Terms of Service
Welcome to XCAP, a platform that enables consumers to purchase a variety of tokenised assets both domestically and globally. Please take a few moments to read these terms of service before using our platform.
By using XCAP, you agree to the following terms:
By clicking "I agree" (or a similar language) to these Terms, acknowledging these Terms by other means, or otherwise accessing or using the Site or the Services, you accept and agree to be bound by and to comply with these Terms, including, without limitation, the mandatory arbitration provision in Section 14. If you do not agree to these Terms, then you must not access or use the Site or the Services. Please carefully review the disclosures and disclaimers set forth in Section 12 in their entirety before using any software developed or owned by XCAP. The information in Section 12 provides important details about the legal obligations associated with your use of the Services.
1. Modifications to These Terms
We reserve the right, in our sole discretion, to modify these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by providing notice through the Services or updating the "Last Updated" date at the top of these Terms. Unless we state otherwise in our notice, all such modifications are effective immediately, and your continued use of the Site and the Services after we provide that notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, then you must stop using the Site and the Services.
2. Use of Services
2.1 The Services. XCAP is a technology platform that enables the purchase and sale of tokenised assets. XCAP does not provide any financial, investment, or legal advice. Any investment decisions you make are your own and XCAP will not be liable for any losses or damages that result from your investment decisions.
2.2 Conditions. As a condition to accessing or using the Services or the Site, you represent and warrant to XCAP the following:
2.2.1 if you are entering into these Terms as an individual, then you are of legal age in the jurisdiction in which you reside and you have the legal capacity to enter into these Terms and be bound by them and if you are entering into these Terms as an entity, then you must have the legal authority to accept these Terms on that entity's behalf, in which case "you" (except as used in this paragraph) will mean that entity;
2.2.2 you are not a persons or entities who reside in, are citizens of, are located in, are incorporated in, or have a registered office in the United States of America (Collectively, “US Persons”). Moreover, none of our services are offered to persons or entities who reside in, are citizens of, are located in, are incorporated in, or have a registered office in any restricted territory, as defined below (any such person or entity froma restricted territory, a “restricted person”). We do not make exceptions; therefore if you are a US Person, then do not attempt to use our contracts, protocol or application and if you are a restricted person, then do not attempt to use any of the services, as defined below. Use of a virtual private network (“VPN”) to circumvent the restrictions set forth herein is prohibited.
2.2.3 you are not a member of any sanctions list or equivalent maintained by the United States government, the United Kingdom government, the South African government (including but not limited to the Targeted Financial Sanctions List), the European Union, or the United Nations (collectively, "Sanctions Lists Persons") and you do not intend to transact with any Restricted Person or Sanctions List Person;
2.2.4 you do not, and will not, use VPN software or any other privacy or anonymization tools or techniques to circumvent, or attempt to circumvent, any restrictions that apply to the Services; and
2.2.5 your access to the Services is not (a) prohibited by and does not otherwise violate or assist you to violate any domestic or foreign law, rule, statute, regulation, by-law, order, protocol, code, decree, or another directive, requirement, or guideline, published or in force that applies to or is otherwise intended to govern or regulate any person, property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any domestic or foreign federal, provincial or state, municipal, local or other governmental, regulatory, judicial or administrative authority having jurisdiction over XCAP, you, the Site or the Services, or as otherwise duly enacted, enforceable by law, the common law or equity (collectively, "Applicable Laws"); or (b) contribute to or facilitate any illegal activity.
2.3 As a condition to accessing or using the Services or the Site, you acknowledge, understand, and agree to the following:
2.3.1 from time to time the Site and the Services may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs that XCAP or any of its suppliers or contractors may undertake from time to time; (c) causes beyond XCAP’s control or that XCAP could not reasonably foresee; (d) disruptions and temporary or permanent unavailability of underlying blockchain infrastructure; or (e) unavailability of third-party service providers or external partners for any reason;
2.3.2 we reserve the right to disable or modify access to the Site and the Services at any time in the event of any breach of these Terms, including, without limitation, if we reasonably believe any of your representations and warranties may be untrue or inaccurate, and we will not be liable to you for any losses or damages you may suffer as a result of or in connection with the Site or the Services being inaccessible to you at any time or for any reason;
2.3.3 the Site and the Services may evolve, which means XCAP may apply changes, replace, or discontinue (temporarily or permanently) the Services at any time in its sole discretion;
2.3.4 the pricing information provided on the Site does not represent an offer, a solicitation of an offer, or any advice regarding, or recommendation to enter into, a transaction with XCAP;
2.3.5 XCAP does not act as an agent for you or any other user of the Site or the Services;
2.3.6 you are solely responsible for your use of the Services, including all of your transfers of Tokenised Assets and the custody and control of your Tokenised Assets;
2.3.7 to the fullest extent not prohibited by Applicable Law, we owe no fiduciary duties or liabilities to you or any other party, and that to the extent any such duties or liabilities may exist at law or in equity, you hereby irrevocably disclaim, waive, and eliminate those duties and liabilities;
2.3.8 you are solely responsible for reporting and paying any taxes applicable to your use of the Services; and
2.3.9 we have no control over, or liability for, the delivery, quality, safety, legality, or any other aspect of any Tokenised Assets that you may transfer to or from a third party, and we are not responsible for ensuring that an entity with whom you transact completes the transaction or is authorized to do so, and if you experience a problem with any transactions in Tokenised Assets using the Services, then you bear the entire risk.
