NYDIG User Agreement
Last Updated: September 29, 2020
Pursuant to the terms of this User Agreement: (i) you shall establish with NYDIG an account (the “NYDIG Account”) to be used to receive and hold digital assets on your behalf in connection with your Quontic Bitcoin Rewards Checking Account (“Quontic BRC Account”) with Quontic Bank (“Quontic”); (ii) NYDIG shall provide to you certain services related to your NYDIG Account (the “Services”), including, upon your instruction, the redemption of digital assets for U.S. Dollars, in which case NYDIG will sell such Bitcoin on your behalf and deliver the proceeds of such sale to your Quontic BRC Account; (iii) you undertake certain obligations in connection with your NYDIG Account and the Services; and (iv) you and NYDIG agree to certain contractual provisions regarding the relationship of the parties and the operation and interpretation of the User Agreement.
By establishing a NYDIG Account, you agree to be legally bound by the terms and conditions of this User Agreement, as well as our Privacy Policy and Account Disclosures attached hereto. Please read the documents carefully, and feel free to print a copy.
NYDIG may amend this User Agreement, from time to time, but will provide you with 30 days prior notice of any material amendments. Your continued use of your NYDIG Account and/or the Services following any amendment of the User Agreement shall constitute your acceptance of the amended User Agreement. If you do not agree to any of the terms of the User Agreement (including any amendments of the User Agreement), you should not use the Services, and you should close your NYDIG Account. If you close your NYDIG Account, we will notify Quontic, and Quontic may close or modify your Quontic BRC Account. Similarly, if you close your Quontic BRC Account, NYDIG will close your NYDIG Account.
NYDIG is not an insured depository institution or an SEC-registered broker-dealer. Your NYDIG Account is not insured by the Federal Deposit Insurance Corporation (FDIC) or the Securities Investor Protection Corporation (SIPC).
You should be aware that there are significant risks associated with digital assets and NYDIG has potential conflicts of interest. By establishing a NYDIG Account and/or using the Services, you acknowledge and accept the risks and potential for conflicts of interest as disclosed in the NYDIG Account Disclosures.
1. Your NYDIG Account.
1.1. Account Opening
You hereby authorize NYDIG to open a NYDIG Account for you, to be used to receive and hold digital assets on your behalf in connection with your Quontic BRC Account with Quontic. You hereby agree that you satisfy the eligibility requirements by: (i) being of legal age to form a binding contract (at least 18 years old); (ii) being a U.S. resident; (iii) having a Quontic BRC Account; and (iv) providing required identification information pursuant to NYDIG’s Bank Secrecy Act (“BSA”) and Anti-Money Laundering (“AML”) Compliance Program.
NYDIG may ask you to verify certain personal information that you have previously provided to Quontic, such as your name, address, telephone number, email address, or date of birth. You must keep your contact information, such as your current email address and telephone number, up to date on your Quontic BRC Account.
1.3. Account Features
With your NYDIG Account, you can do the following:
- – receive Bitcoin delivered to your account by NYDIG in connection with the Quontic Bitcoin Rewards Program;
- – hold Bitcoin;
- – view the amount of Bitcoin in your account;
- – view your transaction history; and
- – redeem Bitcoin as described in more detail below.
Quontic is responsible for delivering funds to NYDIG in order for NYDIG to deliver Bitcoin to your NYDIG Account. NYDIG will not deliver Bitcoin to your NYDIG Account unless Quontic has provided such funds.
You acknowledge and accept that NYDIG may use service providers or subcontractors in connection with its provision of the Services to you.
In conjunction with viewing information about your NYDIG Account, you may also see amounts of Bitcoin you may have earned from Quontic that have not yet delivered to your NYDIG Account. For the avoidance of doubt, this amount does not represent any amount of Bitcoin or dollars in your NYDIG Account.
Only you are authorized to access your NYDIG Account. You agree not to grant any other person access to your NYDIG Account. You are solely responsible for the activities of any person that you permit to access your NYDIG Account.
For the avoidance of doubt, you are the sole owner of your Quontic BRC Account and there is no beneficiary for the Quontic BRC Account other than you. At this time, you may not open a Quontic BRC Account that is jointly owned with any other person or that has a beneficiary other than you.
