Legal & Privacy

This Digital Asset Account Services Master Services Agreement (the “Agreement”) is entered into between Circle Internet Financial, LLC, a Delaware limited liability company (“Circle”), and the legal entity that accepts this Agreement (“Distributor”).  This Agreement is effective as of the date Distributor accepts it in accordance with Section 16(j) (the “Effective Date”).  Each of Circle and Distributor is a “Party” and together the “Parties.”

Distributor wishes to participate in Circle’s Digital Asset Account Services program as a distributor of those services to its End Users (the “Distributor Program”), and Circle is willing to make the Digital Asset Account Services available to Distributor for that purpose pursuant to the terms of this Agreement.  In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.

1. Definitions

Capitalized terms used in this Agreement have the meanings set forth below or as defined elsewhere in this Agreement.

2. Provision of Services

Subject to the terms of this Agreement, Circle will provide the Services to Distributor from and after the Effective Date.  Circle is only required to provide the Services in respect of Distributor’s business as described in Distributor’s registration with Circle and only to the extent permitted by applicable Legal Requirements.  Distributor must obtain Circle’s prior written consent (email sufficient) before materially changing the products or services it sells or making material changes to its integration following Implementation Approval.

(a)  Digital Asset Account Services

Subject to this Agreement, Circle will enable Distributor to provision and operate custodial digital asset accounts (each, a “Digital Asset Account”) via the Circle API for use by eligible End Users (the “Digital Asset Account Services”).  Each Digital Asset Account permits the applicable End User, through Distributor’s interface, to: (i) hold a balance of Supported Digital Currencies attributed to such End User on Circle’s internal ledger; (ii) mint Supported Digital Currencies through Circle’s minting infrastructure by converting eligible fiat currency (a “Mint”); (iii) burn or redeem Supported Digital Currencies through Circle’s redemption infrastructure into fiat currency (a “Burn”); and (iv) send Supported Digital Currencies to and receive Supported Digital Currencies from on-chain addresses via supported blockchain networks (an “On-Chain Transfer”).  The Digital Asset Account Services support stablecoin assets only; non-stablecoin digital assets, in-account swaps between asset types, yield, staking or earn products, consumer-facing or consumer-financial-product features, and corporate card, spend-management or bill-payment products are out of scope and not provided.

(b)  Circle API; License to Use

Circle will make available to Distributor one or more Circle APIs through which Distributor may access and use the Digital Asset Account Services on behalf of its End Users, in accordance with the Documentation and the limits set forth in this Agreement.  Subject to the terms of this Agreement, Circle grants Distributor a limited, non-exclusive, non-sublicensable, non-transferable, revocable license during the Term to electronically access and use the Circle APIs solely for the purposes set forth in this Agreement.  Distributor may not (i) claim or register ownership of any rights in the Circle APIs; (ii) sublicense, sell, rent, lease, or otherwise transfer any rights granted in this Section; (iii) reverse engineer, decompile, or attempt to derive source code from the Circle APIs (except to the extent applicable Legal Requirement prohibits such restriction); (iv) export the Circle APIs to a Sanctions Target or any Restricted Territory; (v) use the Circle APIs in any manner that violates this Agreement, the Documentation, or any Legal Requirement; or (vi) attempt to do any of the foregoing.  All right, title and interest in and to the Services, the Circle APIs, all related technology, and any improvements thereto remain with Circle and its licensors.  Distributor’s access to the production environment of the Circle APIs is conditioned on receipt of Implementation Approval under Section 2(e).

(c)  Account Registration; Authorized Distributor Individuals

To access the Services, Distributor must register with Circle and provide current, complete and accurate information about its legal entity, beneficial ownership, controlling parties, business activities, contact information, and such other items as Circle reasonably requires for identity verification and AML/CFT, fraud and sanctions screening.  Distributor will promptly notify Circle of any material change to the foregoing.  Only Authorized Distributor Individuals may access and use the Services; each must use the access credentials (“Log-in Credentials”) Circle issues and may not share them.  Distributor is responsible for (i) maintaining the confidentiality and security of all Log-in Credentials, account names, user IDs, passwords, PINs, and other access codes used to access the Services; (ii) all activities occurring under its account or Log-in Credentials, whether or not authorized; and (iii) notifying Circle promptly of any actual or suspected compromise of, or unauthorized access to, its account or Log-in Credentials.  Circle may, from time to time, request additional information or review or update existing information as needed to comply with Legal Requirements; failure to timely provide such information may result in suspension of the Services or closure of Distributor’s account.  Distributor may not maintain more than one account for the same business or use multiple accounts to circumvent restrictions placed on its account.

(d) Distributor Portal

Circle may make available a web-based interface (the “Distributor Portal”) through which Distributor may view activity performed by Circle in connection with the Digital Asset Account Services, including KYB status of End Users, Digital Asset Account balances, Transaction history, and Fees.

