Effective date: 30/11/2023
These Terms of Use (these "Terms") are important because they describe your rights and obligations when using the Services (defined below) offered by us or our affiliates. Please note that these Terms contain Indemnification , Governing Law, Dispute Resolution , Assumption of Risk and Disclaimer of Warranties and Limitation of Liability sections that affect your rights, including your ability to bring legal claims against us.
These Terms govern your access to and use of the digital asset wallet and communication platform software and related websites and applications that link to these Terms (each, a "Site" and collectively, the "Services"). These Services are operated by Element Wallet, Inc., 401 Congress Avenue, Suite 1800, Austin, TX 78701 ("Service Provider", "we", "us", "our"). By using the Services, you agree to be bound by the terms and conditions contained in these Terms, including Section 11 ("Dispute Resolution"), as well as the Privacy Policy.
SERVICE PROVIDER OPERATES A PLATFORM. WE ARE NOT A BROKER, FINANCIAL INSTITUTION OR CREDITOR. THE SERVICES ARE OFFERED AS AN ADMINISTRATIVE PLATFORM ONLY.
Important disclaimers. The Services are not intended as, and do not provide, any investment or financial advice whatsoever. You should conduct your own research and due diligence investigation, to properly evaluate the benefits and risks of any investment or financial transaction. You should also seek the advice and guidance of qualified accountants, financial advisors, tax advisors, legal counsels and investment advisors, in connection with any investment or financial transaction.
Eligibility. You may not use the Services if you are below the legal age in your jurisdiction or it is otherwise illegal in your jurisdiction for you to access, view and/or use the Services. If any of these conditions apply to you, please leave this Site immediately. If you do not leave this Site, then you will be deemed for all purposes to have represented that none of these conditions apply to you.
Account Registration. To use our Services, you need to create a user account ("User Account"). To create a User Account you must register for our Services using your name and a valid email address. You will also be prompted to create a username (handle) for your User Account. You agree to receive emails (from us or our third-party providers) with verification codes to register for our Services.
Updates to Terms of Use. Your use of the Services is subject to your agreement to these Terms, which may be updated by us at any time with or without notice to you. The Effective Date of the most up to date Terms will be provided at the top of each version of these Terms, respectively. Any such updates will be effective upon our publishing such updated Terms. If you do not agree with these Terms, you may not use the Services.
Updates to the Services. We may update and change our Services from time to time, for example, to reflect changes to our products, our users' needs and our business priorities. We will try to give you reasonable notice of any major changes.
By accessing and using the Services, you represent that you understand the risks inherent to and associated with blockchain networks and cryptographic systems and warrant that you have the technical sophistication and working knowledge required to use, engage, or interact with blockchain networks, cryptographic systems, smart contracts, and digital assets, such as Ether (ETH), Bitcoin (BTC), and Core (CORE) (collectively, "Blockchain Technologies").
By accessing and using the Services, you assume all risks associated with using Blockchain Technologies, including, but not limited to, the risk of hardware, software and internet connections failure or problems, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your Wallet (as defined below). You accept and acknowledge that Service Provider will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using any Blockchain Technologies for processing transactions, however caused.
Additionally, you understand that the markets for cryptographic and digital assets are nascent and highly volatile due to risk factors including (but not limited to) adoption, speculation, technology, security, and regulation. You acknowledge that we are not responsible for any of these variables or risks, do not own or control any blockchain, and cannot be held liable for any resulting losses that you experience as a result of your use of Blockchain Technologies. Accordingly, you understand and agree to assume full responsibility for all of the risks of accessing and using Blockchain Technologies as part of your use of the Services.
Wallet. As part of the Services, you are able to create a so-called "digital asset wallet" (each, a "Wallet") that will allow you to (i) store, send and/or receive certain cryptographic tokens and digital asset(s) designed to be used over the Internet (each, a "Digital Asset" and, collectively, "Digital Assets"); (ii) access and interact with supported decentralized applications or protocols (collectively, "Dapps"); and (iii) additional functionality as Service Provider may add from time to time.