NYDIG is the custodian of the Bitcoin in your NYDIG Account. If NYDIG Execution is your custodian, then NYDIG Execution will hold your Bitcoin as your agent. As the custodian of your Bitcoin Rewards, NYDIG will use reasonable care to keep the Bitcoin in your NYDIG Account safe. NYDIG has no right, interest, or title in the Bitcoin in your NYDIG Account, and such Bitcoin will not be an asset or liability on NYDIG’s balance sheet. For the avoidance of doubt, NYDIG may not transfer, sell, loan or encumber your Bitcoin Rewards, except as directed by you or as otherwise set forth in this User Agreement. Your Bitcoin may be held in one or more omnibus accounts on the Bitcoin blockchain, all controlled by NYDIG. Thus, the Bitcoin in your account will be commingled with the Bitcoin of other NYDIG customers. However, the Bitcoin in your NYDIG Account will never be commingled with the Bitcoin owned by NYDIG or by its affiliates, except for limited periods of time — generally no longer than a day — to facilitate the distribution of Bitcoin into your NYDIG Account or the redemption of Bitcoin from your account.
Quontic shall have no rights with respect to your NYDIG Account other than (1) to provide funds to NYDIG so NYDIG can deliver Bitcoin to your NYDIG Account in connection with Bitcoin Rewards Program; and (2) to see the balance of Bitcoin in your NYDIG Account.
NYDIG will not charge you a fee for opening and maintaining a NYDIG Account, or for receiving Bitcoin Rewards.
NYDIG will charge you a fee for redemptions of Bitcoin in your NYDIG Account, consisting of 2% of the U.S. dollar proceeds of any redemption of Bitcoin in your NYDIG Account. This fee will be deducted from the final proceeds of a redemption of Bitcoin on your behalf by NYDIG before transferring U.S. dollars to your Quontic BRC Account. NYDIG will not charge you a fee for transferring the U.S. dollar proceeds to your Quontic BRC account.
NYDIG may change these fees upon 30 days prior notice to you.
2. Use of NYDIG Accounts; Services and Service Limitations
2.1. Redemptions
You may request a redemption of the amount of the Bitcoin in your NYDIG Account indicated on your most recent monthly account statement by calling the Customer Support line for this product at (800) 908-6600, which is jointly operated with Quontic. NYDIG will only process one redemption request from you per month. A redemption request must be made to the customer support line at least five business days before the month end.
By requesting that NYDIG redeem certain Bitcoin in your NYDIG Account, you (i) agree to be bound by the transaction and (ii) accept the risk (see the Disclosure of Risks section below) associated with such transaction.
If your redemption request is accepted, the redemption will be executed on the last business day of the month and the sale price for your redemption will be the CME CF Bitcoin Reference Rate at 4:00 P.M. London Time on that date, meaning that NYDIG has no duty to obtain a different rate, even if there may be a better rate available.
This means that you will not know the price at which the Bitcoin in your NYDIG Account will be redeemed at the time that you make a redemption request. Because of the significant volatility in the price of Bitcoin, your Bitcoin may be redeemed at a price that is significantly lower than the price of Bitcoin at the time that you make your redemption request.
The proceeds of a redemption, less applicable fees, shall be delivered to your Quontic BRC Account within five (5) business days of execution of the redemption. Proceeds of redemptions will only be delivered to your Quontic BRC Account at Quontic, and only in U.S. dollars. It is not possible to transfer Bitcoin or U.S. dollars from your NYDIG Account to third parties. In addition, it is not possible for you to withdraw Bitcoin in your NYDIG Account to yourself or to another custodian.
NYDIG will confirm whether it has accepted or rejected your redemption request within three (3) business days after such request is made. NYDIG will not be deemed to have accepted a redemption request from you until affirmatively accepted by NYDIG through a written, electronic, or telephonic acknowledgment. NYDIG has the right to delay or reject all or any part of any request for a redemption if in NYDIG’s good faith belief that delay or rejection is reasonably necessary to comply with applicable law, including if NYDIG suspects the transaction may involve money laundering, terrorist financing, fraud, violation of OFAC sanctions, or any other type of financial crime, or if NYDIG believes the request for erroneous or relate to a Prohibited Use.
If you did not authorize a particular redemption or suspect fraudulent activity in your NYDIG Account, please contact Customer Support immediately at (800) 908-6600.