(e)  Implementation Approval; Go-Live

Distributor will not launch the Distributor Program, on-board any End User, or use the Circle APIs in production until Circle has reviewed Distributor’s integration, end-to-end user flow, disclosures, and compliance controls and has issued written approval to launch (an “Implementation Approval”); email from Circle’s designated approver is sufficient.  Production credentials will not be issued, and Circle has no obligation to support production use, prior to Implementation Approval.  Distributor will not make material changes to its integration, user flow, branding, or End User-facing disclosures after Implementation Approval without Circle’s prior written consent (email sufficient).  Implementation Approval is given only for the implementation reviewed; it is not a representation or warranty by Circle that Distributor’s implementation complies with Legal Requirements, and Distributor remains solely responsible for compliance with Legal Requirements applicable to its business and interfaces.

(f)  Acceptable Use; Policies

Distributor will, and will cause its End Users and its Service Providers to, comply with all Legal Requirements and with the Circle Policies in connection with use of the Services.  Without limiting the foregoing, Distributor will not (and will not permit any End User or third party to): (i) interfere with, disrupt, damage, or gain unauthorized access to the Services or Circle’s systems, networks, or data; (ii) engage in any criminal, fraudulent, deceptive, abusive, or other unlawful activity; (iii) make the Services available to, or use the Services for the benefit of, anyone other than Distributor and its eligible End Users; (iv) act as a service bureau or pass-through agent for the Services without adding value to its End Users; (v) reverse engineer, copy, frame, scrape, or create derivative works based on the Services except as expressly permitted; or (vi) impose an unreasonable load on the Services or work around any technical limitation or usage limit.  The Circle Policies are incorporated into this Agreement by reference.  Circle may update the Circle Policies from time to time; updates become effective upon posting (or such later date as Circle specifies), subject to Section 5(e).  If any provision in a Circle Policy conflicts with this Agreement, this Agreement controls.

(g)  User Wallet Information

Distributor will, on behalf of each End User, provide to Circle the public wallet address and any other information reasonably requested by Circle (“User Wallet Information”) needed to mint, burn, or transmit Supported Digital Currencies for or on behalf of such End User.  Distributor represents and warrants that it (i) is duly authorized by each End User to provide the applicable User Wallet Information to Circle and (ii) has obtained all necessary consents and approvals to share such information with Circle and to enable Circle to execute the applicable Transaction.  Circle is entitled to rely conclusively on the User Wallet Information provided by Distributor and has no obligation to verify its accuracy, ownership, or suitability.  Circle is not responsible for the accuracy or authenticity of any account number, wallet address, beneficiary identifier, network designation, memo or other identifier that Distributor or any End User provides or includes in any Transaction instruction submitted through the Circle API.  Distributor will be liable to Circle for the amount of any Transaction so executed, even if the Transaction settles to an unintended recipient based on identifiers provided by Distributor or its End User.

3. Distributor Obligations

(a)  Access Requirements

Distributor is responsible for obtaining and maintaining the hardware, software, communications capability, encryption capability and trained personnel needed to access and use the Services, and for protecting its systems against viruses and other unwanted functionalities.  Distributor is solely responsible for selecting the Services it needs, for the accuracy and adequacy of the data it provides, and for the results of using the Services in the operation of its business.  Distributor agrees to use ordinary care in using the Services.

(b)  Operating Procedures

If Circle provides Distributor with written or electronic instructions, operating procedures, input or transmission formats, incoming work specifications, deadlines or cutoff times, transaction limits, or other limitations or requirements relating to use of the Services (collectively, “Operating Procedures”), Distributor will comply with those Operating Procedures and understands that Circle may reject or be unable to process work that does not comply.  Circle may change the Operating Procedures with reasonable prior notice (or, where Circle determines immediate action is necessary to mitigate fraud, security, or regulatory risk, without prior notice).

(c)  Associations

To the extent the Services involve clearing systems including the Federal Reserve system or networks or associations including NACHA (collectively, “Associations”), Distributor agrees that the Services are provided subject to the rules, regulations and guidelines of the Associations, and Circle is not responsible for the acts or omissions of any Association or any other member of an Association.  Circle’s rights and remedies under this Agreement are in addition to, and not in lieu of, its rights and remedies under the Association rules.

(d)  Tier-1 End User Support

Distributor is responsible for providing tier-1 customer support to its End Users, including responding to End User inquiries about account access, Distributor’s interface, Transaction status, and Distributor-Program-level matters.  Circle has no direct support obligation to End Users.  Distributor will escalate to Circle, through the channels and within the timeframes specified in the Documentation, any inquiry that requires Circle action, including suspected fraud, compliance issues, balance discrepancies, or unresolved Transaction errors.

(e)  Losses

Where Circle incurs a loss based on Transactions initiated by Distributor, its Service Providers, employees, agents, or End Users, Distributor will be financially liable for such loss.  Circle may require Distributor to pay any such loss to Circle within five (5) business days of demand.

4. End User Terms; Data, Consents and Privacy

(a)  End User Terms; Click-Through Acceptance

Distributor will surface the End User Terms to each prospective End User through Distributor’s interface and require each End User to affirmatively accept the End User Terms (by click-through or other electronic affirmative-assent mechanism acceptable to Circle) as a condition to provisioning a Digital Asset Account.  For each acceptance, Distributor will transmit to Circle through the Circle API a record of acceptance that includes, at a minimum, the End User identifier, the version of the End User Terms accepted, the timestamp of acceptance, and the IP address from which acceptance was made.  Distributor will not modify, paraphrase, summarize, or surface the End User Terms in a manner that misstates them or impairs their enforceability, and will promptly re-prompt End Users for acceptance when Circle updates the End User Terms and notifies Distributor of the update and requests such re-acceptance.

