PURPOSE AND SCOPE
These General Terms and Conditions (“Terms”) sets out the terms and conditions which govern your use of the services provided by DELCHAIN LIMITED (hereinafter referred to as “DELCHAIN”) which term shall include its officers, directors, employees, agents, representatives, successors and assigns) and the undersigned person(s). In this Agreement, “you” and “your” means the undersigned person and shall mean any individual, corporation, partnership, association, limited liability company, private company, public company, trust, estate or other entity who by his/her/their signatures hereby agrees to use the services provided under this Agreement in accordance with these Terms.
These Terms shall be without prejudice to any other agreements between you and DELCHAIN or to any applicable policies, procedures or practices which may apply to the Services provided hereunder, as well as, for other purposes connected with the Services provided under this Agreement.
You must agree to these Terms in order to use any of the Services provided by DELCHAIN under this Agreement. By accepting these Terms, either by your handwritten signature below or electronically (for example, electronic signature) or by using the Services, you are accepting and agreeing to these Terms inclusive of any policies referenced in these Terms. If you do not agree to these Terms, you should not use the Services.
DEFINITIONS AND INTERPRETATION
The following words shall have the following meaning when used in these Terms:
- Digital Assets means electronic records and shall include (but not be limited to) any form of (i) digital commodities and (ii) right(s), claim(s) or chose(s) in action relating to any such digital commodity.
- Instructions means any request, order or instruction in writing and communicated by way of electronic mail or other secured electronic channels) by you, on your behalf or at your direction relating to the custody, use or management of Digital Assets.
- Loss shall include but is not be limited to all charges, claims, costs, debts, demands, duties, expenses, fees, liabilities, taxes, obligations, judgments, penalties, punitive, exemplary or other losses or damages of any kind howsoever arising whether as a consequence of any breach of contract, tort (including negligence), statutory duty, equitable liability or otherwise and whether direct, indirect, fixed, contingent, consequential or otherwise.
- Private Key means the decryption key used to make a digital signature, or any part thereof, associated with a wallet and required and used to execute Instructions.
- Service(s) means the service provided by DELCHAIN under and pursuant to the terms of this Agreement.
- Wallet means any address, location or storage device which is capable of storing a private key.
Custody Services: DELCHAIN may provide safe custody solutions for Digital Assets (as may be modified from time to time) held to your order or under your direction in accordance with terms of this Agreement. DELCHAIN may appoint third parties to perform any part of the Services provided herein subject to the relevant laws or regulatory rules applicable to such third parties, including the laws and rules of the jurisdiction in which the third party is located. Notwithstanding the above or any other terms of this Agreement, DELCHAIN agrees that it shall have the same liability to you for the Digital Assets custodied with a third party as if such the Services were provided to you by the third party as a custodian in the same line of business as DELCHAIN.
Additional Services: DELCHAIN may also provide additional services on terms agreed in writing between you and DELCHAIN from time to time, which may include but not be limited to the management of your Digital Assets. Notwithstanding anything to the contrary, these Terms shall apply to and are deemed incorporated into any separate agreement in writing between you and DELCHAIN. By agreeing to any additional terms which govern additional services, you represent that you have the requisite authority to enter into such separate agreement.
DELCHAIN agrees that it shall provide the Services with the same degree of care, skill and diligence that would reasonably be expected from skilled and experienced persons engaging in such activities under the same or similar circumstances in performing its obligations under this Agreement.
Unless otherwise agreed between the parties, DELCHAIN will have full control of your Private Key(s) for a Wallet provided by this Service.
If you elect to take possession and control of one or more of the Private Key(s) for a Wallet provided by the Services, then you are solely responsible for maintaining the security of the Private Key(s) provided to you or that you generate to use the Services, and for maintaining secure back-ups. You agree to prevent unauthorized access to or use of the Services using your Private Keys(s), and agree to notify DELCHAIN promptly of any such unauthorized access or use.
DELCHAIN has no control over, or liability for the delivery, quality, safety, legality or any other aspect of an Instruction, which may involve a third party (including other users of DELCHAIN’s Services) unless otherwise agreed in writing between you and DELCHAIN. DELCHAIN is not responsible for ensuring that a third party with whom you transact will comply with your Instructions or is authorized to do so where such Instructions are processed on terms and conditions not agreed to by DELCHAIN. If you appoint a third party to control one or more of your Private Key(s), whether or not such appointment is made through the Services (e.g., through a key recovery service), DELCHAIN is not responsible for the actions or omissions of such third party. Control of Private Keys will allow such third party to access and manage all of your Digital Assets and you may never regain control of those Digital Assets. You will be responsible, and DELCHAIN will have no liability, for all activity involving your Private Key or personal information, whether or not authorized by you.