The proceeds of a redemption will generally appear in your Quontic BRC Account on the same or next business day after the redemption is requested. In some instances, it may take longer.
After you request a redemption of the Bitcoin in your account, you may not request the cancellation of the redemption request at any time.
2.4. Forks and Airdrops
Your NYDIG Account only supports Bitcoin.
NYDIG is under no obligation to provide Services for digital assets that have been created as a result of a fork or airdrop, and you acknowledge that you may not immediately or ever have the ability to redeem or withdraw a forked or airdropped digital asset, and NYDIG has no obligation to safeguard any such forked or airdropped assets.
In some cases after a fork of Bitcoin, there may be doubt as to which digital asset is “Bitcoin.” In such a situation, NYDIG will use its commercially reasonable judgment to determine which post-fork digital asset is “Bitcoin.”
Your request to NYDIG to redeem Bitcoin your NYDIG Account does not include a request to redeem any fork or airdrop of Bitcoin.
2.5. Statements
Every month, NYDIG will make available to you an account statement delivered via email. These statements will reflect the balance of Bitcoin in your NYDIG Account, as well as the equivalent U.S. dollar value of such Bitcoin. Additionally, the statement will detail: (1) any fees charged; (2) the date and amount of each receipt of Bitcoin Rewards; and (3) the date and amount of each redemption (described below) of Bitcoin in your NYDIG Account.
While NYDIG strives to provide statements and information that are accurate, there may inadvertently be technical inaccuracies or typographical errors. Accordingly, you should verify all information before relying on it, and all decisions based on information provided by NYDIG are your sole responsibility and we shall have no liability for such decisions.
If you have questions, would like to provide feedback, need assistance, or would like to file a complaint, feel free to contact our Customer Support team by telephone at (800) 908-6600 or by email at [email protected].
New York consumers may also direct unresolved complaints directly to the New York Department of Financial Services (“NYDFS”) at the NYDFS Consumer Complaint Portal by clicking here or by contacting the NYDFS as follows: NYDFS Consumer Assistance Unit, One Commerce Plaza, Albany, NY 12257, 1-800-342-3736.
Transactions involving virtual currencies, such as selling Bitcoin for U.S. dollars, could result in tax liability. NYDIG will provide you with a Form 1099-B to report gross proceeds on Bitcoin sales on NYDIG’s platform.
Nevertheless, you understand that it is your sole responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct in connection with the Services, and to report and remit the correct amounts of taxes to the appropriate tax authorities.
If the IRS informs NYDIG that you are subject to backup withholding, NYDIG may withhold a portion of the proceeds owed to you in connection with a redemption in order to comply with the IRS directive.
Your legal representative should notify us promptly in the event of your death. If we are notified of your death, we may require that appropriate documentation, such as a death certificate, letters testamentary, or court order be provided to us for our review, and we may freeze your NYDIG Account. Subject to applicable law and legal process, NYDIG may determine, based on a review of applicable documentation, who is entitled to receive your Bitcoin Rewards, and NYDIG may transfer the U.S. value of your Bitcoin Rewards to the personal representative of your estate or to your beneficiary, provided that such representative or beneficiary has been approved pursuant to NYDIG’s AML and Sanctions Program.
If NYDIG has no record of your use of the Services for several years and is unable to contact you, applicable law may require NYDIG to report or deliver the value of the Bitcoin in your NYDIG Account as unclaimed property to the state in which you reside. At the time that we deliver the value of the Bitcoin to your the applicable jurisdiction, NYDIG may at its option deliver either Bitcoin or redeem the Bitcoin and deliver cash. If NYDIG choses to deliver in cash and the price of Bitcoin increases thereafter this may result in a loss of potential value to you; if we choose to deliver Bitcoin and the price of Bitcoin thereafter decreases this may also result in a loss of potential value to you.
NYDIG will keep appropriate records regarding the Services for a period of time as required by applicable law, after which retention of the records will be at NYDIG’s discretion.
2.11. Intellectual Property
NYDIG shall retain all right, title, and interest (including all copyright, trademark, patent, trade secrets, and all other intellectual property rights) in the Services. Use of NYDIG intellectual property, name, marks, or logo, without express, prior written consent from NYDIG is strictly prohibited.