(b)  Consistency with End User Terms

Distributor will ensure that the terms of service, privacy policy, and any other End User-facing legal terms or disclosures it presents to its End Users in connection with the Distributor Program are consistent with, and do not contradict, expand, narrow, or purport to modify, the End User Terms or any rights or obligations of Circle thereunder.  As between Circle and the End User, the End User Terms control in the event of any conflict.

(c)  Privacy Law Compliance

Each Party will, in connection with its activities under this Agreement, comply with applicable Privacy Laws.  This Agreement does not incorporate a separate data-processing addendum.  Distributor acknowledges and agrees that Circle may disclose Program Data to its Affiliates, Service Providers, payment processing partners, and other vendors as Circle determines necessary or appropriate to provide the Services, manage risk, or comply with Legal Requirements, in each case in accordance with the Circle Privacy Policy.

(d)  Distributor Consents and Notices

Distributor represents, warrants and covenants that it has and will at all times maintain: (i) all necessary rights, lawful bases, and (where required) consents under applicable Privacy Laws to collect User Personal Data from End Users, to share such User Personal Data with Circle (including in connection with KYC/KYB Obligations and the transmission of fraud and risk signals under Section 4(e)), and to enable Circle to Process such User Personal Data for the purposes contemplated by this Agreement; and (ii) clear and complete privacy notices to End Users that (A) inform End Users of the disclosure of their data to Circle in connection with the Services, (B) explain that Circle processes such data both as a processor on Distributor’s behalf and as a controller in accordance with the Circle Privacy Policy, and (C) provide a link to the Circle Privacy Policy.

(e)  Fraud and Risk Signals

Distributor will promptly provide to Circle, upon Circle’s request and in the format Circle reasonably specifies, such fraud, risk, device, behavioral, geolocation, IP, and session-integrity signals as Circle requires to monitor, investigate or mitigate fraud, security, sanctions, or other risks in connection with the Services, End Users, or the Distributor Program.  Distributor will obtain all consents and provide all notices to End Users required to enable the collection, transmission and use of such signals.

(f)  Safeguards

Distributor will maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of the data it holds in connection with the Services, including measures designed to prevent unauthorized access, use, modification or disclosure.  Distributor will promptly notify Circle of any Security Breach involving its systems and will reasonably cooperate (at its own expense) in the investigation and remediation of any suspected unauthorized use of the Services or Security Breach.

5. Circle’s Account-Management Rights

(a)  Transaction Limits

The Services and each Digital Asset Account are subject to transaction, balance, velocity and exposure limits that Circle establishes from time to time at the program, Distributor, End User and Transaction levels.  Circle may decrease any such limit, or impose new limits, upon reasonable prior notice, except where immediate action is required to mitigate fraud or regulatory risk (in which case Circle may act without prior notice).

(b)  Restrictions on Transactions; No Obligation to Execute

Circle has no obligation to accept or execute any Transaction instruction and may refuse, limit, condition, suspend or reverse any Transaction or any portion of the Services that Circle believes: (i) may violate this Agreement, any Legal Requirement, or any obligation Circle owes to a Regulatory Authority, payment processing partner, or financial institution; or (ii) exposes Circle, Distributor, an End User or others to risks unacceptable to Circle (including fraud, security, sanctions, reputational or financial risks).  Circle may provide Distributor with notice (which may be programmatic, via the Circle API) of rejection of any Transaction instruction, but is not obligated to do so.  If Circle accepts a Transaction instruction submitted through the Circle API consistent with this Agreement, that instruction is effective and binding as the act of Distributor itself, whether or not authorized within Distributor’s organization or by the applicable End User, and Distributor has no right to cancel or amend a Transaction instruction after Circle receives it.  Circle may share information related to Transactions or End Users with appropriate financial institutions, Regulatory Authorities, or law enforcement agencies as consistent with Circle’s legal obligations.

(c)  Monitoring; Right to Freeze, Suspend or Close

All activities subject to Circle’s control are subject to Circle’s monitoring.  Circle may, in its sole discretion and at any time without prior notice, freeze, suspend, restrict, or close any Digital Asset Account, reject or reverse any Transaction (to the extent technically possible), or terminate any End User’s access to the Digital Asset Account Services, in each case where Circle determines such action is appropriate to comply with Legal Requirements, manage risk (including fraud, security, or reputational risk), respond to a Regulatory Authority or payment processing partner direction, or enforce the Circle Policies or the End User Terms.  Where reasonably practicable and not prohibited by Legal Requirements, Circle will notify Distributor of any such action.

(d)  Set-Off

Circle is authorized, without prior notice and both before and after demand, to set off the whole or any part of Distributor’s liabilities or amounts payable to Circle (including Fees), whether present or future, actual or contingent, liquidated or unliquidated, against any sums Circle holds for the account of Distributor, under this Agreement or any other agreement between Circle and Distributor.  For this purpose, Circle may convert any currency or digital asset at then-prevailing exchange rates and may set off the amount it estimates in good faith as the liquidated value of any contingent or unliquidated liability.  These rights are without prejudice to, and in addition to, any other rights or remedies available to Circle.