2.4 As a condition to accessing or using the Services or the Site, you covenant to XCAP the following:
2.4.1 in connection with using the Services, you only will transfer legally-obtained Tokenised Assets that belong to you;
2.4.2 you will comply with all Applicable Laws in connection with using the Services, and you will not use the Site or the Services if the laws of your country, or any other Applicable Law, prohibit you from doing so;
2.4.3 any Tokenised Assets you use in connection with the Services are either owned by you or you are validly authorized to carry our actions using such Tokenised Assets;
2.4.4 in addition to complying with all restrictions, prohibitions, and other provisions of these Terms, you will ensure that, at all times, all information that you provide on the Site and during your use of the Services is current, complete, and accurate; (b) maintain the security and confidentiality of your private keys associated with your public address, passwords, API keys, private keys associated with your Services account and other related credentials.
3. Fees and Price Estimates
In connection with your use of the Services, you are required to pay all fees necessary for interacting with XCAP, including transaction costs, as well as all other fees reflected on the Site at the time of your use of the Services. Although we attempt to provide accurate fee information, this information reflects our estimates of fees, which may vary from the actual fees paid to use the Services and interact with the XCAP network.
4. No Professional Advice or Fiduciary Duties
All information provided in connection with your access and use of the Site and the Services is for informational purposes only and should not be construed as professional advice. You should not take, or refrain from taking, any action based on any information contained on the Site or any other information that we make available at any time, including, without limitation, blog posts, articles, links to third-party content, discord content, news feeds, tutorials, tweets, and videos. Before you make any financial, legal, or other decisions involving the Services, you should seek independent professional advice from an individual who is licensed and qualified in the area for which such advice would be appropriate. The Terms are not intended to, and do not, create or impose any fiduciary duties on us. You further agree that the only duties and obligations that we owe you are those set out expressly in these Terms.
5. Prohibited Activity
You may not use the Services to engage in the categories of activity set forth below ("Prohibited Uses"). The specific activities set forth below are representative, but not exhaustive, of Prohibited Uses. If you are uncertain as to whether or not your use of the Services involves a Prohibited Use or have other questions about how these requirements apply to you, then please contact us at firstname.lastname@example.org. By using the Site or Services, you confirm that you will not use the Site or Services to do any of the following:
5.1 violate any Applicable Laws including, without limitation, any relevant and applicable anti-money laundering and anti-terrorist financing laws and sanctions programs, such as, without limitation, the U.S. Department of Treasury's Office of Foreign Asset Controls;
5.2 engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under Applicable Law, including but not limited to, sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; use of XCAP’s intellectual property, name, or logo, including use of XCAP’s trade or service marks, without express consent from Flux or in a manner that otherwise harm XCAP; any action that implies an untrue endorsement by or affiliation with XCAP;
5.3 use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Site or the Services in any manner;
5.4 engage in activity that violates any applicable law, rule, or regulation concerning the integrity of trading markets, including (but not limited to) the manipulative tactics commonly known as spoofing and wash trading.
