Last updated: October 20, 2023
The following Terms of Service (the "Terms") constitute a binding agreement between you and Fern Money, LLC ("Fern," “we,” “our,” and “us”), the operator of the Fern financial management platform (the “Platform”). These Terms set forth conditions regarding your access to and use of the Platform. By accessing or using the Platform in any manner, you agree to be bound by these Terms.
If you are entering into these Terms on behalf of an entity, all references to “you” in these Terms refer to the entity and you represent and warrant that you are a duly authorized representative with the authorization to act on behalf of the entity and bind the legal entity to these Terms. In addition, you acknowledge that these Terms include rights, restrictions and obligations on all users of the Platform, including individuals. You may use the Platform only in compliance with these Terms.
If you are an Authorized User for a Customer (as those terms are defined in Section 3), you may access and use the Platform solely on behalf of the Customer, and you agree to comply with these Terms to the extent they are applicable to you. If you are an Authorized User for more than one Customer, you may access and use the Platform on behalf of each Customer, subject to your compliance with these Terms.
As more fully set forth in Section 9.4, you acknowledge that it is solely your responsibility to understand which protocols and cryptocurrency tokens your Fern cryptocurrency wallets can support.
PLEASE NOTE THAT, EXCEPT AS PROVIDED BELOW, THESE TERMS REQUIRE RESOLUTION OF DISPUTES THROUGH USE OF AN ARBITRATION SERVICE. YOU HEREBY AGREE THAT ALL DISPUTES ARISING FROM, RELATED TO, OR IN CONNECTION WITH YOUR USE OF THE SERVICES WILL BE RESOLVED IN ACCORDANCE WITH SECTION 24 BELOW.
Fern reserves the right, at its sole discretion, to modify these Terms at any time and without prior notice. The date of the last modification to the Terms will be posted at the beginning of these Terms. It is your responsibility to check from time to time for updates. By continuing to access or use the Platform, you are indicating that you agree to be bound by any modified Terms.
There are multiple types of users with varying levels of access to the Platform:
You are only eligible to be a Customer if you (i) comply with the obligations in Section 9.1, (ii) Fern determines that you have completed the necessary Know Your Business (“KYB”) checks (as explained in Section 5), and (iii) you pay the Subscription Fee (explained in Section 11).
If you are a Customer or Authorized User, you acknowledge that we may perform, or cause to be performed, KYB procedures on the information you provide, as required by internal policies and as required by applicable guidelines or regulations. You consent to such KYB procedures. You agree that this is a general requirement and in compliance with regulatory rules and guidance, and in no way creates or is deemed to be any form of recommendation or advice by Fern. Fern may in its sole and absolute discretion decline to accept any person’s request in anything, at any time, with no requirement for any reason or explanation; you agree that such decline(s), if any, shall not constitute an opinion, recommendation, or investment, legal or tax advice by Fern.
We may perform background checks on Authorized Users and Customers as required by applicable guidelines or regulations. For example, Fern and/or our partners may have legal obligations under the USA Patriot Act or other applicable laws designed to detect money laundering or other crimes, including obligations to report suspicious activity. We reserve the right to deny any individual the right to access services that are otherwise available on the Platform for any reason, including, without limitation, as a result of information obtained through background checks, regardless of whether or not such information is accurate, truthful, or complete. By engaging with the Platform, you consent to such background checks.
Each Customer and Authorized User must create an account in order to use the Platform. You shall ensure that you provide accurate, complete, and updated registration information (including for KYB procedures). You are responsible for maintaining the confidentiality of your account and credentials, and are fully responsible for any and all activities that occur under your account. You agree to immediately notify Fern of any unauthorized use of your account or any other breach of security. Fern will not be liable for any loss or damage arising from your failure to comply with this section.
You may not transfer your account to anyone else without our prior written permission.
If you would like us to terminate your account, please contact us at email@example.com.
