you are not authorized to use your Account, Wallet, or the Services, and you agree to immediately discontinue any access to or use of your Account, Wallet, and the Services. The Heaps Site is not available to and the Services are not being offered to residents of the State of New York.
- Registration. To use the Services, you must register for an Account. By registering or using an Account you agree and represent that you have created your Account solely for use by yourself, and you will not use your Account for or on behalf of any third-party. You are solely and fully responsible for all activity that occurs under your Account. We may, in our sole discretion, refuse to open an Account for you, suspend or terminate your Account, suspend or terminate the sending and receiving of Digital Assets from or to your account, or suspend or terminate the trading of Digital Assets in your Account.
- Identity Verification. To create an Account and use the Heaps Site and Services, and from time to time thereafter, you must provide us with certain information, which may include your name, address, telephone number, email address, date of birth, taxpayer identification or social security number, a copy or your driver’s license, passport or other government-issued photo identification, and other personal information requested by us (“Account Information”). Such information may be used for identity verification, providing Services to you, and the detection of money laundering, terrorist financing, fraud, or any other financial crimes. You agree that Heaps and its Service Providers may keep a record of such information. You agree that any such information provided to us will be accurate and complete. Further, you agree that you will update the Account Information you provide in order to maintain accurate Account Information. You can withdraw your consent for our use of Account Information at any time by closing your Account. However, we may retain and continue to process your personal information if we reasonably believe it is necessary in order to comply with laws or regulations. In addition, such information may be assigned or transferred in accordance with Section 12.5.
- Account Security. You are responsible for maintaining security and control of any and all electronic devices, log-in credentials, passwords, hints, personal identification numbers, and any other information you use to access your Account, Wallet, the Heaps Site, or the Services (the “User Credentials”). Any loss or compromise of the foregoing information and/or your personal information may result in unauthorized access to your Account by third-parties and the loss or theft of any Digital Assets and/or funds held in your Account and any associated accounts, including your linked bank account(s). We will provide you with transaction history that you can access through your Account at any time and confirmations for each transaction conducted through your Account. We assume no responsibility for any loss that you sustain due to compromise of your User Credentials, and we assume that you have authorized each transaction that occurs using your User Credentials. You agree to cooperate with us during the investigation of any suspected unauthorized access to or use of your Account or the Services using your User Credentials. You agree to provide us with accurate and current information throughout the investigation. You agree to perform any tasks we reasonably require to manage or report a security breach or fraud. You are responsible for keeping your email address and telephone number up to date in your Account profile, and for ensuring that any emails we send to you are permitted by any spam or other email blocker implemented by you or your email service provider, so that you can receive any notices or alerts that we send you. We assume no responsibility for your failure to follow or act on any notices or alerts that we send to you. IN THE EVENT YOU BELIEVE YOUR ACCOUNT OR USER CREDENTIALS HAVE BEEN COMPROMISED, CONTACT HEAPS SUPPORT IMMEDIATELY AT SUPPORT@GETHEAPS.COM
- Closing Your Account. You may close your Account and terminate your relationship with us without cost by contacting Heaps support at email@example.com, but you will remain liable for all obligations related to your Account even after your Account is closed. You must sell or transfer any and all Digital Assets you hold in your Wallet prior to closing your Account. Any incomplete transactions or transfers must be completed or canceled, and you must transfer any U.S. Dollars from your Account before closing it. You authorize us to disenroll any Registered Payment Cards from Heaps at the time of Account closure. If we have no record of you accessing the Services for several years and we are unable to contact you using the information you provided, applicable law may require us deliver any such funds to the applicable state or jurisdiction as unclaimed property.
- Wallet, Digital Assets and Card Linking; No Investment Advice.
- Wallet Services. As part of your Account, we will provide you with a wallet (“Wallet”). The Wallet will allow you to hold, store, transfer, receive and manage Digital Assets and U.S. Dollars (together, the “User Assets”).