5.5 circumvent any content-filtering techniques, security measures or access controls that XCAP employs on the Site, including, without limitation, through the use of a VPN;
5.6 use any robot, spider, crawler, scraper, or other automated means or interface not provided by us, to access the Services or to extract data, or introduce any malware, virus, Trojan horse, worm, logic bomb, drop-dead device, backdoor, shutdown mechanism or other harmful material into the Site or the Services;
5.7 provide false, inaccurate, or misleading information while using the Site or the Services or engage in activity that operates to defraud XCAP, other users of the Services, or any other person;
5.8 use or access the Site or Services to transmit or exchange Tokenised Assets that are the direct or indirect proceeds of any criminal or fraudulent activity, including, without limitation, terrorism or tax evasion;
5.9 use the Site in any way that is, in our sole discretion, libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, stalking, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive, or otherwise objectionable or likely or intended to incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others;
5.10 use the Site or the Services from a jurisdiction that we have, in our sole discretion, determined is a jurisdiction where the use of the Site or the Services is prohibited;
5.11 harass, abuse, or harm of another person or entity, including XCAP’s employees and service providers; impersonate another user of the Services or otherwise misrepresent yourself; or
5.12 engage in activity that violates any applicable law, rule, or regulation of the United States or another relevant jurisdiction, including (but not limited to) the restrictions and regulatory requirements imposed by U.S. law.
5.13 encourage, induce or assist any third party, or yourself attempt, to engage in any of the activities prohibited under this Section 5 or any other provision of these Terms.
You hereby grant to us a royalty-free, fully paid-up, sublicensable, transferable, perpetual, irrevocable, non- exclusive, worldwide license to use, copy, modify, create derivative works of, display, perform, publish and distribute, in any form, medium, or manner, any content that is available to other users as a result of your use of the Site or the Services (collectively, "Your Content"), including, without limitation, for promoting XCAP, its affiliates, the Services or the Site. You represent and warrant that (a) you own Your Content or have the right to grant the rights and licenses in these Terms; and (b) Your Content and our use of Your Content, as licensed herein, does not and will not violate, misappropriate or infringe on any third party's rights.
7. Proprietary Rights
7.1 Any of XCAP’s product or service names, logos, and other marks used on the Site or as a part of the Services, including XCAP’s name and logo are trademarks owned by XCAP, its affiliates, or its applicable licensors. You may not copy, imitate, or use them without the prior written consent of XCAP or the applicable licensors, and these Terms do not grant you any rights in those trademarks. You may not remove, obscure, or alter any legal notices displayed in or along with the Services.
The Services provide, or third parties may provide, links to other World Wide Web or accessible sites, applications, or resources. You acknowledge and agree that the Company is not responsible for the availability of such external sites, applications or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such site or resource.
9. Modification, Suspension, and Termination
We may, at our sole discretion, from time to time and with or without prior notice to you, modify, suspend or disable (temporarily or permanently) the Services, in whole or in part, for any reason whatsoever. Upon termination of your access, your right to use the Services will immediately cease. We will not be liable for any losses suffered by you resulting from any modification to any Services or from any modification, suspension, or termination, for any reason, of your access to all or any portion of the Site or the Services. The following sections of these Terms will survive any termination of your access to the Site or the Services, regardless of the reasons for its expiration or termination, in addition to any other provision which by law or by its nature should survive: Sections 7 through 15.
10. Assumption of Risks
10.1 All investments made through XCAP involves risk. The value of tokenised assets may rise or fall and investors may lose some or all of their investment. You should carefully consider your investment objectives, financial situation, and risk tolerance before investing.
10.2 The Services and your Tokenised Assets could be impacted by one or more regulatory inquiries or regulatory actions, which could impede or limit the ability of XCAP to continue to make available its proprietary software and, thus, could impede or limit your ability to access or use the Services.
10.3 You acknowledge and understand that cryptography is a progressing field with advances in code cracking or other technical advancements, such as the development of quantum computers, which may present risks to Tokenised Assets and the Services, and could result in the theft or loss of your Tokenised Assets. To the extent possible, we intend to update XCAP-developed or owned software related to the Services to incorporate additional security measures necessary to address risks presented from technological advancements, but that intention does not guarantee or otherwise ensure full security of the Services.
10.4 You acknowledge that the Services are subject to flaws and that you are solely responsible for evaluating any code provided by the Services or Site. This warning and others XCAP provides in these Terms in no way evidence or represent an on-going duty to alert you to all of the potential risks of utilizing the Services or accessing the Site.
10.5 Although we intend to provide accurate and timely information on the Site and during your use of the Services, the Site and other information available when using the Services may not always be entirely accurate, complete, or current and may also include technical inaccuracies or typographical errors. To continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including, without limitation, information regarding our policies. Accordingly, you should verify all information before relying on it, and all decisions based on information contained on the Site or as part of the Services are your sole responsibility. No representation is made as to the accuracy, completeness, or appropriateness for any particular purpose of any pricing information distributed via the Site or otherwise when using the Services. Prices and pricing information may be higher or lower than prices available on platforms providing similar services.
