Terms of Use - MoonPay (2024)

DISPUTE RESOLUTION. This outlines how disputes are handled between us. THIS SECTION 11 OF THIS AGREEMENT WILL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.” Please read this Section 11 carefully. It requires that any and all claims between you and MoonPay be resolved by binding arbitration or in small claims court and, to the extent permitted by applicable law, prevents you from pursuing a class action or similar proceeding in any forum. If you are outside the United States, and attempt to bring a claim in one of those countries, arbitration is required for determination of the threshold issue of whether this Section 11 applies to you, as well as all other threshold determinations, including residency, arbitrability, venue, and applicable law. If your country of residence does not enforce arbitration agreements, the mandatory pre-arbitration dispute resolution and notification and prohibition on class actions or representative proceedings provided below still apply to the extent enforceable by law.

Scope of Arbitration Agreement. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before, on, or after the effective date of this Agreement. You agree that any dispute or claim arising out of or relating in any way to the subject matter of the Agreement, to your access or use of the Services, to any advertising or marketing communications regarding MoonPay or the Services, to any products or services sold or distributed through the Services that you received, or to any aspect of your relationship or transactions with MoonPay, will be resolved by binding arbitration, rather than in court, except as otherwise required by law or as otherwise provided in this Arbitration Agreement. In addition, to the extent permitted by applicable law, either you or MoonPay 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). Either you or MoonPay may also, to the extent permitted by applicable law, apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual. You may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.

CASES HAVE BEEN FILED AGAINST MOONPAY—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES.

IF YOU AGREE TO ARBITRATION WITH MOONPAY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST MOONPAY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

Informal Resolution. You and MoonPay agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. You and MoonPay therefore agree that, before either you or MoonPay demands or attempts to commence arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. For sake of clarification only, the informal dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference, unless mutually agreed to by the parties. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify MoonPay that you intend to initiate an informal dispute resolution conference, email [emailprotected], providing your name, telephone number associated with your MoonPay account (if any), the email address associated with your MoonPay account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

Arbitration Rules and Forum

This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certify completion of the informal dispute resolution conference pursuant to Section 11.4. If this notice is being sent to MoonPay, it must be sent by email to the counsel who represented MoonPay in the informal dispute resolution process, or if there was no such counsel, then by mail to General Counsel, at [address]. The arbitration will be conducted by ADR Services, Inc. under its rules and pursuant to the terms of this Agreement. Once the notice certifying completion of the informal dispute resolution conference has been served, the party seeking to arbitrate must then file their arbitration demands with ADR Services, Inc. The demand must include (A) the name, telephone number, mailing address, and email address of the party seeking arbitration; (B) a statement of the legal claims being asserted and the factual bases of those claims; (C) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (D) the signature of the party seeking arbitration. Disputes shall be subject to ADR Services, Inc.’s most current version of its Arbitration Rules, available as of February 3, 2023 at https://www.adrservices.com/services/arbitration-rules or by calling ADR Services, Inc. at 310-201-0010. The fees that shall apply to arbitrations administered by ADR Services, Inc. are set forth on ADR Services, Inc.’s website, available as of February 3, 2023 at https://www.adrservices.com/rate-fee-schedule/. Specifically, the fees set forth in ADR Services, Inc.’s Mass Consumer Non-Employment Arbitration Fee Schedule shall apply when twenty (20) or more arbitration claims are filed which: (X) involve the same or similar parties; (Y) are based on the same or similar claims which arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact; and (Z) involve the same or coordinated counsel for the parties. In all other circ*mstances, the fees set forth in ADR Services, Inc.’s General Fee Schedule shall apply, except that MoonPay will pay the portion of the initial case opening fees (if any) that exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. Payment of all filing, administration, and arbitration fees will be governed by ADR Services, Inc.’s rules. If the arbitrator finds that you cannot afford to pay ADR Services, Inc.’s filing, administrative, hearing, and/or other fees and cannot obtain a waiver of fees from ADR Services, Inc., MoonPay will pay them for you. Any finding that a claim or counterclaim violates the standards set forth in Federal Rule of Civil Procedure 11 shall entitle the other party to recover their attorneys’ fees, costs, and expenses associated with defending against the claim or counterclaim. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68 or a state or local equivalent, if applicable, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made.
If ADR Services, Inc. is not available to arbitrate, the parties will mutually select an alternative arbitral forum. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute. You may choose to have the arbitration conducted by telephone, video conference, or in person in the county where you live or at another mutually agreed location. The parties agree that all of the arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by applicable law. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Agreement, either party may seek to enjoin the arbitration proceeding in court, and the arbitration shall automatically be stayed pending the outcome of that proceeding.
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If the arbitration award includes any injunction or a monetary award that exceeds $100,000, then either party shall have the right to appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing party within fourteen (14) days after the award has become final. ADR Services shall administer the appeal consistent with the JAMS Optional Arbitration Appeal Procedures, available as of February 3, 2023 at https://www.jamsadr.com/appeal/.