- Supported Digital Assets. We have the right, in our sole discretion, to determine the types of Digital Assets available to you through the Services. We may add or remove any Digital Asset from the Services at any time and for any reason and will seek to provide you with advance notice of the addition or removal of any Digital Assets, unless such notice is prohibited by law, governmental authority or other legal process. If you do not sell or transfer such Digital Asset to another platform before we terminate support for such Digital Asset, then we may, in our discretion, remove such Digital Asset from your Account and credit your Account the equivalent market value of such Digital Asset in U.S. Dollars minus transaction costs. We do not own or control the underlying software protocols which govern the operation of Digital Assets. We assume no responsibility for the operation of the underlying protocols and do not guarantee the functionality or security of network operations. The underlying protocols may be subject to sudden changes in operating rules, which are known as “forks”. These changes may materially adversely affect the availability, value, functionality, and/or the name of the Digital Asset you store in your Wallet. In the event of any such operational change, we reserve the right to take such steps as we determine is necessary to protect the security and safety of Digital Assets held on the Heaps Site, including without limitation, temporarily suspending operations for the impacted Digital Assets. We will endeavor to provide you notice of its response to any material operating change; by you acknowledge that such changes are outside of our control and may occur without notice to us. By using your Account, your Wallet and the Services, you acknowledge and accept the risks of operating changes to Digital Asset protocols, including forks, and agree that we are not responsible for any such changes or any losses you may experience as a result of such changes. You further acknowledge and accept that we have no responsibility to support new Digital Asset forks or operating changes for supported Digital Assets.
- NO INVESTMENT ADVICE. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY INVESTMENT, INVESTMENT STRATEGY OR RELATED TRANSACTION IS APPROPRIATE FOR YOU BASED ON YOUR PERSONAL INVESTMENT OBJECTIVES, FINANCIAL CIRCUMSTANCES AND RISK TOLERANCE. WE MAY PROVIDE EDUCATIONAL INFORMATION ABOUT DIGITAL ASSETS IN ORDER TO ASSIST YOU IN LEARNING MORE ABOUT DIGITAL ASSETS. INFORMATION MAY INCLUDE, BUT IS NOT LIMITED TO, BLOG POSTS, ARTICLES, LINKS TO THIRD-PARTY CONTENT, NEWS FEEDS, TUTORIALS, AND VIDEOS. THIS INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE INVESTMENT ADVICE, TAX ADVICE, FINANCIAL ADVICE, TRADING ADVICE, OR ANY OTHER SORT OF ADVICE, AND YOU SHOULD NOT TREAT ANY OF THE CONTENT PROVIDED THROUGH THE HEAPS SITE AS SUCH. WE DO NOT RECOMMEND THAT ANY DIGITAL ASSET SHOULD BE BOUGHT, EARNED, SOLD, OR HELD BY YOU. WE SHALL NOT BE RESPONSIBLE FOR THE DECISIONS YOU MAKE TO BUY, SELL, OR HOLD DIGITAL ASSETS, INCLUDING THOSE BASED ON ANY INFORMATION PROVIDED BY US.
THE VALUE OF DIGITAL ASSETS IS HIGHLY VOLATILE AND CAN RAPIDLY INCREASE OR DECREASE. THERE IS A RISK OF SUBSTANTIAL OR TOTAL LOSS IN PURCHASING, HOLDING OR SELLING DIGITAL ASSETS. WHILE THE VOLATILITY OF DIGITAL ASSETS IS HIGH AND VARIES SIGNIFICANTLY, CHANGES AND ADVANCES IN TECHNOLOGY, FRAUD, THEFT AND CYBER-ATTACKS AND REGULATORY CHANGES, AMONG OTHERS, MAY INCREASE VOLATILITY FURTHER. IN ADDITION, DIGITAL ASSETS LACK THE HISTORICAL TRACK RECORD OF CURRENCIES OR COMMODITIES SUCH AS GOLD THAT COULD GUIDE IF CURRENT LEVELS OF VOLATILITY ARE TYPICAL OR ATYPICAL.
YOU SHOULD CONSULT YOUR FINANCIAL ADVISOR, LEGAL OR TAX PROFESSIONAL REGARDING YOUR SPECIFIC SITUATION AND FINANCIAL CONDITION AND CAREFULLY CONSIDER WHETHER TRADING OR HOLDING DIGITAL ASSETS IS SUITABLE FOR YOU.
- Card Linking; Rewards.
- Registration. In order to earn Rewards, including Cryptocurrency through a Supported Payment Card, you must register that Supported Payment Card through the Heaps Site. If your Registered Payment Card is a debit card, your transaction must be processed as a “credit” (i.e., non-PIN) transaction to make sure the transaction can be monitored. Do not use a Personal Identification Number (PIN) when paying for your purchases with your Registered Payment Card if you want the transaction to be eligible for Rewards.