2.12. Bitcoin Network
NYDIG cannot and does not guarantee the value of Bitcoin. NYDIG does not control the decentralized peer-to-peer network used to transfer Bitcoin (the “Bitcoin Network”) and therefore is not responsible for the services provided by the Bitcoin Network – in particular, verifying and confirming transactions that are submitted to the Bitcoin Network. NYDIG cannot cancel or reverse a transaction that has been submitted to the Bitcoin Network. Once a transaction has been submitted to the Bitcoin Network, it cannot be cancelled or modified. You acknowledge and agree that, to the extent NYDIG did not cause or contribute to a loss you suffers in connection with any redemption initiated, NYDIG will have no liability for that loss. NYDIG has no control over the Bitcoin Network and therefore does not ensure that any transaction request NYDIG submits to the Bitcoin Network will be completed. You acknowledge and agree that the redemption request you instruct NYDIG to submit on the Bitcoin Network may not be completed, or may be substantially delayed, by the Bitcoin Network and NYDIG is not responsible for any delay or any failure of completion caused by the Bitcoin Network. When you make a redemption request to NYDIG, you authorize NYDIG to submit a request to the Bitcoin Network to transfer digital assets to settle the redemption of digital assets on your behalf.
Although NYDIG strives to provide you with best in class service without delay, no service provider can guarantee service without interruption. Access to the Services may be disrupted or unavailable due to circumstances beyond our control. This could result in the inability to redeem for a period of time and may lead to support response time delays.
2.14. Force Majeure
NYDIG will not be responsible under this User Agreement for any failure to perform its duties, and will not be liable hereunder for any loss or damage in association with such failure to perform, for or in consequence of any circumstance or event which is beyond the reasonable control of NYDIG or any agent of NYDIG and which adversely affects the performance by NYDIG of its obligations hereunder or by any other agent of NYDIG, including any event caused by, arising out of or involving (i) an act of God, (ii) accident, fire, water or wind damage or explosion, (iii) any computer, system or other equipment failure or malfunction caused by any computer virus or other malicious code or the malfunction or failure of any communications medium or any phishing or spoofing or other attack, (iv) any interruption of the power supply or other utility service, (v) any strike or other work stoppage, whether partial or total, (vi) any disruption of, or suspension of trading in, the digital asset markets, or (vii) any other cause similarly beyond the reasonable control of NYDIG.
For the avoidance of doubt, NYDIG has not and will not provide you with investment, legal, tax, or any other type of advice. NYDIG is not responsible for any decision you make in connection with the Services. NYDIG may make available certain information about Bitcoin and other digital assets, including investment strategies with respect to such, and its own research reports and market commentaries as well as materials prepared by others. None of this information is personalized or in any way tailored to reflect your individual financial circumstances or investment objectives and may not be suitable for you.
3. Additional User Obligations and Agreements
You are solely responsible for maintaining the security of your NYDIG Account login credentials and any other form of authentication. If you suspect that your NYDIG Account has been compromised, or that you have been a victim of fraud or attempted fraud, or any other security incident, you must notify NYDIG immediately at (800) 908-6600.
You agree not to use the Services for any illegal purpose, including, but not limited to, laundering money, engaging in fraud or attempted fraud, manipulating the digital asset markets, or violating any applicable sanctions programs, including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”).
In addition, you will not engage in any of the following activities, either directly or through a third party: (i) attempt to gain unauthorized access to the Services or another User’s NYDIG Account; (ii) make any attempt to bypass or circumvent any security features; (iii) reproduce, duplicate, copy, sell or resell the Services or access to the Services for any purpose except as authorized in this User Agreement; (iv) engage in any activity that is abusive or interferes with or disrupts the Services. Use of the Services in connection with any transaction involving illegal products or services is prohibited; or (v) reverse engineer or decompile any part of the Service.
NYDIG reserves the right to monitor, review, retain, or disclose any information of yours as necessary to satisfy any applicable law, regulation, legal process, or governmental request. NYDIG also reserves the right to cancel or suspend your NYDIG Account or block or freeze funds if we determine that your NYDIG Account is associated with a prohibited use.
You authorize NYDIG to record any and all telephonic or other oral instructions given to NYDIG by you or on your behalf.