If you are a Customer, you may link your accounts with third-party financial institutions (each, a “Linked Account”) to your account on the Platform in order to facilitate online transfers between your Linked Account(s) and your Platform account. Before you can link a Linked Account, you may be required to verify your control of the Linked Account. We may refuse your linking of an external account to the extent we believe that external account may present a risk to you, Fern, or other users. By linking a Linked Account, you authorize Fern to view the information associated with your Linked Account, including, but not limited to, your account and routing details, balance, transaction history, and other related information (all the foregoing, the “Linked Account Information”) that is made available by the provider of that Linked Account (each, a “Linked Account Provider”). Fern will only use the Linked Account Information as necessary to process transactions that you request through the Platform. You represent and warrant that you are the owner of any Linked Account and have the right to access, use, and authorize us to use the Linked Account for information and funds transfer purposes. If you close any of your Linked Accounts, you are responsible for removing it as a Linked Account to avoid any transaction failure and possible charges related to a failed transaction. YOUR RELATIONSHIP WITH LINKED ACOUNT PROVIDERS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH THE LINKED ACCOUNT PROVIDERS, AND FERN HAS NO CONTROL OVER THEIR MANAGEMENT OF YOUR LINKED ACCOUNTS OR THE RELATIONSHIP BETWEEN YOU AND THE LINKED ACCOUNT PROVIDERS. YOU HEREBY RELEASE FERN AND ITS AFFILIATES FROM ANY CLAIMS ARISING FROM YOUR LINKED ACCOUNTS OR OTHERWISE ARISING FROM YOUR RELATIONSHIP WITH LINKED ACCOUNT PROVIDERS.
If you are a Fulfiller, you will need to temporarily connect one or more of your accounts with third-party financial institutions (each, an “External Fulfiller Account”) to the Platform in order to facilitate any transfer between your External Fulfiller Accounts and a Customer’s Platform account (each transfer, a “Fulfiller Transaction”). Before you can connect any External Fulfiller Account, you may be required to verify your control of the External Fulfiller Account. We may refuse the Platform connection to any of your External Fulfiller Accounts to the extent we believe that one or more of the External Fulfiller Accounts may present a risk to you, Fern, or Fern users. By connecting an External Fulfiller Account, you authorize Fern to view the information associated with each Fulfiller Transaction (the “Fulfiller Transaction Information”) that is made available by the provider of that External Fulfiller Account (each, an “External Account Provider”). Fern will only use the Fulfiller Transaction Information as necessary to process your Fulfiller Transactions. You represent and warrant that you are the owner of any External Fulfiller Account and have the right to authorize us to use the Fulfiller Transaction Information to process your Fulfiller Transactions. Once a connection between the Platform and one of your External Fulfiller Accounts is no longer necessary to process your Fulfiller Transactions, the connection between the Platform and that External Fulfiller Account will cease. YOUR RELATIONSHIP WITH EXTERNAL ACOUNT PROVIDERS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH THE EXTERNAL ACCOUNT PROVIDERS, AND FERN HAS NO CONTROL OVER THEIR MANAGEMENT OF YOUR EXTERNAL FULFILLER ACCOUNTS OR THE RELATIONSHIP BETWEEN YOU AND THE EXTERNAL ACCOUNT PROVIDERS. YOU HEREBY RELEASE FERN AND ITS AFFILIATES FROM ANY CLAIMS ARISING FROM YOUR EXTERNAL FULFILLER ACCOUNTS OR OTHERWISE ARISING FROM YOUR RELATIONSHIP WITH EXTERNAL ACCOUNT PROVIDERS.
WITH RESPECT TO CUSTOMER FERN CRYPTOCURRENCY WALLETS AND FULFILLER NON-CUSTODIAL CRYPTOURRENCY WALLETS (THE “FULFILLER WALLETS”), YOU ACKNOWLEDGE AND AGREE THAT (I) IT IS YOUR SOLE RESPONSIBILITY TO UNDERSTAND WHICH PROTOCOLS AND CRYPTOCURRENCY TOKENS YOUR FERN CRYPTOCURRENCY WALLETS AND FULFILLER WALLETS (AS APPLICABLE) CAN SUPPORT; (II) SENDING INCOMPATIBLE CRYPTOCURRENCY TOKENS TO OR FROM YOUR FERN CRYPTOCURRENCY WALLETS OR FULFILLER WALLETS CAN RESULT IN IRRECOVERABLE LOSS OF THOSE TOKENS; (III) FERN HAS NO RESPONSIBILITY OR CONTROL TO PREVENT LOSS OF INCOMPATIBLE TOKENS, AND NO ABILITY TO RECOVER INCOMPATIBLE TOKENS; (IV) FERN HAS NO CONTROL OVER ANY CRYPTOCURRENCY TRANSACTIONS ONCE THEY ARE INITIATED BY CUSTOMERS, THE METHOD OF PAYMENT OF SUCH TRANSACTIONS, OR ANY ACTUAL PAYMENTS OF THESE TRANSACTIONS; AND (V) THE PROCESSING OF TRANSACTIONS FROM FERN CRYPTOCURRENCY WALLETS AND FULFILLER WALLETS IS MANAGED BY THIRD-PARTY CRYPTOCURRENCY PROVIDERS, AND THERE MAY BE DELAYS, FAILED TRANSACTIONS, OR OTHER ISSUES RELATED TO CRYPTOCURRENCY TRANSACTIONS THAT ARE NOT IN FERN’S CONTROL.