- Rewards Earned through Heaps Site. Certain Rewards may be earned by making a purchase using (and within the same shopping session as) an offer link on the Heaps Site (“Qualifying Heaps Purchase”). You must be logged into the Heaps Site and have cookies enabled for Qualifying Heaps Purchases to earn such Rewards. Purchases may not qualify for a Reward if a separate coupon code or promotion is used. We cannot guarantee that the Rewards will be earned if you complete a purchase after being redirected to a mobile, tablet, or app-optimized website, and such purchases shall not constitute or qualify as a Qualifying Heaps Purchase. Offers made through the Heaps Site may be changed or rescinded at any time, but such changes will not affect Rewards earned with respect to Qualifying Heaps Purchases prior to such change(s). You acknowledge that errors in the offer terms or conditions obtained through use of the Heaps Site may occur from time to time, whether caused by a merchant or otherwise. We will use commercially reasonable efforts to correct any such error, and you agree not to bring any action against Heaps, its service providers or the merchant based on or related to such errors.
- Transaction Monitoring. By registering a Supported Payment Card, you authorize Heaps and its Service Providers to share your Registered Payment Card information with relevant Payment Card Networks. In addition, you authorize the relevant Payment Card Network to: (a) monitor transactions on your Registered Payment Card(s); (b) identify qualifying purchases using your Registered Payment Card(s), and (c) share such transaction details with Heaps and its Service Providers to enable earned Reward(s). You may opt-out of transaction monitoring with respect to a Registered Payment Card by removing such Payment Card from your Wallet. A removal request will generally be processed within 3 business days, and your opt-out will be deemed effective upon completion of the removal request.
- Transaction Eligibility. Not all transactions with your Registered Payment Card will be tracked by your Payment Network. Transactions that may not be tracked, include PIN-based purchases, purchases you initiate through identification technology that substitutes for a PIN, payments made through other payment methods (such as a digital wallet or a third-party payment app, where your Registered Payment Card is not presented directly to the merchant), payments of existing balances, balance transfers, or transactions that are not processed or submitted through the payment systems operated by the Payment Card Networks are not eligible.
- Additional Restrictions. Please note that certain Services are provided by Figg, Inc. Your Payment Card may only be enrolled in one program operated by Figg, Inc. If you have already enrolled a Payment Card with a separate program operated by Figg, Inc., and you enroll the same Payment Card with Heaps, your Registered Payment Card will be automatically disenrolled from the other Figg, Inc. program.
- Rewards. Earned Rewards will not appear or be reflected on your transaction receipt from the merchant at the time of purchase, and will instead be reflected in your Account after the qualifying transaction has been verified. Rewards will generally appear within 2 weeks from the date the qualifying transaction has been verified, provided such transaction has not been cancelled or reversed, but may take longer. With respect to Rewards payable in Digital Assets (i.e. “Crypto-Back” Rewards), your Account will show a “pending crypto-back” amount in U.S. Dollars (“Crypto-Back Amount”). Within 2 weeks of the time the Crypto-Back Amount reaches a minimum of $10.00, a Digital Asset Transaction (as defined in Section 5.2 below) will be initiated and your pre-selected Cryptocurrency (or, if you did not select a preferred Cryptocurrency, Bitcoin) will be purchased through your Account. All Rewards are subject to the express terms and conditions of the Reward offer, but expressly exclude amounts attributed to any returns, cancellations, reversals, shipping, credits, taxes, and any special handling fees. We may deduct Rewards from your Account to make adjustments for returns and cancellations with respect to Qualifying Heaps Purchases or purchases made using a Supported Payment Card. We also reserve the right to withhold Rewards or reverse any Rewards previously awarded in the event a merchant fails to pay us for any reason.
- Third-Party Custodial Services; Ownership and Control.
- Digital Asset Custody and Title. All Digital Assets held in your Digital Asset Wallet are custodial assets held by Prime Trust, LLC, a Nevada chartered trust company (such trust company and its successors “Prime Trust”) for your benefit, as described in further detail below:
- Ownership. Title to Digital Assets shall at all times remain with you and shall not transfer to Prime Trust or to us. As the owner of Digital Assets in your Wallet, you bear all risk of loss of such Digital Assets. Neither Prime Trust nor us shall have any liability for Digital Asset fluctuations or loss. Except as required by law, or except as provided in these Terms, we will not sell, transfer, loan, or otherwise dispose of Digital Assets in your Wallet unless instructed by you.
- Control. You control the Digital Assets held in your Digital Asset Wallet. At any time, subject to outages, downtime, and other applicable policies, you may withdraw your Digital Assets by sending it to a different blockchain address. Prime Trust shall retain control over electronic private keys associated with blockchain addresses operated by it, including the blockchain addresses that hold your Digital Assets until such time as you withdraw or sell such Digital Assets.