(e)  Service Adjustments; Modifications; Termination on Notice

Circle may modify this Agreement, the Circle Policies, the End User Terms, the Pricing Schedule, the Documentation, or the Services at any time on notice (which may be by email, by posting an updated version, or by another reasonable means).  Distributor’s continued access to or use of the Services after the effective date of any modification constitutes acceptance of such modification.  If Distributor does not accept a modification, its sole and exclusive remedy is to cease using the Services and terminate this Agreement by written notice to Circle prior to the effective date of the modification; thereafter the modified terms apply.  Circle will not be liable to Distributor or any End User for any modification, suspension, discontinuation or termination effected in accordance with this Agreement.

6. Fees and Taxes

(a)  Fees

Distributor will pay Circle the Fees set forth in Exhibit A (Pricing Schedule), or in any pricing page or order form referenced therein.  Circle will invoice Distributor monthly in arrears in U.S. Dollars.  Distributor will pay each invoice within thirty (30) days of receipt.  Late, undisputed amounts may bear interest at one and one half percent (1.5%) per month or the maximum permitted by Legal Requirement, whichever is less.  Circle may suspend the Services if undisputed amounts are overdue by thirty (30) days or more.  Circle may, on prior written notice (email sufficient), migrate the Pricing Schedule to a linked Circle pricing page; pricing changes are otherwise governed by Section 5(e).

(b)  User Fees

Distributor may set fees levied on End Users in connection with Transactions (“User Fees”); provided that all User Fees and any changes thereto are subject to Circle’s prior review and approval, in Circle’s discretion, for compliance with Legal Requirements and the Circle Policies.  Circle may prohibit any User Fee that does not so comply or that creates reputational risk to Circle.

(c)  Taxes

Amounts payable to Circle are exclusive of Taxes.  Distributor is responsible for, and will pay, all Taxes arising in connection with Distributor’s payment to Circle or use of the Services, other than Taxes on Circle’s net income.

7. Intellectual Property; Brand; Publicity

(a)  Reservation of Rights; Feedback and Ideas

Except for the limited license granted in Section 2(b), Circle and its licensors reserve all rights in the Services, the Circle APIs, the Distributor Portal, the Documentation, and all related technology and content.  No rights are granted by implication, estoppel, or otherwise.  Distributor may from time to time submit suggestions, comments, or other feedback regarding the Services (“Ideas”).  Circle may use any Idea without restriction or compensation.  Distributor hereby assigns to Circle all right, title and interest in and to any Idea Distributor submits, and will, at Circle’s expense, provide assistance reasonably requested to perfect such assignment.

(b)  Circle Marks

“Circle,” “USDC,” “EURC,” and other Circle names, logos, and marks (the “Circle Marks”) are trademarks of Circle or its licensors.  Except as expressly permitted in this Agreement or with Circle’s prior written consent, Distributor may not use any Circle Mark.

(c)  White Label; Powered by Circle

The Digital Asset Account Services are made available to End Users on a white-labeled basis under Distributor’s own brand.  Distributor will, if and when requested by Circle (and only in accordance with Circle’s then-current brand guidelines), identify the Digital Asset Account Services as “Powered by Circle,” “in partnership with Circle,” or with such other Circle attribution as Circle specifies.  Any attribution license granted to Distributor under this Section is non-exclusive, royalty-free, non-transferable, and revocable upon notice from Circle, and Distributor will promptly add, modify, or remove the attribution as Circle directs. All goodwill arising from any use of the Circle Marks will inure to the benefit of Circle.

(d)  Publicity

8. Term and Termination

(a)  Term and Auto-Renewal

This Agreement commences on the Effective Date and continues for the Initial Term unless earlier terminated.  At the end of the Initial Term and each Renewal Term, the Agreement will automatically renew for an additional one-year period (each a “Renewal Term”), unless either Party provides written notice of non-renewal at least sixty (60) days before the end of the then-current Term.

(b)  Termination by Distributor

Distributor may terminate this Agreement upon written notice to Circle if (i) Circle commits a material breach of this Agreement that, if curable, is not cured within sixty (60) days following written notice of such breach; (ii) Circle becomes Insolvent; or (iii) Distributor is required to terminate under a Legal Requirement.

(c)  Termination by Circle

Circle may terminate this Agreement (or any Service hereunder) for any reason or no reason upon fifteen (15) days’ prior written notice to Distributor.  In addition, Circle may terminate or suspend this Agreement, in whole or in part, immediately upon written notice if: (i) Distributor commits a breach of Section 2(d), 2(e), 2(f), or 6(a); (ii) Distributor commits a material breach of any other obligation that, if curable, is not cured within thirty (30) days following written notice; (iii) Distributor becomes Insolvent, or any event occurs that, in Circle’s reasonable judgment, materially adversely affects Distributor’s ability to meet its current or future obligations; (iv) Distributor ceases or threatens to cease a material part of its business (other than in connection with a solvent reorganization); (v) Circle is required to do so under a Legal Requirement or by direction of a Regulatory Authority or payment processing partner, or Circle reasonably believes any Transaction, this Agreement, or Distributor’s activities may be contrary to a Legal Requirement or to Sanctions; or (vi) any license, permission, or authorization required for Distributor’s business is withdrawn or terminated.  Circle will not be liable to Distributor or any End User for any termination effected in accordance with this Section.