The provisions in this Section 10 apply to both Customers and Fulfillers.
By initiating any transaction on the Platform, including through your Authorized Users, you will be deemed to have authorized that transaction.
You are responsible for ensuring that all information you submit through the Platform, including information about Fulfillers and Receivers, is accurate. FERN IS NOT RESPONSIBLE FOR ANY INVALID OR UNINTENDED TRANSACTIONS THAT RESULT FROM YOUR PROVISION OF INACCURATE INFORMATION.
Once you initiate a transaction, you cannot cancel it through the Platform, and Fern has no obligation to do so. If you wish to cancel a transaction that you initiated through the Platform, you are solely responsible for working with any other individuals or entities involved with the transaction to come to a resolution regarding that transaction.
You acknowledge that we monitor for fraudulent activity on the Platform and we can take any actions we deem appropriate in order stop or reduce the risk of fraudulent activity, including terminating transactions that you initiate or are otherwise a party to through the Platform.
For each transaction that you attempt to initiate through the Platform, you acknowledge that it is your sole responsibility to maintain sufficient balances in your Fern account of the applicable currency, including applicable cryptocurrency tokens, for the transaction as well as associated transaction fees.
Each Customer must pay Fern a recurring subscription fee in order to use the Platform (the “Subscription Fee”). Fern will provide Customer the details of the Subscription Fee prior to Customer’s creation of an account, and will provide Customer prior written notice of any changes to the Subscription Fee. By providing a credit card or other payment method for the purchase of a Subscription, Customer represents and warrants that it is authorized to use the designated payment method and that it authorizes Fern (or Fern’s third-party payment processor) to charge Customer’s payment method for the total amount of Customer’s Subscription Fee (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid, or is otherwise not acceptable, Customer’s account and the accounts of its Authorized Users may be suspended or cancelled. Customer must resolve any problem Fern (or Fern’s third-party payment processor) encounters in order to continue using Customer’s Fern account. Customer acknowledges that the Subscription Fee may vary due to promotional offers, changes in the Platform, or changes in applicable taxes or other charges, and Customer authorizes Fern (or Fern’s third-party payment processor) to charge Customer’s payment method for the corresponding amount.
For each blockchain transaction that Customer initiates or completes through the Platform, Fern reserves the right to charge Customer (i) for “gas” charges that result from the transaction, and (ii) a transaction fee.
If an ACH transfer that Customer initiates through the Platform is returned for any reason, Fern may charge Customer a fee for Fern’s processing of the return. Customer must pay the fee within ten (10) days of receiving notice of the charge from Fern. If an unreasonable number of Customer’s ACH transfers are returned, Fern reserves the right to charge Customer additional fees and terminate Customer’s account and the accounts of its Authorized Users.
Using the Platform may require that you pay a fee to parties other than users of the Platform, such as gas charges on the blockchain to perform a transaction. You acknowledge and agree that Fern has no control over any such transactions, the method of payment of such transactions or any actual payments of transactions. Accordingly, you must ensure that you have a sufficient balance of the applicable cryptocurrency tokens stored at your protocol-compatible wallet address to complete any transaction on the blockchain or Platform before initiating such transaction.
It is your responsibility to determine what, if any, taxes apply to the payments you make or receive through the Platform, and to collect, report, and remit the correct tax to the appropriate tax authority.
Fern hereby grants you permission to access and use the Platform, provided such use is in compliance with these Terms, and you further specifically agree that your use will adhere to the following restrictions and obligations:
As between you and Fern, you own all of the information and content that you or your Authorized Users submit through the Platform (collectively, the “Customer Content”). Other than the Customer Content, Fern owns all rights, title, and interest in and to the materials available through the Platform, including, but not limited to, text, graphics, data, articles, photos, images, videos, and illustrations (all of the foregoing except Customer Content, the “Fern Content”).
You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, transmit, broadcast, or otherwise exploit the Fern Content, except as necessary to access and use the Platform in accordance with these Terms.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Platform (“Feedback”). You agree that Fern has the right, but not the obligation, to use such Feedback without any obligation to provide you credit, royalty payment, or ownership interest in the changes to the Platform.