- Digital Assets Not Segregated. Prime Trust, as the custodian for all Digital Assets may use shared blockchain addresses, controlled by Prime Trust, to hold Digital Assets on behalf of you. Although Prime Trust maintains separate ledgers for Accounts, neither Prime Trust nor Heaps shall have no obligation to segregate by blockchain address Digital Assets owned by you from Digital Assets owned by other customers.
- Other User Assets. Your Wallet also allows you to hold and transfer U.S. Dollars. We are not a bank and do not hold deposits. All U.S. Dollars held in your Wallet are custodial assets held by Prime Trust for your benefit, as described in further detail below
- Ownership. Title to U.S. Dollars held in your Wallet shall at all times remain with you and shall not transfer to Prime Trust or to us. Except as required by law, or except as provided in these Terms or the Prime Trust Agreement (as defined below), we will not sell, transfer, loan, or otherwise dispose of U.S. Dollars in your Wallet unless instructed by you.
- Control. You control the U.S. Dollars held in your Wallet. At any time, subject to outages, downtime, and other applicable policies, you may withdraw your U.S. Dollars in accordance with the terms of the Prime Trust Agreement.
- Prime Trust Custodial Agreement. As a condition of using the Services, you will be required to establish a Prime Asset Custody Account with Prime Trust pursuant to a Prime Trust New Account Agreement (the “Prime Trust Agreement”). In addition to these Terms, your use of the Services, Account and Wallet are subject to the terms of the Prime Trust Agreement.
- Unclaimed Property. If U.S. Dollars or Digital Assets are in your Account, and we have no record of you accessing the Services for several years and we are unable to contact you using the information you provided, applicable law may require us deliver any such funds to the applicable state or jurisdiction as unclaimed property.
- Digital Asset Custody and Title. All Digital Assets held in your Digital Asset Wallet are custodial assets held by Prime Trust, LLC, a Nevada chartered trust company (such trust company and its successors “Prime Trust”) for your benefit, as described in further detail below:
- U.S. Dollar Transfers. You can load U.S. Dollar denominated funds into your Wallet from a valid bank account via ACH transfer or wire transfer. Your U.S. Dollar balance may be in a “pending” state and may not be credited to your Wallet until after the bank transfer has cleared, which may take several days. We may debit your linked bank account as soon as you initiate payment. The name on your linked bank account and your wire transfer must match the name verified on your Account.
- Digital Asset Transactions. When you buy or sell Digital Assets on the Heaps Site, you are not buying Digital Assets from or selling Digital Assets to Heaps or Prime Trust. Prime Trust is acting as the agent, transacting on your behalf, to facilitate that purchase or sale with third-parties. You can purchase Digital Assets using the methods and following the relevant instructions on the Heaps Site. We reserve the right to cancel any transaction not confirmed by you within five (5) seconds after we quote a transaction price. You can sell Digital Assets and instruct us to deposit funds into your Wallet. Digital Asset purchases and sales are collectively referred to herein as “Digital Asset Transactions”. If we cannot complete your Digital Asset Transaction for any reason (such as price movement, market latency, inability to find a counterparty for your transaction, or order size), we will reject the order and notify you of such rejection. You will not be charged for a rejected transaction. Digital Asset Transaction placed during bank business hours on the Heaps Site will generally initiate on the business day we receive your instructions. Purchased Digital Assets will usually be deposited in your Wallet instantly. You will be able to sell or send Digital Assets within the Heaps Site as soon as a Digital Asset arrives in your wallet, but you may not withdraw a Digital Asset or funds obtained from a sale from Heaps until at least ten (10) days have passed from the date funds used to purchase such Digital Asset were loaded to your Wallet.
IF YOU BELIEVE YOU DID NOT AUTHORIZE A PARTICULAR TRANSACTION OR THAT A TRANSACTION WAS INCORRECT, CONTACT HEAPS SUPPORT IMMEDIATELY AT SUPPORT@GETHEAPS.COM. REPORTING AN UNAUTHORIZED TRANSACTION DOES NOT GUARANTEE THAT WE WILL BE ABLE TO REVERSE OR REIMBURSE YOU FOR THE TRANSACTION.
- Reversals and Cancellations. When you initiate a Digital Asset Transaction or initiate the transfer of U.S. Dollars using the Heaps Site, you cannot change, cancel or reverse your authorization for us to complete that transaction. We reserve the right to refuse to process, or to cancel, correct, claw back, or reverse, any transaction in our sole discretion, even after funds have been debited from your Account, in response to a subpoena, court order, or other government order; or if we suspect the transaction may: involve money laundering, terrorist financing, fraud, or any other type of financial crime; be erroneous; or violate any prohibited use policy posted on the Heaps Site. In such instances, we are under no obligation to reverse or reinstate a purchase or sale order at the same price or on the same terms as the canceled transaction.