You consent to us accessing, processing, and retaining any personal data provided to us by you or Quontic in connection with the Services. For more information regarding the protection of your personal data, see NYDIG’s Privacy Policy.
3.5. Electronic Documents
You consent to the delivery of confirmations, statements, and any other required or optional communication pursuant to this User Agreement or under any applicable law or regulation by email, Web site or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered to you electronically are deemed to be “in writing.” If your signature or acknowledgment is required or requested with respect to any such document and you “click” in the appropriate space, you will be deemed to have signed or acknowledged the document to the same extent and with the same effect as if you had signed the document manually. You acknowledge that you have the right to withdraw its consent to the electronic delivery and signature of documents at any time by providing prior written notice.
You agree to cooperate with any reasonable request NYDIG makes in connection with responding to formal or informal inquiries made by exchanges or regulatory, self-regulatory or governmental authorities in connection with the Services. You further agree to notify NYDIG of any legal proceedings or formal or informal inquiries made by exchanges or regulatory, self-regulatory or governmental authorities pertaining to your business activities relating to digital assets.
You authorize us to investigate where we deem it necessary to protect you or us against money laundering, terrorist financing, fraud or other financial crime, and to take action we reasonably deem necessary based on the results of such inquiries. When we carry out these inquiries, you acknowledge and agree that your personal information may be disclosed to financial crime agencies.
4. Term and Termination
This User Agreement will begin when you establish a NYDIG Account and will continue unless otherwise terminated as provided herein.
NYDIG reserves the right to suspend, change, limit, modify or terminate, without prior notice, all or any part of your access to the Services if NYDIG reasonably determines that: (i) the use of your account is associated with a Prohibited Use or you have otherwise violated the terms of this User Agreement; (ii) NYDIG is required to do so by governmental authority or court order; (iii) you have violated applicable law or regulation; or (iv) that it is necessary to protect NYDIG.
In addition, NYDIG shall terminate your NYDIG Account if your Quontic BRC Account is terminated pursuant to this Section.
If you move and are no longer a resident of a supported state, NYDIG will close your NYDIG Account.
NYDIG may also suspend, change, limit, modify or terminate your NYDIG Account, without limitation and for any reason whatsoever, if it provides 30 days prior notice to you.
If NYDIG terminates your account, it will use reasonable efforts to notify you, as soon as reasonably practicable, and return the value of the Bitcoin in your NYDIG Account to your Quontic BRC Account on the same or next business day, unless prohibited by law from doing so, for example, under applicable sanction programs. In the event of termination, NYDIG will redeem all the Bitcoin in your NYDIG Account at the CME CF Bitcoin Reference Rate and deliver to your Quontic BRC Account the U.S. dollar value of all Bitcoin in your NYDIG Account as soon as reasonably possible. NYDIG will deduct 2% of the amount before transferring U.S. dollars to your Quontic BRC Account.
You may request to terminate your NYDIG Account at any time by contacting NYDIG at Customer Support at (800) 908-6600. In the event that you terminate your NYDIG Account, NYDIG will treat your notice of termination as a redemption request for all Bitcoin in your NYDIG Account, and redeem and deliver such Bitcoin in the same manner as if NYDIG had terminated your account.
Termination will not release either party from any liability or responsibility that arose from or occurred in connection with this User Agreement prior to the termination. For the avoidance of doubt following termination of your NYDIG Account you shall retain no rights whatsoever with respect to any assets or potential assets in your NYDIG Account other than delivery of the USD redemption proceeds of the Bitcoin in your NYDIG Account.
5. Indemnification and Limitation of Liability
You will indemnify and hold harmless NYDIG and its employees, agents, consultants, subsidiaries, affiliates, partners, and licensors from any and all claims, costs, losses, damages, liabilities, judgments, and expenses resulting from or otherwise related to this User Agreement or your use of the Services.
NYDIG, including its officers, directors, members, affiliates, employees, agents, licensors, service providers, and subcontractors will have no liability, contingent or otherwise, to you or any third parties for any losses, liabilities, judgments, suits, actions, proceedings, claims, damages, costs, awards, fines, penalties, settlements or other expenses (including attorneys’ fees and disbursements), whether direct, indirect, special, incidental or consequential arising from or occurring in connection with this User Agreement, its performance or breach thereof, even if NYDIG knew of the possibility of such losses, except if the losses are found to have resulted solely from the gross negligence, willful misconduct or fraud of NYDIG.