(d)  Effects of Termination

Upon termination or expiration of this Agreement: (i) all rights and obligations cease, except those that by their nature survive (including obligations under Sections 1, 4, 5(d), 6, 7, 9, 10, 11, 12, 13, 14, 15 and 16); (ii) if Circle terminates for Distributor’s breach, Distributor will pay any unpaid Fees that would have been due through the end of the then-current Term; and (iii) Distributor will continue to pay all Fees accrued through the effective date of termination, plus any Fees accrued during the Wind-Down Period.

(e)  Wind-Down of End User Accounts

Upon any termination or expiration of this Agreement (other than a termination by Circle for a Legal Requirement or regulatory direction, in which case Circle may instruct an accelerated wind-down), Distributor will, within six (6) months from the effective date of termination (the “Wind-Down Period”), migrate each End User and each Digital Asset Account to an alternative provider, close such Digital Asset Account, or otherwise off-board the applicable End User from the Digital Asset Account Services.  During the Wind-Down Period, Distributor will (i) bear sole responsibility for End User communications, migration logistics, and operational off-boarding; (ii) facilitate the withdrawal or transfer of Supported Digital Currency balances by End Users prior to account closure; and (iii) continue to comply with this Agreement.  Circle’s sole obligation during the Wind-Down Period is to provide commercially reasonable cooperation with the orderly off-boarding of End Users (which does not require Circle to develop new functionality, accept new End Users, or extend access beyond the Wind-Down Period), and Circle’s provision of any cooperation or continued access during the Wind-Down Period is conditioned on Distributor’s continued payment of Fees for the Wind-Down Period.  At the end of the Wind-Down Period, Circle may close any then-remaining Digital Asset Accounts without further notice and apply Circle’s unclaimed-property and account-closure procedures to any residual balances.

9. Confidentiality

Each Party will (i) maintain the other Party’s Confidential Information in strict confidence using at least the same degree of care it uses to protect its own confidential information (and in no event less than reasonable care); (ii) not disclose the other Party’s Confidential Information to any third party other than its Service Providers, employees and consultants who have a bona fide need to know and who are bound by use- and non-disclosure restrictions at least as protective as those in this Agreement; and (iii) not use the other Party’s Confidential Information except for the purposes of this Agreement.  The obligations in this Section do not apply to information that: (a) is or becomes publicly available through no fault of the receiving Party; (b) was rightfully known prior to disclosure; (c) is rightfully acquired from a third party without restriction; or (d) is independently developed without use of the other Party’s Confidential Information.  A Party may disclose Confidential Information to the extent required by a Legal Requirement, provided that, where lawful, it gives prompt notice and reasonable cooperation in seeking a protective order.  Upon termination, each Party will, at the other’s election, return or destroy the other’s Confidential Information, subject to retention for compliance purposes or in connection with disputes.

10. Regulatory Compliance

Distributor will, at all times, remain compliant with all Legal Requirements applicable to its business and the Distributor Program, including AML-CFT Requirements.  As between Distributor and Circle, Circle is the system of record for KYB and customer-due-diligence determinations on Business End Users under the Digital Asset Account Services.  Distributor will (i) collect from each prospective End User the KYB information and documentation Circle reasonably specifies and transmit it to Circle through the Circle API before such End User uses the Services, in accordance with Exhibit B, and (ii) perform such ongoing monitoring of its End Users’ activity in relation with the Services as may be required by Legal Requirements applicable to Distributor or as Circle reasonably requests.  Distributor will not use the Services with, or for the benefit of, any Sanctions Target, and will promptly suspend or terminate any End User identified by Distributor or Circle as a Sanctions Target.  Distributor will promptly notify Circle (to the extent permitted by Legal Requirement) of any End User engaging in fraudulent, unlawful, deceptive or abusive activity.  Nothing in this Section prevents Circle from collecting information directly from End Users where Circle deems it necessary to manage risk or comply with Legal Requirements.

11. Audit

Distributor will reasonably cooperate with, and submit to, any examination, inquiry, information request, or site visit required by any Regulatory Authority or payment processing partner with audit or supervisory authority over Circle or its Service Providers, to the fullest extent requested.  In addition, no more than once in any twelve-month period (except as deemed necessary by Circle to monitor compliance with KYC/KYB Obligations or other Legal Requirements), Circle may, at its expense, audit Distributor’s use of the Services and performance under this Agreement.  If an audit reveals any breach by Distributor or any End User of this Agreement, the Circle Policies, the End User Terms, or any Legal Requirement, Distributor will pay the costs Circle incurs in connection with such audit.

12. Representations and Warranties

(a)  Mutual

Each Party represents and warrants that (i) it has the power and authority to enter into this Agreement and perform its obligations; (ii) execution and performance will not violate any agreement to which it is a party; and (iii) it will require its employees, Service Providers, contractors and agents to act consistently with this Agreement.