- Rewards. We rely on third-parties, including merchants and other third-party service providers to determine whether Rewards have been earned. You acknowledge and agree that you are solely responsible for checking your Account regularly to verify that Rewards have been properly posted. If you believe that a Reward has not been properly posted to your Account, then you must inform us within six (6) months of the date of the purchase you believe earned such Reward along with proof of the purchase acceptable to us (the “Reward Notification Period”). We reserve the right to determine in our sole and absolute discretion whether a Reward was earned. You acknowledge that any such determination by us will be final and binding and that we shall have no obligation or liability to you with respect to Rewards earned but not posted to your Account after the expiration of the Reward Notification Period.
- Transaction Limits. We reserve the right to establish daily, weekly, or other limits on deposits and withdrawals of cash and Digital Assets in our sole discretion. We also reserve the right to right to change applicable limits, and to refuse to raise your limits, as we deem necessary in our sole discretion. These limits will be set forth in your Account.
- TRANSFERS OF USER ASSETS ARE AT YOUR SOLE RISK. IF YOU SEND USER ASSETS (WHETHER DIGITAL ASSETS OR U.S. DOLLARS) FROM YOUR WALLET TO A THIRD-PARTY (“TRANSFERS”), SUCH TRANSFERS ARE EXECUTED BY HEAPS OR PRIME TRUST AT YOUR INSTRUCTION. YOU ARE SOLELY RESPONSIBLE FOR VERIFYING ALL TRANSACTION INFORMATION PRIOR TO SUBMITTING INSTRUCTIONS TO US. WE DO NOT GUARANTEE THE IDENTITY OR VALUE RECEIVED BY A RECIPIENT OF A TRANSFER, AND TRANSFERS CANNOT BE REVERSED ONCE INITIATED. WE DO NOT CONTROL THE DIGITAL ASSET NETWORK AND MAKE NO GUARANTEES THAT A TRANSFER WILL BE CONFIRMED BY THE NETWORK.
- Fees and Taxes.
- Fees. We make money when you purchase or sell Digital Assets on the Heaps Site. In addition, our Service Providers, including Prime Trust, may charge fees for deposits and withdrawals of Digital Assets. A description of the fees, including a description of how fees are calculated can be found on our Fee Disclosure Page1. By using Heaps Services you agree to pay all fees. We reserve the right to adjust pricing and fees and any applicable waivers at any time. We will notify you of the final price of each transaction, inclusive of pricing and fees, when you authorize the transaction and in each receipt we issue to you. You are responsible for paying any additional fees charged by your financial service provider(s). We will not process a transfer if associated bank fees exceed the value of the transfer. You may be required to deposit additional USD to cover bank fees if you desire to complete such a transfer.
- Taxes. It is your responsibility to determine what taxes, if any, arise from your transactions under these Terms. You are solely responsible for reporting and paying any applicable taxes arising from transactions using Services. You understand that we will report information with respect to your transactions, payments, transfers, or distributions made by or to you with respect to your activities using Services to a tax or governmental authority to the extent such reporting is required by applicable law. We will also withhold taxes applicable to your transactions or to payments or distributions made or deemed made to you to the extent such withholding is required by applicable law. From time to time, we will ask you for tax documentation or certification of your taxpayer status as required by applicable law, and any failure by you to comply with this request in the time frame identified may result in withholding and/or remission of taxes to a tax authority as required by applicable law. You should conduct your own due diligence and consult your own tax advisors before making any decisions with respect to Digital Asset transactions.
- Access and Use.
- Provision of Access. All content included in or made available through the Services, Heaps Site or any related content, materials and information such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software (collectively, the “Content”) is the property of Heaps or its affiliates or its content providers and protected by United States and international copyright laws. We grant you a limited, nonexclusive, nontransferable license, subject to the terms of these Terms, to access and use the Services, Heaps Site, and Content solely for purposes approved by us from time to time. Any other use of the Services, Heaps Site or Content is expressly prohibited and all other right, title, and interest in the Services, Heaps Site or Content is exclusively the property of Heaps and its licensors.
- Use Restrictions. You agree that you will not use the Services, Heaps Site, Account or Content for any purposes beyond the scope of the access granted in these Terms. You further agree you will not, and you shall not direct or permit any third-party to, copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the Content, in whole or in part without our prior written consent.