Non-Custodial Digital Wallet. Each Wallet is a non-custodial Digital Wallet. Service Provider will store your private key, but it will be encrypted, and we will not have access to or be able to view your private key. You are solely responsible for safe keeping, storing, and retaining any private key(s). It is important you understand that, should you forget or lose access to any of your private key(s), Service Provider will be unable to reset or recover it for you or may not be able to assist you in regaining access to any applicable Wallet(s), and you may not be able to recover any Digital Assets stored in such Wallet(s).
Seed Phrase. A so-called "seed phrase" is a mnemonic series of words generated in connection with the creation of a Wallet that allows you to access the Digital Asset(s) associated with the Wallet. As long as you have your seed phrase, you will be able to access the Digital Asset(s) associated with the Wallet connected to such seed phrase—even if you delete such Wallet from the Services or otherwise lose access to such Wallet. Service Provider does not have access to or ability to view any of your seed phrases. You are solely responsible for safely and securely retaining your seed phrase(s) and Service Provider will not be able to help you recover any seed phrase(s) to which you lose access.
Ownership. Title to Digital Assets shall at all times remain with you and shall not transfer to Service Provider. As the owner of Digital Assets in your Wallet, you shall bear all risk of loss of such Digital Assets. Service Provider shall have no liability for Digital Asset fluctuations or loss. None of the Digital Assets in your Wallet are the property of, or shall or may be loaned to, Service Provider. Service Provider may not grant a security interest in the Digital Assets held in your Wallet.
Control. You control the Digital Assets held in your Wallet. At any time, subject to outages, downtime, and other applicable policies, you may withdraw your Digital Assets by sending it to a different blockchain address.
Encryption. The Service includes the ability to communicate with other users of the Services via direct messaging (the "Messaging Feature"). Your messages on our Services are encrypted. Our Privacy Policy describes our data (including message) practices, including the types of information we receive and collect from you, how we use and share this information, and your rights in relation to the processing of information about you.
Creating a User Account. You must create a User Account to access the Messaging Feature. In order to create a User Account, you must meet the Eligibility criteria described above. Service Provider reserves the right to ban, suspend, or delete a User Account, or to refuse to create a User Account, for any reason , or no reason.
Security of your User Account. If you create a User Account, you are entirely responsible for the security and confidentiality of that account, including your password to access that User Account. Furthermore, you are entirely responsible for any and all activities that occur under your User Account. You agree to immediately notify Service Provider of any unauthorized use of your User Account or any other breach of your User Account's security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Services.
User Account Communication. By creating a User Account, you agree to receive service related electronic communications from Service Provider. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
Suspension, Termination, and Cancellation. Service Provider may, at its option and in its sole discretion suspend, restrict, or terminate your access to any or all of the Services if: (i) we are so required by a facially valid subpoena, court order or binding order of any government authority; (ii) we reasonably suspect you of using the Services in connection with any Prohibited Uses (as defined below); (iii) your use of the Services is subject to any pending litigation, investigation, or government proceeding and/or we, in our sole discretion, perceive a heightened risk of legal or regulatory non-compliance associated with your activity; (iv) any of our service partners are unable to support your use thereof; (v) you take any action that Service Provider deems in its sole discretion as circumventing Service Provider's controls, or abusing promotions which Service Provider may offer from time to time; or (vi) you breach these Terms.
If Service Provider suspends or closes your access to the Services for any reason, we will provide you with notice of our actions, unless a court order or other legal process prevents or prohibits Service Provider from providing you with such notice. You acknowledge that Service Provider's decision to take certain actions, including limiting you access to the Services, may be based on confidential criteria that are essential to Service Provider's risk management and/or security protocols. You agree that Service Provider is under no obligation to disclose the details of its risk management and/or security procedures to you.
Due to the non-custodial nature of the Wallets offered through the Services, the Service Provider's ability to limit or suspend access may be limited.
Prohibited Uses. You may not use the Services to engage in the following categories of activity ("Prohibited Uses"). The Prohibited Uses listed below are representative, but not exhaustive, and Service Provider reserves the right to update or amend such list in its sole discretion at any time, with or without notice to you. By using the Services, you agree that you will not undertake any of the following, as determined by Service Provider in its sole discretion:
Information Ownership. Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the Service Provider logo and all designs, text, graphics, trademarks, pictures, information, data, software, sound files, and/or other files related thereto and/or associated therewith and the selection and arrangement thereof (collectively, "Content") are and shall remain the sole and proprietary property of Service Provider or our affiliates or licensors, if and as applicable.