Arbitrator Powers. The arbitrator, and not any federal, state, provincial, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable, to the extent permitted by applicable law, except with respect to Section 11.8 below (Waiver of Class, Consolidated, and Representative Actions; Waiver of Public Injunctive Relief), the enforceability of which can only be determined by a court. All disputes regarding the payment of arbitrator or arbitration-organization fees, including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court or arbitration administrator. The arbitration will decide the rights and liabilities, if any, of you and MoonPay. Except as expressly agreed to in Section 11.9 of this Agreement (Batch), the arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator may issue orders (including subpoenas to third parties, to the extent permitted by law) allowing the parties to conduct discovery sufficient to allow each party to prepare that party's claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes. For example, the arbitrator shall preclude oral discovery of either party’s current or former high-level officers absent a showing that the officer has unique, personal knowledge of discoverable information and less burdensome discovery methods have been exhausted. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award, on an individual basis, monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and MoonPay.

Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND MOONPAY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and MoonPay are instead electing to have all disputes resolved by arbitration, except as specified in Section 11(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

Waiver of Class, Consolidated, and Representative Actions; Waiver of Public Injunctive Relief. EXCEPT AS EXPRESSLY AGREED TO IN SECTION 11.9 OF THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND MOONPAY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS EXCEPT AS SET FORTH IN SECTION 11.9. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER EXCEPT AS SET FORTH IN SECTION 11.9. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) a civil court of competent jurisdiction finds all or part of the Waiver of Class, Consolidated, and Representative Actions is unenforceable, the class, collective, or representative action must be litigated in a civil court of competent jurisdiction, but the portion of the Waiver of Class, Consolidated, and Representative Actions that is enforceable shall be enforced in arbitration. The portion of such dispute proceeding in court shall be stayed pending the conclusion of the arbitration. Notwithstanding any other provision in this Agreement, any claim that all or part of the waivers set forth in Section 11.9 is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. This provision does not prevent you or MoonPay from settling claims on a class, collective, or representative basis.

Batch Arbitrations. To the extent permitted by applicable law, to increase efficiency of resolution, in the event 100 or more similar arbitration demands against MoonPay, presented by or with the assistance or involvement of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period: (A) the parties shall cooperate to group the arbitration demands into randomized batches of no more than 100 demands per batch (plus, to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); (B) claimants’ counsel shall organize and present the batched demands to the arbitration provider in a format as directed by the arbitration provider; (C) the arbitration provider shall provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch; and (D) the arbitration provider shall send one set of disclosures per batch and will set up one Arbitration Management Conference per batch. You agree to cooperate in good faith with MoonPay and the arbitration provider to implement such a batch approach to resolution and fees. Disagreements over the applicability of this batch arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this section. Notwithstanding any provision in the Agreement to the contrary, batch arbitrations shall take place in San Francisco, California or, if the parties prefer, by video conference. The parties may also agree to conducting arbitration based on written submissions alone.

Opt Out. MoonPay’s updates to this Agreement do not provide a new opportunity to opt out of the Arbitration Agreement for customers or Users who had previously agreed to a version of this Agreement, and did not validly opt out of arbitration. MoonPay will continue to honor the valid opt outs of customers who validly opted out of the requirement to use arbitration in a prior version of this Agreement. If you are a customer who creates a MoonPay Account for the first time on or after the effective date of this Agreement, you may opt out of this Arbitration Agreement. If you do so, neither you nor MoonPay can force the other to arbitrate as a result of this Agreement. To opt out, you must notify MoonPay in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your MoonPay username (if any), the email address you currently use to access your MoonPay account (if you have one), and a clear statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: [emailprotected]. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.

Survival. This Arbitration Agreement will survive any termination of your relationship with MoonPay.

Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if MoonPay makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to MoonPay.