- Reservation of Rights. Except for the limited license to access the Services identified in Section 7.1, you acknowledge and agree that nothing contained in these Terms shall be construed as granting or conferring, by implication, estoppel or otherwise, any right, title, or interest to any intellectual property, including any (a) inventions (whether patentable or not in any country), patents, patent applications, invention disclosures, improvements, trade secrets, proprietary information, know how, information, or technical data, (b) copyright protected works, copyright registrations, mask works, mask work registrations or applications in the United States or any foreign country, (c) trademarks, trademark registrations, service marks, logos or applications therefor in the United States or any foreign country, (d) trade secrets, or (e) any other tangible or intangible proprietary rights anywhere in the world.
- Accessibility. The Services can only be accessed by using the Heaps Site. You acknowledge and agree that at times the Services may be inaccessible or inoperable for any reason whatsoever, including, without limitation: (a) equipment malfunctions, (b) periodic maintenance procedures or repairs which we may undertake from time to time without notice to you, or (c) causes which are beyond our control or which are not reasonably foreseeable. In addition, access to Services may become degraded or inaccessible during times of significant volatility or volume. We do not represent that the Heaps Site or other Services will be available without interruption and we do not guarantee that any order will be executed, accepted, recorded, or remain open. We shall not be liable for any losses resulting from or arising out of delays in processing transactions, inability to execute transactions, or lack of timely response from us. We shall not have any liability, whatsoever, for any damage or interruptions caused by any computer viruses or other malicious code that may affect your computer or other equipment, or any phishing, spoofing or other attack. You should also be aware that SMS (i.e. text messages) and email services are vulnerable to spoofing and phishing attacks and you should use care in reviewing messages purporting to originate from us. Always log into your Account through the Heaps Site to review any transactions or required actions if you have any uncertainty regarding the authenticity of any communication or notice.
- Suspension, Termination, and Cancellation.
- Suspension and Termination. We may suspend, restrict, or terminate your access to any or all of the Services, the Heaps Site, and/or deactivate or cancel your Account, with immediate effect for any reason at our sole discretion and is under no obligation to disclose the details of its decision to take such action with you. You acknowledge that our decision to take certain actions, including limiting access to, suspending, or closing your account for any reason in our sole discretion, may be based on confidential criteria that are essential to our risk management and security protocols. You agree that we are under no obligation to disclose the details of its risk management and security procedures to you.
- Transfers. If we close your Account, we will notify you using the information you provided to us. Following Account closure, you will be permitted to transfer Digital Assets or funds in your Wallet for ninety (90) days after Account deactivation or cancellation unless we determine such transfer is otherwise prohibited: (a) under applicable law; or (b) by a facially valid subpoena or court order. If any Digital Assets remain in your Wallet on the ninety-first (91st) day after Account deactivation or cancellation, a Digital Asset Transaction will be initiated and such remaining Digital Assets will be sold and the proceeds, less applicable fees, will be deposited in your Wallet. If we have no record of you accessing the Services for several years and we are unable to contact you using the information you provided, applicable law may require us deliver any such funds to the applicable state or jurisdiction as unclaimed property. You may cancel your Account at any time by contacting Heaps support at firstname.lastname@example.org. You will not be charged for canceling your Account, although you will be required to pay any outstanding amounts owed to us. You authorize us to cancel or suspend any pending transactions at the time of cancellation.
- Heaps Site Accuracy. Although we intend to provide accurate and timely information on the Heaps Site, the Heaps Site (including, without limitation, content made available on the site) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. Information may also be changed or updated from time to time without notice, including without limitation information regarding our policies, products and services. As a convenience to you, we may provide hyperlinks to web sites operated by third-parties and other information provided by third-parties, including historical price and other data related to Digital Assets, and links you may use to make purchases. When you select these hyperlinks you will be leaving the Heaps Site. Because we have no control over these sites or their content, we are not responsible for the availability of such external sites or their content, and we do not adopt, endorse and shall not be responsible or liable for any such sites or content, including advertising, products or other materials, on or available through such sites or resources.
- Indemnification and Limitation of Liability.
- Indemnification. You agree to indemnify and hold Heaps, its affiliates, and Service Providers, and each of its or their respective directors, managers, officers, owners, agents, co-branders or other partners, employees, information providers, licensors, licensees, consultants, contractors and other representatives (collectively “Indemnified Parties”) harmless from any and all claims, demands, investigations, causes of action, damages, debts, liabilities, including reasonable attorney’s fees arising out of or related to: (a) your use, including the use by anyone using your User Credentials, of your Account, the Services or your Wallet, (b) any breach or non-compliance by you or anyone using your User Credentials, of any of these Terms; (c) your, or anyone using your User Credentials, violation of law, regulation or other legal requirement; or (d) any dispute or litigation caused by your, or anyone using your User Credentials, actions or omissions. We will use commercially reasonable efforts to notify you of any such claims that are subject to your indemnification obligation.