10.6 Any use or interaction with the Services requires a comprehensive understanding of applied cryptography and computer science to appreciate the inherent risks, including those listed above. You represent and warrant that you possess relevant knowledge and skills. Any reference to a type of Tokenised Asset on the Site or otherwise during the use of the Services does not indicate our approval or disapproval of the technology on which the Tokenised Asset relies, and should not be used as a substitute for your understanding of the risks specific to each type of Tokenised Asset.
10.7 Use of the Services, in particular for Tokenised Assets transactions and entering into the XCAP Platform, may carry financial risk. Tokenised Assets and the Network are highly experimental, risky, and volatile. Transactions entered into in connection with the Services are irreversible, final and there are no refunds. You acknowledge and agree that you will access and use the Site and the Services at your own risk. The risk of loss in transacting in Tokenised Assets using XCAP Platform can be substantial. You should, therefore, carefully consider whether such transactions are suitable for you in light of your circumstances and financial resources. By using the Services, you represent and warrant that you have been, are, and will be solely responsible for making your independent appraisal and investigations into the risks of the XCAP Platform. You represent that you have sufficient knowledge, market sophistication, professional advice, and experience to make your evaluation of the merits and risks of any transaction conducted in connection with the Services. You accept all consequences of using the Services, including the risk that you may lose access to your Tokenised Assets indefinitely. All transaction decisions are made solely by you. Notwithstanding anything in these Terms, we accept no responsibility whatsoever for, and will in no circumstances be liable to you in connection with, your use of the Services.
10.8 We must comply with Applicable Law, which may require us to, upon request by government agencies, take certain actions or provide information, which may not be in your best interests.
10.9 You understand that the Service remains under development, which creates technological, transaction related, and other risks when using the Services. These risks include, among others, delays in trades, withdrawals, and deposits resulting from the servers of XCAP or the operator of the Services being offline; an incorrect display of information on the Site in the case of server errors; or transactions using the Services being rolled back in the case of server errors. You acknowledge that these risks may have a material impact on your transactions using the Services, which may result in, among other things, failing to fulfil transactions at your desired price or at all.
10.10 You hereby assume, and agree that XCAP will have no responsibility or liability for, the risks set forth in this Section 10. You hereby irrevocably waive, release and discharge all claims, whether known or unknown to you, against XCAP, its affiliates, and their respective shareholders, members, directors, officers, employees, agents, and representatives, suppliers, and contractors related to any of the risks set forth in this Section 10.
10.11 You are responsible for maintaining the confidentiality of your XCAP account and password. You agree to notify us immediately if you suspect any unauthorised access to your account or any other security breach.
You will defend, indemnify, and hold harmless XCAP, its affiliates, and its and its affiliates' respective stockholders, members, directors, officers, managers, employees, attorneys, agents, representatives, suppliers, and contractors (collectively, "Indemnified Parties") from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss, cost or expense, including without limitation reasonable attorneys' fees, arising out of or relating to (a) your use of, or conduct in connection with, the Site or the Services (including, without limitation, the Service); (b) Tokenised Assets; (c) any feedback or user content you provide to XCAP, if any, concerning the Site or the Services; (d) your violation of these Terms; or (e) your infringement or misappropriation of the rights of any other person or entity. If you are obligated to indemnify any Indemnified Party, XCAP (or, at its discretion, the applicable Indemnified Party) will have the right, in its sole discretion, to control any action or proceeding and to determine whether XCAP wishes to settle, and if so, on what terms, and you agree to corporate with XCAP in the defence.
12 Disclosures; Disclaimers
You acknowledge that your data on the Site may become irretrievably lost or corrupted or temporarily unavailable due to a variety of causes, and agree that, to the maximum extent permitted under Applicable Law, we will not be liable for any loss or damage caused by denial-of-service attacks, software failures, viruses or other technologically harmful materials (including those which may infect your computer equipment), protocol changes by third-party providers, Internet outages, force majeure events or other disasters, scheduled or unscheduled maintenance, or other causes either within or outside our control.
The disclaimer of implied warranties contained herein may not apply if and to the extent such warranties cannot be excluded or limited under the Applicable Law of the jurisdiction in which you reside.