Additionally, NYDIG will not have any liability to you or any third party for errors made by any third-party connection or communication service in reading, processing or executing your instructions. You are solely responsible for any losses, damages or costs resulting from your reliance on any data or information that NYDIG may provide in connection with your use of the Services. You will make your own independent decision to use NYDIG. Finally, NYDIG will have no liability for the acts or omissions of any third parties providing any goods or services pursuant to this User Agreement.
Notwithstanding anything in this User Agreement to the contrary, NYDIG will in no event be liable for any consequential, indirect, special or punitive damages.
6. Miscellaneous
6.1. Entire Agreement
This User Agreement and our Privacy Policy constitutes the entire agreement of the parties hereto with respect to its subject matter and supersedes any existing agreements between the parties, whether oral or written, concerning this subject matter.
6.2. No Third Party Beneficiaries
A person who is not a party to this User Agreement has no right to enforce any term of this User Agreement.
6.3. Assignment and Change of Control
Neither you nor NYDIG may assign, sub-license, sub-contract, change or otherwise encounter any of their respective rights or obligations under the User Agreement without the prior written consent of the other party; provided, however, that NYDIG may assign its rights and obligations under the User Agreement to any affiliate of NYDIG that is chartered or licensed to provide the Services or to any entity which succeeds to all or substantially all of the assets and business of NYDIG without your prior written consent.
In the event that NYDIG is acquired by or merged with a third party entity, we reserve the right to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control.
6.4. No Waiver
No waiver of any provision of this User Agreement will be deemed to have occurred by the failure or delay by NYDIG in exercising any right or remedy provided in this User Agreement.
The single or partial exercise of any such right or remedy by NYDIG will not preclude any other or further exercise of any other right or remedy. The rights and remedies provided in this User Agreement are separate, independent and cumulative and not exclusive of any rights or remedies to which NYDIG is at any time entitled anywhere, whether by operation of law or otherwise.
6.5. Governing Law
This User Agreement, the Services provided pursuant to it, any transaction effected in connection with it, and all other matters arising under it will be governed by the laws of the State of New York, without regard to the conflicts of law provisions thereof. Any litigation or other dispute resolution between the parties relating to this User Agreement will take place in New York County, New York. The parties consent to personal jurisdiction of and venue in the state and federal courts within that county. Each party acknowledges that a breach this User Agreement may cause the other irreparable injury and damage. Therefore, injunctive relief may be sought in addition to any other rights and remedies which may be available to the party at law or in equity.
6.6. Arbitration
You agree that any dispute arising out of or relating to this User Agreement or to your use of the Services, including, without limitation, federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation, or any other legal theory, shall be resolved through binding arbitration. Arbitration shall be conducted in accordance with the American Arbitration Association’s rules for arbitration of consumer-related disputes (accessible at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf ). This agreement to arbitrate includes, without limitation, disputes arising out of or related to the enforceability, revocability, scope, or validity of the User Agreement, including this provision regarding arbitration. All such matters shall be decided by an arbitrator and not by a court or judge. You agree to waive your right to a trial by jury.
6.7. Waiver of Class Action
To the extent permissible by law, claims must be brought in a party’s individual capacity, not as a plaintiff or class member in any purported class action. You agree to waive your right to participate in a class action.
6.9. Survival
All provisions of this User Agreement which by their nature extend beyond the expiration or termination of the User Agreement, including, for example, the Arbitration clause, shall survive the termination or expiration of this User Agreement.
If any one or more of the provisions of this User Agreement is held to be unenforceable or void, that provision(s) will be limited and construed so as to make it enforceable, or, if such limitation or construction is not possible, that provision(s) will be deemed stricken from this User Agreement. In any event, all other provisions of this User Agreement will remain in full force and effect.
NYDIG Account Disclosures
In connection with your establishment of an account with NYDIG in accordance with the terms of that certain User Agreement, by and between you and NYDIG (the “User Agreement”), NYDIG hereby provides you with the following disclosures and information.
Capitalized terms not otherwise defined in these NYDIG Disclosures shall have the meaning given to them in the User Agreement.