- Repayment. If you redeemed Rewards from your Account that we subsequently reverse, you will be solely responsible to us for the repayment of the Rewards. We may apply future earned Rewards against such obligation or require you to repay the amount of any such credited Rewards from your Account. In the event you fail to pay us such amount, we reserve the right to take all legal action necessary to collect such amount from you.
- Limitation of Liability; No Warranty.
IN NO EVENT SHALL HEAPS, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE DIRECTORS, MANAGERS, OFFICERS, OWNERS, AGENTS, CO-BRANDERS OR OTHER PARTNERS, EMPLOYEES, INFORMATION PROVIDERS, LICENSORS, LICENSEES, CONSULTANTS, CONTRACTORS OR OTHER REPRESENTATIVES, BE LIABLE FOR ANY LOST PROFITS, LOSS OF GOODWILL OR REPUTATION, LOSS OF DATA, DIMINUTION IN VALUE OR BUSINESS OPPORTUNITY, ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF DATA OR ANY OTHER INTANGIBLE PROPERTY OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH ANY USE OF THE HEAPS SITE OR THE SERVICES, OR THESE TERMS, EVEN IF WE HAVE BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT TO THE EXTENT OF A FINAL JUDICIAL DETERMINATION THAT SUCH DAMAGES WERE A RESULT OF OUR GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW. IN NO EVENT SHALL HEAPS, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE DIRECTORS, MANAGERS, OFFICERS, OWNERS, AGENTS, CO-BRANDERS OR OTHER PARTNERS, EMPLOYEES, INFORMATION PROVIDERS, LICENSORS, LICENSEES, CONSULTANTS, CONTRACTORS OR OTHER REPRESENTATIVES, BE LIABLE FOR ANY AMOUNT GREATER THAN THE GREATER OF THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING HEAPS DURING THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM OR $100.00. AT THE TIME OF THE EVENT OR CIRCUMSTANCE GIVING RISE TO YOUR CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEAPS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. HEAPS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE HEAPS SITE, ANY PART OF THE SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. HEAPS DOES NOT GUARANTEE THAT ANY ORDER WILL BE EXECUTED, ACCEPTED, RECORDED OR REMAIN OPEN. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THESE TERMS, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, WITH RESPECT TO YOUR USE AND ACCESS OF THE SERVICES AND HEAPS SITE. WITHOUT LIMITING THE FOREGOING, YOU HEREBY UNDERSTAND AND AGREE THAT HEAPS WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO: (A) ANY INACCURACY, DEFECT OR OMISSION OF DIGITAL ASSET PRICE DATA, OR ANY ERROR, DELAY OR INTERRUPTION IN THE TRANSMISSION OF SUCH DATA; (B) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY HEAPS OR ON OUR BEHALF OR ANY OF THE SERVICES OR ANY WEBSITE OR SERVICE LINKED TO OUR WEBSITE; (C) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE SERVICES; OR (D) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT.
WITHOUT LIMITING THE OTHER LIMITATIONS SET FORTH IN THESE TERMS, HEAPS IS AND ITS SERVICE PROVIDERS ARE NOT AGENTS OF ANY MERCHANT. MERCHANTS OPERATE INDEPENDENTLY OF AND ARE NOT UNDER OUR CONTROL. ACCORDINGLY, WE DO NOT REPRESENT OR WARRANT, OR GIVE ANY ASSURANCES THAT ANY MERCHANT WILL PROVIDE REWARDS FOR ANY PARTICULAR TRANSACTION EVEN WHERE SUCH TRANSACTION WOULD APPEAR TO QUALIFY FOR REWARDS UNDER A MERCHANT’S OFFER. FURTHER, YOUR PARTICIPATION IN OFFERS OR PROMOTIONS OF, OR CORRESPONDENCE WITH, ANY MERCHANT IS SOLELY BETWEEN YOU AND THAT MERCHANT. WE DO NOT ASSUME ANY LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY PART OF ANY SUCH CORRESPONDENCE, OFFER OR PROMOTION, INCLUDING WITHOUT LIMITATION THE WITHDRAWAL OR MODIFICATION OF ANY SUCH OFFER OR PROMOTION.