Third Party Intellectual Property. Notwithstanding anything to the contrary in these Terms, the Services and Content may include software components provided by Service Provider or its affiliates or a third party that are subject to separate license terms, in which case those license terms will govern the usage of such software components, as applicable.
Third Party Services. The Services may contain links to third-party websites, ("Third-Party Websites") and/or applications, including Dapps ("Third-Party Applications"). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies, if and as applicable) of another website or destination. Service Provider provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications or their products or services. You use all links in Third-Party Websites and Third-Party Applications at your own risk.
Limited License to You. These Terms grant users a limited and non-exclusive right to use the Services, including all Content thereon. Except as indicated otherwise herein or in any additional terms or conditions, you may not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, transmit, or otherwise exploit any of the Content on our Services, except as follows:
You must not:
If you wish to make any use of Content other than that set out in this Section, please address your request to: support@elementwallet.com
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Service Provider, and our respective past, present, and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors, and assigns (individually and collectively, the "Service Provider Parties"), from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities of every kind, and nature whatsoever, whether known or unknown, that are caused by, arise out of, or are related to (a) your use or misuse of the Services, (b) your violation of these Terms, and/or (c) your violation of any right(s) of any third party. You agree to promptly notify Service Provider of any Claim(s) and shall cooperate fully with the Service Provider Parties in defending such Claims. You further agree that the Service Provider Parties shall have control of the defense or settlement of any third party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN ANY WRITTEN AGREEMENT(S) BETWEEN YOU AND SERVICE PROVIDER.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY SERVICE PROVIDER, THE SERVICES, CONTENT CONTAINED THEREIN, AND ANY DIGITAL ASSET(S) LISTED THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. SERVICE PROVIDER (AND ITS AFFILIATE(S), LICENSOR(S) AND/OR OTHER BUSINESS ASSOCIATE(S)) MAKES NO WARRANTY THAT THE SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL OR SAFE. SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES, CONTENT CONTAINED THEREIN. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
YOU AGREE AND ACKNOWLEDGE THAT SERVICE PROVIDER HAS NO CONTROL OVER AND MAKES NO GUARANTEES OR PROMISES WITH RESPECT TO THE OWNERSHIP RECORD OR SMART CONTRACTS. SERVICE PROVIDER MAKES NO OFFER OR INVITATION TO ACQUIRE, PURCHASE, TRANSFER, SELL, OR OTHERWISE DEAL IN TOKENS. YOU WAIVE ANY AND ALL RIGHTS AND CLAIMS YOU MAY HAVE, WHETHER KNOWN OR UNKNOWN AGAINST SERVICE PROVIDER (AND ANY RELATED PARTIES) RELATED TO THE WALLET AND SERVICES PROVIDED HEREUNDER.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL SERVICE PROVIDER OR ITS AFFILIATES, OR ITS OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS, OR DIRECTORS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, LOSS OF DIGITAL ASSETS, LOSS OF PRIVATE KEY, LOSS OF SEED PHRASE, LOSS OF ACCESS TO ANY DIGITAL WALLET, OR ANY OTHER DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY CONTENT ON THE SERVICES OR ANY OTHER WEBSITES AND MOBILE APPLICATIONS OR ANY ITEMS OBTAINED THROUGH THE SERVICES OR SUCH OTHER WEBSITES AND MOBILE APPLICATIONS, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
IN NO EVENT WILL SERVICE PROVIDER'S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES, THE ACCESS TO AND USE OF THE SERVICE, CONTENT, DIGITAL ASSETS OR ANY PRODUCTS OR SERVICES PURCHASED ON THE SERVICES EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT RECEIVED BY SERVICE PROVIDER FROM THE SALE OF DIGITAL ASSETS THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM SHALL BE DEEMED PERMANENTLY WAIVED AND BARRED.
THIS SECTION DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW, THEREBY MINIMIZING OUR LIABILITY TO YOU TO THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW.