(b)  Distributor

Distributor further represents, warrants and covenants that (i) it will obtain all consents required from End Users for the use of any User Personal Data and User Transaction Data hereunder; (ii) it will not use the Services in any fraudulent, unlawful, deceptive or abusive manner; (iii) its performance, its agreements with End Users, and its End User-facing disclosures and privacy policies are and will remain compliant with Legal Requirements and consistent with this Agreement; (iv) neither Distributor nor (to its knowledge) any End User is a Sanctions Target; and (v) it will not engage in Transactions involving or benefitting any Restricted Territory or Sanctions Target.

13. Disclaimers; Limitation of Liability

(a)  Disclaimer

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  Circle disclaims all warranties, conditions, terms, obligations, undertakings and representations of any kind, whether express, implied, statutory or otherwise (including any implied warranties of merchantability, fitness for a particular purpose, title, accuracy, system integration, quiet enjoyment, non-infringement, and any warranties arising from course of dealing or trade usage), to the fullest extent permitted by Legal Requirement.  Without limiting the foregoing, Circle does not warrant that the Services will be uninterrupted, error-free, secure, or that defects will be corrected, and Circle does not warrant the results that may be obtained from use of the Services.

(b)  No Liability for Distributor’s Acts and Omissions

Circle is not liable for any failure to perform, or any defective or delayed performance, to the extent caused by: (i) Distributor’s acts, omissions, breach, or instructions; (ii) a suspension or modification permitted under this Agreement; (iii) Circle’s compliance with a Legal Requirement; or (iv) any deferment, withholding, or deduction in connection with the Services.

(c)  Allocation of Money-Movement Responsibility

As between Circle and Distributor, Circle is responsible for the custody, internal-ledger execution, and on-chain dispatch of Transactions performed on Circle’s infrastructure in accordance with the instructions received from Distributor; Distributor is responsible for the Distributor interface, the accuracy and authorization of all instructions transmitted to Circle through the Circle API, and all matters within Distributor’s control.  Once an On-Chain Transfer has been broadcast to the relevant blockchain network in accordance with the instruction received from Distributor, Circle is not responsible or liable for the on-chain execution, settlement, confirmation, miner-extractable-value impacts, gas, network reorganizations, double-spends, slippage, lost or burned funds, or any other on-chain outcome.

(d)  Blockchain and Digital Currency Disclaimers

Distributor acknowledges and agrees, and will ensure each End User is informed via the End User Terms or Distributor’s disclosures, that: (i) blockchain networks operate independently of Circle and are not within Circle’s control; (ii) Circle is not responsible for the availability, performance, confirmation times, fee market, consensus, security, or finality of any blockchain network, or for any fork, reorganization, halt, or replay; (iii) once submitted to a blockchain network, Transactions are irreversible; (iv) Circle is not a fiduciary, investment adviser, broker-dealer or financial planner with respect to Distributor or any End User, and the Digital Asset Account Services are not a deposit account, are not FDIC- or SIPC-insured, and balances are not protected by any government deposit-insurance scheme; (v) the value of Supported Digital Currencies may fluctuate; and (vi) Circle is not liable for losses arising from on-chain activities, third-party wallets, third-party smart contracts, or actions taken by an End User or third party on a blockchain network.

(e)  Consequential Damages

UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER OR ITS AFFILIATES FOR ANY EXEMPLARY, SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR DIMINUTION IN VALUE, ARISING UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATION DOES NOT APPLY TO DISTRIBUTOR’S LIABILITY ARISING OUT OF DISTRIBUTOR’S BREACH OF CONFIDENTIALITY OR DATA PRIVACY OBLIGATIONS, DISTRIBUTOR’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14(a), OR DISTRIBUTOR’S FRAUD.

(f)  Aggregate Cap

EXCEPT FOR (A) AMOUNTS PAYABLE UNDER SECTION 6, (B) DISTRIBUTOR’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14(a), (C) DISTRIBUTOR’S BREACH OF CONFIDENTIALITY OR DATA PRIVACY OBLIGATIONS, AND (D) DAMAGES ARISING OUT OF EITHER PARTY’S FRAUD OR GROSS NEGLIGENCE, EACH PARTY’S AGGREGATE LIABILITY UNDER OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY DISTRIBUTOR TO CIRCLE IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EXCLUDING NETWORK FEES.

(g)  Carve-Outs from Aggregate Cap

Nothing in this Agreement excludes or limits a Party’s liability for (i) fraud or fraudulent misrepresentation; (ii) Distributor’s obligation to pay Fees; or (iii) any liability that cannot be lawfully limited.  If Distributor consists of more than one Person, each is jointly and severally liable for Distributor’s obligations.