DELCHAIN will only process Instructions in accordance with the terms indicated by you in writing. You should verify all Instructions prior to submission to DELCHAIN. DELCHAIN does not guarantee the identity of any user, receiver, or other party. You should only provide Instructions to DELCHAIN if you fully intend for your Instructions to be executed. You acknowledge Instructions provided by you may be irreversible and cannot be withdrawn once received by DELCHAIN.
DELCHAIN may provide additional services whereby DELCHAIN verifies that your Instructions in relation to your Digital Assets does not constitute a double spend before the Instructions are confirmed by the relevant network.
DELCHAIN’s Services are available only in connection with certain Digital Assets, which DELCHAIN may in its sole discretion change from time to time provided that DELCHAIN shall provide prior written notice where such changes impact any of your Digital Assets custodied with DELCHAIN. Under no circumstances should you attempt to use your Private Key to carry out Instructions involving Digital Assets in any form that DELCHAIN does not support (although DELCHAIN will use reasonable efforts to help you manage those Digital Assets). DELCHAIN assumes no responsibility or liability in connection with any attempt by you to use the Services for Digital Assets that are not supported.
Your Digital Assets are your responsibility. You acknowledge that if you control one or more of the Private Key(s), your Private Key may be required to execute Instructions.
You acknowledge that DELCHAIN may not provide insurance coverage or similar protection for your Digital Assets and you hereby agree to assume full responsibility for safeguarding your Digital Assets and for any Loss arising from or connected with your access or use of the Services and this Agreement.
You acknowledge that DELCHAIN’s Services carry the risk of loss and accept the risks associated with the Services. It is your duty to learn about the risks involved with Digital Assets and you should carefully consider whether the Services are suitable to you depending on your experience. DELCHAIN makes no representations regarding the security of networks and protocols or its Services.
DELCHAIN does not own or control the underlying software protocols which govern and facilitate use of the Services. Generally, the underlying protocols are open source and anyone can use, copy, modify, and distribute them. DELCHAIN assumes no responsibility for the operation of the underlying protocols and is not able to guarantee their functionality, security, or availability. You acknowledge and accept the risk that underlying software protocols relating to any Digital Assets may change from time to time.
In particular, the underlying protocols are likely to be subject to sudden changes in operating rules (“forks”), and such forks may materially affect the function and/or the name of your Digital Assets. Where possible, DELCHAIN may provide you with notices or alerts on forks in accordance with Clause 14 (Notices and Communications) below and you must read such notices or alerts received from DELCHAIN in order to consider how to deal with upcoming forks. However, it is your responsibility to be aware of, and consider how to deal with, upcoming forks. In the event of a fork, there is a risk that DELCHAIN may need to suspend operations in relation to that fork without pro viding advance notice to you. DELCHAIN may, in its reasonable discretion, decline to support either or both branches of a fork.
If there is any suspicion that your Private Key has been compromised or if you become aware of any fraud or attempted fraud or any other security incident (including a cyber-security attack) affecting you and /or DELCHAIN (together a “Security Breach”), you must notify DEL CHAIN as soon as possible and continue to provide accurate and up to date information throughout the duration of the Security Breach. You must take any steps that DELCHAIN reasonably requires to reduce, manage or report any Security Breach. Failure to provide prompt notification of any Security Breach may be taken into account in DELCHAIN’s determination of the appropriate resolution of the matter.
Delchain agrees to use all reasonable efforts to promptly notify you as soon as it becomes aware of any actual or unintended access of any of its systems that may access, process, or store data provided under or related to this Agreement.
Unless otherwise made available to you by a mechanism provided by DELCHAIN and authorized by you, you agree that you will not nor will you permit or assist any third party to directly or indirectly:
- Distribute, transfer or make available the Services or any part of it to any third party or for any purpose independent of DELCHAIN;
- Modify, alter, tamper with, repair or otherwise create derivative works on DELCHAIN’s systems;
- Use any improper or unauthorized means to gain access to the Services or use any automated process or service to access or use the Services, or distribute Instructions, software or tools for that purpose;
- Interfere with or disrupt servers or networks used by DELCHAIN to provide the Services;
- Use the Services on behalf of another person at any time;
- Use the Services in any manner or for any purpose other than as expressly permitted by these Terms and DELCHAIN’s policies; or
- Engage in any unlawful or fraudulent activity or engage in falsification or manipulation of data.