This Section includes an arbitration agreement and an agreement that all claims will be brought only in arbitration an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
Informal Dispute Resolution. You agree that in the event of any dispute between you and Service Provider, you will first contact Service Provider and make a good faith sustained effort for a minimum of thirty (30) days to resolve the dispute before resorting to more formal means of resolution, including without limitation, any arbitration or court action.
Arbitration. After the informal dispute resolution process is completed, any remaining controversy or claim arising out of or relating to these Terms or Service Provider's services, and/or products, including but not limited to the Services or any communications between you and Service Provider or any other user of the Services, including any breach, termination or validity thereof, as well as all questions of arbitrability, shall be finally resolved by one arbitrator in arbitration, which shall be administered by the International Centre for Dispute Resolution (" ICDR") in accordance with its International Arbitration Rules (" ICDR Rules"). A copy of the ICDR Rules can be accessed at https://www.icdr.org/rules_forms_fees, or by calling the ICDR at +1888.855.9575 or +1 212.484.4181. The Parties shall endeavor to agree upon the arbitrator, and if they fail to do so within twenty-one (21) days of the commencement of the Arbitration, the appointment shall be made by the ICDR. This mandatory arbitration agreement does not require Service Provider to arbitrate claims for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in these Terms, which Service Provider may bring in arbitration or court at its sole election.
The place, or legal seat of arbitration, shall be New York, New York, and the language of the arbitration shall be English.
You may only bring claims in your individual capacity on your own behalf, and not in any representative capacity or on behalf of any class or purported class, and no arbitration you commence hereunder may be joined with or include any claims by any other persons unless both parties consent. Each party shall be exclusively responsible for paying its own arbitration filing fees, which may later be allocated by the arbitrator as set forth below.
The arbitrator shall, subject to the limitation of liability set forth above, have the power to grant any interim or provisional measures that the arbitrator deems appropriate, including, but not limited to, injunctive relief and specific performance, and any interim or provisional measures ordered by the arbitrator may be specifically enforced by any court of competent jurisdiction as a final award. Nothing herein, however, shall authorize the arbitrator to act as amiable compositeurs, to proceed ex aequo et bono, or to exercise rights of jura novit curia. Each party hereto retains the right to seek interim measures from a judicial authority, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
The arbitrator shall award the prevailing party, if any as determined by the arbitrator, its reasonable costs, including reasonable attorney's fees. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction. No information concerning an arbitration, beyond the names of the parties, their counsel or the relief requested, may be unilaterally disclosed to a third party by any party unless required by law. Any documentary or other evidence given by any party or witness in any arbitration shall be treated as confidential by any party whose access to such evidence arises exclusively because of its participation in the arbitration and shall not be disclosed to any third party (other than a witness or expert), except as may be required by law. Any party who commences any judicial proceeding in connection with an arbitration initiated hereunder shall endeavor to have the judicial record of any such proceeding sealed to the extent permitted by law.
This Arbitration Agreement and its interpretation shall be governed by the internal laws of the State of New York and the Federal Arbitration Act, without regard to New York's conflict of laws rules. You agree that you and Service Provider** are each waiving the right to a trial by jury or to participate in a class action.** This arbitration provision will survive any termination of these Terms.
YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO YOUR RELATIONSHIP WITH SERVICE PROVIDER MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM WILL BE PERMANENTLY BARRED.
Governing Law and Venue. These Terms, your access to and use of the Services and Content, and your participation in the Services, shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to conflict of law rules or principles of the State of Delaware, or any other jurisdiction that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts sitting in the State of Delaware. However, as a consumer, you will benefit from any mandatory provisions of the law of the country in which you are resident and nothing in these Terms affects your rights as a consumer to rely on such mandatory provisions of local law.
Severability. If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause, or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause, or provision, or any other term, clause, or provision of these Terms.
Wavier. If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
Assignability. These Terms are personal to you, and are not assignable, transferable, or sublicensable by you except with Service Provider's prior written consent.
Notices. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
If you have any questions or complaints about our Services or these Terms, please email us at support@elementwallet.com or write to us at 401 Congress Avenue, Suite 1800, Austin, TX 78701.