You agree to indemnify and hold Fern, its affiliates, and each of their officers, directors, agents, employees, and representatives (collectively, the “Indemnified Parties”) harmless from any losses, damages, or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (each, a “Claim”) made or brought against any of the Indemnified Parties by a third-party arising out of your breach (or your Authorized Users’ breach) of these Terms or your violation (or your Authorized Users’ violation) of any law or regulation. The Indemnified Parties may also participate in the defense of such actions by employing counsel at their own expense, without waiving your obligations to indemnify or defend. You may not settle or compromise any claim or consent to the entry of any judgment to the extent that the judgment or settlement would prejudice or damage an Indemnified Party, without the prior written consent of the Indemnified Party.
Fern may immediately and without notice terminate these Terms and disable access to the Platform for you and your Authorized Users if Fern determines, in its sole discretion, that (a) you or your Authorized Users have breached these Terms, or (b) you or your Authorized Users have violated applicable laws or regulations, including applicable KYB and anti-money laundering regulations.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: Sections 14 (Content), 15 (Feedback), 16 (Indemnification), 18 (Disclaimer of Warranties), 19 (Limitation of Liability), 24 (Governing Law; Arbitration), and 25 (Entire Agreement).
YOU HEREBY ACKNOWLEDGE THAT YOU ARE USING THE PLATFORM AT YOUR OWN RISK. THE PLATFORM AND FERN CONTENT ARE PROVIDED "AS IS," AND FERN, ITS AFFILIATES, AND ITS THIRD-PARTY SERVICE PROVIDERS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, MERCHANTABILITY, UNINTERRUPTED OR ERROR-FREE OPERATION, AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY, CONDITION, GUARANTEE, OR REPRESENTATION, WHETHER ORAL, IN WRITING, OR IN ELECTRONIC FORM. FERN, ITS AFFILIATES, AND ITS THIRD-PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS, OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED THROUGH THE PLATFORM.
WITHOUT LIMITING THE FOREGOING, YOU HEREBY ACKNOWLEDGE THAT FERN IS NOT A BANK, OTHER FINANCIAL INSTITUTION, OR CRYPTOCURRENCY WALLET PROVIDER, AND FERN DOES NOT CONTROL THE ACTIONS OF ANY BANKS, OTHER FINANCIAL INSTITUTIONS, OR CRYPTOCURRENCY WALLET PROVIDERS THAT MAY BE INVOLVED IN TRANSACTIONS THAT YOU INITIATE OR COMPLETE THROUGH THE PLATFORM. ACCORDINGLY, YOU HEREBY RELEASE FERN AND ITS AFFILIATES FROM ANY CLAIMS OR OTHER LIABILITY ARISING FROM THE FAILURE OF ANY TRANSACTION TO BE PROCESSED AS INTENDED AS A RESULT OF THE ACTIONS OR OMISSIONS OF BANKS, FINANCIAL INSTITUTIONS, CRYPTOCURRENCY WALLET PROVIDERS, OR OTHER PARTIES THAT FERN DOES NOT CONTROL.
Because some states do not permit disclaimer of implied warranties, you may have additional rights under your local laws.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL FERN (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE SUBSCRIPTION AND TRANSACTION FEES YOU PAID TO FERN IN THE TWELVE MONTHS PRECEDING THE CLAIM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Any notices or other communications permitted or required hereunder will be in writing and given by Fern (a) via email (in each case, to the address that you provide) or (b) by posting to the website.
The failure of Fern to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.
You may not assign or transfer these Terms, by operation of law or otherwise, without Fern’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. Fern may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns. Unless a person or entity is explicitly identified as a third-party beneficiary to these Terms, these Terms do not and are not intended to confer any rights or remedies upon any person or entity other than the parties.
If, for any reason, an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
The laws of the State of New York, without reference to its conflict of law rules or principles, shall govern these Terms and any dispute of any sort that might arise between you and Fern with respect to these Terms. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in accordance with the Streamlined Arbitration Rules and Procedures (the “Rules”) of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Rules. The arbitration shall be held in the US county of your most recent physical address or, if there is no such US county, in New York County, New York. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in New York County, New York. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
These Terms constitute the entire agreement between you and Fern regarding your use of the Platform, and supersede all prior written or oral agreements.
If you have any questions about the Platform, please do not hesitate to contact us at firstname.lastname@example.org.