DELCHAIN grants you a personal, non-transferable, non-exclusive license to use the Service unless otherwise agreed in writing between you and DELCHAIN. This license is conditioned upon and restricted by the terms and conditions in these Terms. Further, this license is for personal and non-commercial use. You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract any part of the Service, or any part thereof, except (and solely) to the extent permitted by applicable law. You may not assign (or grant a sub-license of) your rights to use the Service, grant an interest in or over your rights to use the Service, or otherwise transfer any part of your rights under these Terms. If DELCHAIN provided you access to any part of the Services in return for a fee, this license is conditioned on your payment of the fees due. These Terms do not grant to you any license or permission to copy, distribute, modify or otherwise use any application-programming interface, notwithstanding any provision to the con trary. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you under these Terms are reserved by DELCHAIN.
FEES AND EXPENSES
You hereby agree to pay DELCHAIN’s fees for the Services as agreed between you and DELCHAIN in writing. DELCHAIN shall be entitled to additional compensation from you for any additional or extraordinary services requested or required by you.
You understand and agree that all out-of-pocket expenses incurred by DELCHAIN in connection with your use of the Service shall be charged to you.
You shall be responsible for the payment of any third party fees incurred by DELCHAIN executing any Instruction by you, including but not limited to, commissions, transfer fees, taxes, and all other liabilities, costs and other expenses payable or incurred by DELCHAIN on your behalf in relation to any Instruction and/or under these Terms. In the event DELCHAIN becomes legally obligated to pay any charges or other sums associated with Digital Assets for which you are responsible, DELCHAIN may settle said charges or sums on your behalf and charge you for the amounts paid.
All sums due to DELCHAIN or any other person in respect of commissions, charges, fees, expenses or otherwise pursuant to your Instructions and/or these Terms, may be chargeable to you and DELCHAIN is hereby given authority to approve payment of all invoices and other requests for payment in respect thereof.
The provisions of this clause 8 shall survive the termination of the Agreement and these Terms.
DISCLAIMER OF WARRANTIES
DELCHAIN’s services are provided on an “as is” “with all faults” and “as available basis” and the entire risk as to satisfactory quality, performance, accuracy and effort regarding the Services or any portion of it is with you. DELCHAIN makes no (and expressly disclaims) all representations, warranties, assurances, guarantees, conditions, covenants or claims whether express or implied, statutory or other wise, relating to the Services, including, without limitation, for:
- merchantability, quality, accuracy, fitness for a particular purpose, title, non-infringement, timeliness, availability, latency, capacity, currency, absence of viruses or damaging or disabling code, any warranties or representations that the Services or that access to any part of it will be: (a) available on an uninterrupted, secure or error-free basis and/or free of harmful components; or (b) that defects in such Services will be correctable or corrected, or other attributes, whether express or implied (in law or in fact), oral or written, or from a course of dealing or usage of trade. DELCHAIN may, but has no responsibility to inform you of any difficulties it or other third parties experience concerning use of the Services for its accounts or other accounts or to take any action in connection with those difficulties. the accuracy, availability, timeliness, security or reliability of the Services or the completeness of any information provided by or through the Services;
- that the content will be secure or not otherwise lost or damaged;
- loss of data or other harm that results from your access or use of the Services;
- the deletion or the failure to store or to transmit any communication maintained by the Service; or
- whether the services will meet your requirements.
Neither DELCHAIN nor its subsidiaries, officers, agents, directors, members, delegates, employees, partners, suppliers and licensors shall be responsible for any information or advice provided to you through the use of the Services nor will such advice or information constitute or be construed as constituting any warranty or representation.
DELCHAIN does not give investment advice, tax advice, legal advice or other professional advice by providing or allowing you: (i) use of the Services provided under this Agreement and (ii) the ability to use or manage Digital Assets and DELCHAIN does not recommend or endorse that you provide Instructions relating to the management of Digital Assets while using the Services.