14. Indemnification

(a)  By Distributor

Distributor will defend, indemnify, and hold harmless Circle, its Affiliates, and their respective officers, directors, employees, agents and customers from and against any claim, action or proceeding brought by a third party, and all associated losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees), to the extent arising out of or relating to: (i) Distributor’s breach of this Agreement; (ii) a Security Breach of Distributor; (iii) Distributor’s breach of any Legal Requirement (including AML-CFT Requirements and Sanctions); (iv) Distributor’s violation of Section 4 (End User Terms; Data, Consents and Privacy); (v) Distributor’s gross negligence or willful misconduct; (vi) any Distributor interface, user flow, marketing material, disclosure or other End User-facing communication of Distributor (including any alleged misrepresentation, omission, deceptive or unfair act or practice, or failure to comply with consumer-protection or advertising Legal Requirements); (vii) any instruction transmitted to Circle through the Circle API by Distributor or any End User; or (viii) any claim brought by an End User against Circle to the extent arising from or related to the Distributor Program, Distributor’s interfaces, or Distributor’s acts or omissions (excluding any portion of such claim arising solely from Circle’s breach of the End User Terms).

(b)  By Circle 

Circle will defend, indemnify, and hold harmless Distributor from and against any third-party claim alleging that Distributor’s use of the Digital Asset Account Services or the Circle APIs in accordance with this Agreement and the Documentation infringes that third party’s U.S. patent, registered copyright, or registered trademark (an “IP Claim”).  Circle’s obligation under this Section does not apply to the extent the IP Claim arises from or relates to: (i) Distributor’s modification of the Services or its combination, integration, or use of the Services with any non-Circle products, services, technology, content, or branding (including any Distributor or End User content); (ii) Distributor’s use of the Services in a manner not authorized by this Agreement or the Documentation, or in violation of any Legal Requirement; (iii) Distributor’s continued use of the Services after Circle has notified Distributor to discontinue use or made a non-infringing alternative available; (iv) any blockchain network, smart contract, third-party wallet, or other third-party technology not provided by Circle; or (v) any Open Source Software (as defined in the Documentation).  If the Services are alleged or held to infringe, Circle may, at its option and expense: (A) procure for Distributor the right to continue using the Services; (B) modify or replace the affected Services to make them non-infringing while preserving substantially equivalent functionality; or (C) terminate this Agreement or the affected portion of the Services and refund any prepaid, unused Fees for the remainder of the then-current Term.  This Section states Circle’s sole liability and Distributor’s sole and exclusive remedy in respect of any IP Claim.

(c)  Procedure

The Party seeking indemnification will promptly notify the other in writing of any claim, tender sole control of the defense and settlement to the indemnifying Party (provided that no settlement that imposes any non-monetary obligation, admission of liability, or unconsented payment on the indemnified Party may be made without the indemnified Party’s consent), and reasonably cooperate at the indemnifying Party’s expense.  Failure to give prompt notice will not relieve the indemnifying Party except to the extent it is materially prejudiced.

15. Governing Law; Arbitration

This Agreement is governed by, and construed in accordance with, the laws of the State of Delaware and applicable U.S. federal law, without regard to choice or conflicts of law rules.  The Parties consent to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts for any claim not subject to arbitration.  Except for claims for injunctive or equitable relief and claims regarding intellectual property rights, any dispute between the Parties arising out of or relating to this Agreement or the Services will be finally settled on an individual, non-representative basis in binding arbitration in Boston, Massachusetts, under the Comprehensive Arbitration Rules and Procedures of JAMS (available at www.jamsadr.com), as modified by this Agreement.  The arbitration will be conducted by a single neutral arbitrator.  The arbitrator may award any relief a court of competent jurisdiction could award, including attorneys’ fees when authorized by Legal Requirement.  Judgment on the award may be entered in any court of competent jurisdiction, and the award is subject to very limited judicial review.

16. Miscellaneous

(a)  Notices

Notices to Circle must be in writing and sent to [email protected] (with a copy required to Circle’s Legal Department), or to such other address as Circle may designate.  Notices to Distributor may be sent to the email address or postal address provided by Distributor at registration, or as updated by Distributor in writing.  Notice is effective upon receipt for personal or courier delivery, and one Business Day after sending by email.

(b)  Amendment

Except for modifications Circle is permitted to make under Section 5(e), this Agreement may not be modified except by a written instrument executed (or accepted by click-through) by both Parties.

(c)  Entire Agreement

This Agreement (including its Exhibits and the incorporated Circle Policies and End User Terms) is the entire agreement between the Parties regarding its subject matter, and supersedes all prior or contemporaneous agreements, proposals, or representations on that subject matter.

(d)  Assignment

Distributor may not assign this Agreement or any rights or obligations under it, by operation of law or otherwise (including in connection with a merger, change of control, or sale of substantially all of its assets), without Circle’s prior written consent.  Any attempted assignment in violation of this Section is null and void.  Circle may freely assign or subcontract its rights or obligations.  Subject to the foregoing, this Agreement binds and benefits the Parties and their permitted successors and assigns.

(e)  Waiver; Severability

A failure or delay in exercising any right is not a waiver of that right.  If any provision is held unenforceable, it will be modified to the minimum extent necessary to be enforceable, and the remaining provisions will remain in effect.

(f)  Force Majeure

Circle’s obligation to provide any Service is suspended during, and Circle is not liable for any non-performance or delay caused by, a Force Majeure Event.  Circle will promptly notify Distributor of any Force Majeure Event affecting its performance, and the Parties will confer in good faith on what action may be taken to minimize the impact.

(g)  Relationship of the Parties

This Agreement does not create a fiduciary relationship, partnership, joint venture, agency, or relationship of trust between the Parties.  Circle is an independent contractor.  Neither Party may make any representation, warranty, or commitment on behalf of the other.