13. Limitation of Liability
In no event shall XCAP’s aggregate liability (together with its affiliates, including its and its affiliates' respective stockholders, members, directors, managers, officers, employees, attorneys, agents, representatives, suppliers, or contractors) arising out of or in connection with the Site and the Services (and any of their content and functionality), any performance or non-performance of the Services, your Tokenised Assets, XCAP platform or any product, service or other item provided by or on behalf of XCAP, whether under contract, tort, negligence, civil liability, statute, strict liability or other theory of liability exceed the lesser of R1000 or the amount of fees paid by you to XCAP under these Terms, if any, in the twelve (12) month period immediately preceding the event giving rise to the claim for liability, except to the extent of a final judicial determination that such damages were the result of XCAP’s gross negligence, fraud, wilful misconduct or intentional violation of the law.
14. Dispute Resolution & Arbitration
14.1 Please read the following section carefully because it requires you to arbitrate certain disputes and claims with XCAP and limits how you can seek relief from XCAP. Also, arbitration precludes you from suing in court. You and XCAP agree that any dispute arising out of or related to these Terms or the Services is personal to you and XCAP and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.
14.2 Any dispute, controversy, or claim arising out of or in relation to these Terms, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with South African Law. There shall be one arbitrator; the appointing authority may be based on mutual agreement, be chosen by the parties or in the absence of such agreement, the court may designate an appointing authority. The seat of the arbitration shall be in Delaware, USA and the language of the arbitration shall be English. The applicable law shall be Delaware federal law or another choice of law determined in XCAP’s sole discretion.
With respect to all persons and entities, regardless of whether they have obtained or used the site for personal, commercial or other purposes, all disputes, controversies or claims must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class action, collective action or other representative proceeding. This waiver applies to class arbitration, and unless we agree otherwise, the arbitrator may not consolidate more than one person's claims. You agree that, by entering into the agreement, you and Balancer are each waiving the right to a trial by jury or to participate in a class action, collective action, or other representative proceeding of any kind.
Each party irrevocably and unconditionally waives any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement in the courts referred to in this Section 14.2.
14.3 To the fullest extent permitted by Applicable Law, any claim arising out of or related to these Terms or the Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Flux will not have the right to assert the claim.
14.4 If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 14 or the parties' ability to compel arbitration of any remaining claims on an individual basis under this Section 14; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 14 is found to prohibit an individual claim seeking public injunctive relief, then that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 14 will be enforceable.
15. General Information
15.2 Consent to Electronic Delivery. You consent to receive all communications, agreements, documents, receipts, notices, and disclosures electronically (collectively, our "Communications") that we provide in connection with these Terms or any Services. You agree that we may provide our Communications to you by posting them on the Site or by emailing them to you at the email address you provide in connection with using the Services, if any. You should maintain copies of our Communications by printing a paper copy or saving an electronic copy. You may also contact us with questions, complaints, or claims concerning the Services at email@example.com.
15.3 Remedies. Any right or remedy of XCAP set forth in these Terms is in addition to, and not in lieu of, any other right or remedy whether described in these Terms, under Applicable Law, at law, or in equity. The failure or delay of XCAP in exercising any right, power, or privilege under these Terms shall not operate as a waiver thereof.
15.4 Severability. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.
15.5 Force Majeure. We will have no responsibility or liability for any failure or delay in performance of the Site or any of the Services, or any loss or damage that you may incur, due to any circumstance or event beyond our control, including without limitation any flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labour dispute, accident, action of government, communications, power failure, or equipment or software malfunction.
15.6 Assignment. You may not assign or transfer any right to use the Site or the Services, or any of your rights or obligations under these Terms, without our express prior written consent, including by operation of law or in connection with any change of control. We may assign or transfer any or all of our rights or obligations under these Terms, in whole or in part, without notice or obtaining your consent or approval.
15.7 Governing Law. The interpretation and enforcement of these Terms, and any dispute related to these Terms, the Site or the Services, will be governed by and construed and enforced under the laws of the State of Delaware, USA. You agree that we may initiate a proceeding related to the enforcement or validity of our intellectual property rights in any court having jurisdiction. For any other proceeding that is not subject to arbitration under these Terms, the courts located in the British Virgin Islands will have exclusive jurisdiction. You waive any objection to venue in any such courts.
15.8 Headings. Headings of sections are for convenience only and shall not be used to limit or construe such sections.
15.9 Entire Agreement. These Terms contain the entire agreement between you and XCAP, and supersede all prior and contemporaneous understandings between the parties regarding the Site and the Services.
15.10 Interpretation. In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless the other agreement specifically identifies these Terms and declares that the other agreement supersedes these Terms.
15.11 No Third Parties. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to the Terms other than the Indemnified Parties.