LIMITATION OF LIABILITY
To the maximum extent permitted by law, DELCHAIN’s liability under any guarantee, condition or warranty (including, without limitation, any guarantee, condition or warranty of merchantability, acceptable quality, fitness for purpose or fitness for disclosed result), or any other right or remedy, under any legislation or implied into this Agreement by any legislation is hereby excluded. Where DELCHAIN is liable under any legislation, or any legislation avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under, such legislation, DELCHAIN’s liability for any breach of such legislation shall be limited, at DELCHAIN’s absolute discretion to: (i) supplying the Services again or the cost of having the Services supplied again: (ii) modifying the Services so as to avoid any breach but be materially equivalent; or (iii) terminating the Services without any liability to you.
Notwithstanding the above, any option exercised by DELCHAIN shall not apply, to the extent such liability arises from: (a) third party products/services or combinations with these items or (b) modification of the Services by someone other than DELCHAIN. You acknowledge and agree that reliance by DELCHAIN on this limitation of liability is fair and reasonable in all the circumstances. Notwithstanding anything to the contrary and to the fullest extent permitted by law, under no circumstances will DELCHAIN and its subsidiaries, officers, agents, directors, members, representatives, contractors, delegates, employees, partners, suppliers and licensors will be liable to you under any theory of liability, including but not limited to tort, fraud, misrepresentation, guarantee, contract, negligence, strict liability or otherwise for:
- any direct, incidental, special, punitive, or consequential damages (including, without limitation, damages for lost profits or failure to realize expected profits or savings or any other commercial or economic loss of any kind, loss of any business revenue, good will, loss of an agreement, loss of Digital Assets or other personal assets, however caused, notwithstanding any advice or notice as to the possibility of such damages;
- any loss or damage to hardware, software or data and/or corruption of data including but not limited to any losses or damages arising out of or relating to any inaccuracy of data, defect or omission of information, any error or interruption of use or loss of data and/or delay in the transmission of such data or cost of procurement of substitute services or technology;
- any Loss which is not connected with a breach of this Agreement or any inconvenience you suffer in connection with the provision of the Services or the refusal to provide the Services unless there has been gross negligence or misconduct by DELCHAIN;
- any unauthorized or fraudulent use of the Services, your Instructions or material alteration to your Instructions, even if you or DELCHAIN did not verify the authorization or Instruction;
- any subject matter of this Agreement or these Terms or any matter beyond DELCHAIN’s reasonable control;
- any liability for unauthorized Instructions or non-execution or incorrect, incomplete or belated Instructions due to any errors, howsoever arising or caused;
- any allegation or finding that the Services are illegal, fraudulent, incomplete, misleading or deceptive or likely to mislead or deceive;
- any failure to perform its responsibilities under the Agreement or these Terms if such performance would result in a breach of any applicable laws, regulations, guidelines, DELCHAIN’s policies, code of conduct or otherwise; or
- any amounts that, together with amounts associated with all other claims, exceed the fees paid by you to DELCHAIN for the Services under this Agreement in the twelve (12) months prior to the act that gave rise to the liability, in each case, whether or not DELCHAIN has been advised of the possibility of such damages, unless such loss or liability results from the gross negligence, fraud or misconduct of DELCHAIN.
To the maximum extent permitted by law, DELCHAIN excludes all liability (whether arising in contract, tort or otherwise) that it may have for any Loss arising from: (a) the use of, or reliance on the Services or on any third party which integrates, in any way, with the Services; or (b) the use of or availability, quality, correctness, accuracy, completeness or suitability of the Services; or (c) any sup- port services, documentation or other products or services provided to you by DELCHAIN in respect of your use of the Services.
You agree to release and discharge DELCHAIN, its subsidiaries, affiliates or third party from any and all responsibility and liability for any Loss arising out of or otherwise relating to your or your authorized representative’s access to any of the Services or any part of it or any use of any of the Services or any malfunction, delay, interruption, omission or failure of any of the Services.
If you give specific Instructions to DELCHAIN in respect of your Digital Assets, you shall assume full responsibility for the implications that such Instructions may have on the Digital Assets and/or the Services provided by DELCHAIN acting upon such Instructions in connection with the Digital Assets. You shall be responsible and DELCHAIN shall not be liable for any Loss, which may result from the fact that you or any duly authorized person on your behalf or other third party has become incompetent, unless DELCHAIN has been so informed in writing in accordance with Clause 14 (Notices and Communications).