- Release of Payment Card Networks.
- TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HEAPS AND ITS AFFILIATES, LICENSORS AND SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) EXPRESSLY DISCLAIM ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND NON-INFRINGEMENT. HEAPS AND ITS AFFILIATES, LICENSORS AND SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) DO NOT WARRANT THE DATA, CONTENT, ANALYTICS, FEATURES, OR INFORMATION PROVIDED THROUGH THE PROGRAM, INCLUDING WITHOUT LIMITATION TRANSACTION DATA OR USER SUBMISSIONS OR OTHER DATA PROVIDED BY OTHER USERS, TO BE UNINTERRUPTED, ACCURATE, USEFUL, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS.
- UNDER NO CIRCUMSTANCES WILL HEAPS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS OR PAYMENT PROCESSORS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OR RELATED TO THE PROGRAM, EVEN IF PROGRAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT WILL HEAPS OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’ OR SUPPLIERS’ (INCLUDING PAYMENT CARD NETWORKS’ AND PAYMENT PROCESSORS’) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE PROGRAM (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING HEAPS DURING THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM OR $100.00.
- Dispute Resolution; Waiver of Jury Trial.
- Arbitration; No Class Actions. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, the Services, Heaps Site, your Account or your Wallet (“Disputes”) shall be exclusively settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, you or Heaps may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and you or Heaps may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). You and Heaps agree to arbitrate solely on an individual basis, and that these Terms do not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration set forth in this Section 10.1 is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force. You shall have the right to opt-out of this agreement to arbitrate and the class action waiver set forth in this Section 10.1 by providing written notice of your intention to do so to within thirty (30) days of the execution of these Terms (i.e. the date you register your Account). Witten notice must be sent to email@example.com. Any opt-out request postmarked after that date will not be effective, and you will continue to be bound by the terms of this Section 10.1.
- YOU AND HEAPS AGREES TO WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY OF ANY DISPUTES BY ANY OF THEM AGAINST THE OTHER OR ANY AFFILIATE OF SUCH OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH PARTY AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THESE TERMS.
- Governing Law. These Terms and any and all Disputes shall be controlled, construed and enforced in accordance with the laws of the State of Minnesota regardless of its choice of law provisions.
- Contravention and Invalidity. The invalidity or unenforceability of any particular provision of these Terms shall not affect the other provisions herein, and these Terms shall be construed in all respects as if such invalid or unenforceable provision were omitted. Further, if any provision is held to be overbroad as written, that provision should be considered to be amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and enforced as amended.
- No Waiver. Nothing in these Terms shall be construed to waive rights that cannot be waived under applicable laws. No waiver, express or implied, by Heaps of a default by you under these Terms shall constitute a waiver of any subsequent default nor shall a waiver, express or implied, made by Heaps of a default by you under these Terms have any impact on Heaps’ ability to enforce these Terms to the fullest extent permitted by law.
- Assignment. You shall not transfer or assign these Terms or any of your rights or licenses granted hereunder without prior written consent of Heaps. Heaps may assign these Terms and any of our rights hereunder without restriction. In the event that Heaps is acquired by or merged with a third-party (including through a sale of substantially all of its assets), we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control. Any attempted transfer or assignment by you in violation hereof shall be null and void. Subject to the foregoing, this these Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Headings. The headings of these Terms are for the purpose of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof.
- Force Majeure. We shall not be liable for damages for any delay, interruption, or failure in the performance of Services or with respect to these Terms which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to acts of God, fire, flood, war, government regulations by direction or request, acts of civil or military authorities, market volatility, pandemic, accident, terrorist activities, labor trouble, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions
- Survival. All provisions of these Terms which by their nature extend beyond the expiration or termination of these Terms, including, without limitation, sections pertaining to suspension or termination, Account cancellation, debts owed to Heaps, general use of the Heaps Site, disputes with us, and general provisions, shall survive the termination or expiration of these Terms.
- Changes to Services; Discontinuation. Heaps reserves the right, from time to time and in its sole discretion, to modify, improve, suspend or discontinue any or all of the Services at any time. You agree that we may transfer you to a product or service that is reasonably similar to the discontinued or changed product or service, to the extent such product or service exists. We are not required to provide you with notice of any such changes, suspension, discontinuation, or transfer related to a product, service, or feature, to the extent required or applicable.
- Relationship of the Parties. Heaps is an independent contractor for all purposes. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between you and Heaps, and you shall not have authority to contract for or bind Heaps in any manner whatsoever.