(h)  Interpretive Matters

“Include” and “including” are non-limiting.  “Or” is inclusive.  Dollar amounts are in U.S. Dollars.  Headings are for convenience only.  References to a statute or regulation include amendments and successor provisions.

(i)  Insurance

Distributor will, at its sole expense and during the Term and for two (2) years thereafter, maintain insurance with insurers having an A.M. Best rating of A- VII or better, with minimum limits as follows: (i) commercial general liability of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate; (ii) cyber liability (covering privacy and security incidents, network and information security, and regulatory defense) of not less than $5,000,000 per claim and in the aggregate; (iii) technology errors and omissions of not less than $5,000,000 per claim and in the aggregate; (iv) commercial crime / financial institution bond covering employee theft, computer fraud, and funds transfer fraud of not less than $2,000,000; and (v) workers’ compensation as required by Legal Requirements.  In any event, and notwithstanding the specific limits set forth above, Distributor will maintain insurance with limits and scope sufficient to cover its obligations and liabilities under this Agreement (including indemnification obligations).  Distributor will name Circle as an additional insured on the policies in clauses (i) and (ii) and will provide certificates of insurance to Circle within fifteen (15) days of the Effective Date and on request thereafter.

(j)  Click-Through Acceptance; Electronic Records

Distributor accepts and agrees to be bound by this Agreement by any of the following: (i) clicking “I Accept” (or a substantially similar affirmative-assent button) where this Agreement (or a link to this Agreement) is presented; (ii) registering for, generating credentials for, or being granted access to the Services; or (iii) accessing or using the Services in any non-test environment.  The individual accepting this Agreement on behalf of Distributor represents and warrants that he or she is authorized to bind Distributor.  No handwritten or wet-ink signature is required, and electronic acceptance has the same legal force and effect as a manually signed agreement.  This Agreement may be presented and accepted electronically, and the Parties’ records of acceptance (including timestamp and IP address) are conclusive evidence of the acceptance and the Effective Date.

EXHIBIT A

PRICING SCHEDULE

All Fees are invoiced monthly in arrears in U.S. Dollars or USDC, unless otherwise agreed by Circle.  

Fees include: 

a. Monthly Minimum Subscription Fee.  [Circle to provide.]

b. Fiat On-/Off-Ramp Fee (Mint / Burn).  [Circle to provide.]

c. On-Chain Transfer Fee (Outbound).  [Circle to provide.]

d. KYB’d Sub-Account Fee.  [Circle to provide.]

e. Foreign Exchange Spread.   [Circle to provide.]

f. Network Fees: Distributor is responsible for all blockchain network (gas) Fees incurred in connection with any Transaction or other use of the Services.  These Fees are dynamic and based on network congestion, are passed through at Circle’s actual or estimated cost, and are billed monthly in arrears.  Network Fees do not credit against the Subscription Fee and are excluded from any liability cap that references Fees.

Activity-based Fees accrue against, and are credited toward, the Subscription Fee. Distributor pays the greater of the Subscription Fee or the sum of accrued activity-based Fees unless otherwise agreed by the Parties.

EXHIBIT B

KYB AND SCREENING REQUIREMENTS

This Exhibit B supplements Section 10 (Regulatory Compliance) and supersedes any conflicting provision elsewhere in this Agreement.  As between Distributor and Circle, Circle is the system of record for KYB and customer-due-diligence determinations on Business End Users.  Distributor will collect from each prospective Business End User the KYB information and documentation that Circle reasonably specifies (including legal name, jurisdiction of formation, formation documents, business address, tax identification number, beneficial ownership and control information, and authorized-signer information) and transmit it to Circle through the Circle API prior to End User account activation, in the format and within the timeframes Circle specifies.  Distributor will promptly provide such additional information, documentation, or clarification as Circle reasonably requests in connection with Circle’s ongoing KYB, sanctions screening, transaction monitoring, or risk-management obligations, for so long as the relevant Business End User account remains active.

Prohibited End Users.  Distributor may not on-board, and Circle may decline or terminate, any End User that (i) is a Sanctions Target or resident or located in a Restricted Territory (see Schedule B-1, Prohibited Countries); (ii) operates under an offshore banking license restricting it from conducting banking activities with citizens of, or in the local currency of, its licensing jurisdiction; (iii) is in violation of the Circle Acceptable Use Policy; (iv) is a “foreign shell bank” as defined in the USA PATRIOT Act; (v) has been the subject of suspicious-activity reporting; (vi) has failed to satisfy KYC/KYB Obligations or enhanced due diligence; or (vii) that Circle identifies in writing to Distributor as a Prohibited End User.

Schedule B-1 – Prohibited Countries.  Afghanistan; Belarus; Central African Republic; Congo (Democratic Republic of); Cuba; Guinea-Bissau; Iran (Islamic Republic of); Iraq; Libya; Mali; Myanmar; North Korea (Democratic People’s Republic of); Russian Federation; Somalia; South Sudan; Sudan; Syria; Ukraine; Venezuela (Bolivarian Republic of); Yemen.  Circle may update this list from time to time.