1. Disclosure of Risks
You hereby acknowledge the following risks:
1. Digital units that are used as a medium of exchange or a form of digitally stored value (“Virtual Currency”) are not legal tender, and are not backed by the government.
2. Digital assets in the NYDIG Account are not “deposits” within the meaning of U.S. federal or state banking law, and balances of digital assets in the NYDIG Account are not subject to Federal Deposit Insurance Corporation (“FDIC”) or Securities Investor Protection Corporation (“SIPC”) protections.
3. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of Virtual Currency.
4. If any Bitcoin in your NYDIG Account is deemed to be a security under state or Federal securities laws or if providing custody services or the ability to withdraw with respect to such Bitcoin would otherwise violate applicable state or federal laws, NYDIG will make reasonable efforts to return such Bitcoin to you but such Bitcoin may become temporarily or permanently inaccessible to you.
5. The software and cryptography that governs the protocols of Digital Asset Networks have short histories and could at any time be found ineffective or faulty, which could result in the complete loss of value or theft of the Bitcoin in your NYDIG Account.
6. No physical, operational and cryptographic system for the secure storage of private keys is perfectly secure, and loss or theft due to operational or other failure is always possible.
7. Transactions in Virtual Currency may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable.
8. Some Virtual Currency transactions shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that the customer initiates the transaction.
9. The value of Virtual Currency may be derived from the continued willingness of market participants to exchange government-issued currency that is designated as legal tender in its country of issuance through government decree, regulation, or law (“Fiat Currency”) for Virtual Currency, which may result in the potential for permanent and total loss of value of a particular Virtual Currency should the market for that Virtual Currency disappear.
10. There is no assurance that a person or entity who accepts a Virtual Currency as payment today will continue to do so in the future.
11. The volatility and unpredictability of the price of Virtual Currency relative to Fiat Currency may result in significant loss over a short period of time.
12. The nature of Virtual Currency may lead to an increased risk of fraud or cyber-attack.
13. The nature of Virtual Currency means that any technological difficulties experienced by NYDIG may prevent the access or use of the Bitcoin in your NYDIG Account.
14. Any bond or trust account maintained by NYDIG for the benefit of its customers may not be sufficient to cover all losses incurred by customers.
15. NYDIG may maintain insurance on the Bitcoin it custodies but you should expect that it will not cover the value of any Bitcoin in your account.
16. The Electronic Funds Transfer Act and Regulation E and their protections do not apply to your NYDIG Account or any of the related Services provided by NYDIG to you.
2. Conflicts of Interest
NYDIG and its affiliates have interests that may differ from or conflict with your interests. As a result of these conflicts, NYDIG may have an incentive to favor its own interests and the interests of its affiliates over you. NYDIG has certain policies and procedures in place that are designed to mitigate the potential conflicts identified. There is no guarantee, however, that the policies and procedures adopted by NYDIG will be able to detect and prevent every situation in which a conflict may appear. The following is a non-exhaustive list of potential conflicts:
Simultaneous Trading. NYDIG may be involved in digital asset transactions for its own account or for the accounts of other customers. In certain cases, NYDIG may be in the process of executing orders from other customers when it receives your redemption request. Alternatively, while it is in the process of processing a redemption request for you, NYDIG may receive additional orders from other customers. The orders that NYDIG executes for itself or for its other customers could, depending on the size and timing of such orders, impact the 4:00 pm redemption price that you receive. NYDIG has no duty to seek best execution pricing when executing a trade on your behalf. The impact could include reducing the US dollar proceeds of your redemption.
Business Opportunities and Related Activities. NYDIG and its affiliates engage in a broad spectrum of other activities. In the ordinary course of business activities, NYDIG and its affiliates may engage in activities where the interests of NYDIG, its affiliates, or their customers may conflict with your interests.
Variation in Compensation. NYDIG will charge different customers different prices for its services, which may incentivize it to favor certain customers over others.
Trading by NYDIG and Affiliates. NYDIG and its affiliates may invest in or trade in Bitcoin, including at the same time as you, and including in positions that are opposite to those taken by you. In addition, a conflict of interest could occur if NYDIG is aware of customer orders or imminent customer orders and executes a trade for its own inventory (or the account of an affiliate) while in possession of that knowledge.