The provisions of this clause 10 shall survive the death, incompetence, bankruptcy or insolvency of your or your duly authorized representative(s) and the termination of the Agreement and these Terms.
By using the Services:
- you undertake and agree to hold harmless and keep DELCHAIN and its subsidiaries, officers, agents, directors, members, representatives, contractors, delegates, employees, partners, suppliers and licensors (collectively “Indemnified Parties”) fully and effectively indemnified from and against all Loss arising out of or connected with:
- your use of the Services in an unlawful manner or otherwise in breach of these Terms or this Agreement;
- breach by you or your authorized representative of any term or provision (including, without limitation, any warranty given) of this Agreement or these Terms; or any third party claim arising from or relating to your access or use of the Services.
You hereby waive, release and discharge the Indemnified Parties from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or related to any Loss, that may be sustained by you, or to any Digital Assets belonging to you, arising from or in connection with the Services, this Agreement or these Terms.
DELCHAIN shall not provide any restitution for any Loss including but not limited to loss of profits, loss of business, depletion of goodwill or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement.
DELCHAIN will provide you with notice, as far as reasonably possible, of any such claim, investigation or demand subject to this indemnification obligation.
You represent and warrant that: (i) you are at least eighteen (18) years of age, (ii) you have full power and authority to engage the Services of DELCHAIN in accordance with this Agreement and these Terms, (iii) all necessary corporate action (if required) has been taken to authorize the execution, delivery and performance of the Agreement and these Terms, (iv) when executed and delivered, the Agreement and these Terms will constitute your legal, valid and binding obligations enforceable in accordance with their respective terms, (v) all information and any other documents provided to DELCHAIN are true and correct and you agree to immediately notify DELCHAIN of any change in any information; (vi) you declare that all Digital Assets and rights to wallet(s) legally and beneficially belong to you and no other person has a legal or beneficial interest therein, unless otherwise disclosed to DELCHAIN in writing, (vii) the Digital Assets are free from all liens, charges or other encumbrances and that no liens, charges or other encumbrances shall arise from your acts or omissions, (viii) such Digital Assets subject to these Terms were not derived from criminal conduct or illicit, activities, and (ix) you have obtained independent professional advice which you consider necessary or desirable in connection with the entry into this Agreement and these Terms.
You agree to promptly provide DELCHAIN, with any further information as may be required by DELCHAIN to enable DELCHAIN to fulfill its contractual or legal obligations, in each case, applicable from time to time to DELCHAIN, you and/or the Digital Assets or to comply with DELCHAIN’s internal policies. Furthermore, you hereby authorize DELCHAIN to obtain independent verification of any information provided by you or obtain such further information or make such further enquiries as DELCHAIN may, at its discretion, require.
You acknowledge that you are responsible for being aware of and observing laws, regulations and rules, where applicable, to your use of the Services.
You acknowledge and agree that any breach of the representations and warranties given by you under this clause 13 or any breach of the provisions of the Agreement and these Terms may adversely affect the provision of the Services provided by DELCHAIN under these Terms and this Agreement.
ASSIGNMENT AND THIRD PARTIES
This Agreement does not constitute a partnership or agency between you and DELCHAIN nor is it intended to benefit any other person except for your permitted successors. You should not assign or delegate your rights, responsibilities or obligations under this Agreement at any time and any attempt to do so will not be recognized by DELCHAIN and will be deemed void. DELCHAIN may assign or delegate this Agreement or these Terms, its obligations, rights and responsibilities, in whole or in part, at any time with or without notice to you.
NOTICES AND COMMUNICATIONS
Except as otherwise specified in these Terms, all notices under this Agreement shall be in writing and shall be effectively given upon the first business day after sending by: (i) electronic mail (“Email”); (ii) personal delivery; (iii) other secured electronic channels as agreed between you and DELCHAIN or (iv) by courier service. Notices shall be deemed to have been given, delivered and received upon receipt or attempted delivery (if receipt is refused), as the case may be, and the date of delivery identified by confirmation by courier service, even if such delivery was refused.
You agree that DELCHAIN will provide notices and other communications by electronic communications to you by emailing such notices or information to your registered E-mail address. All instructions or communications from you to DELCHAIN shall be given in writing using your registered E-mail address or other secured electronic channels acceptable to DELCHAIN and shall be deemed to have been received upon acknowledgment of receipt by DELCHAIN.
You further agree that you will be responsible for providing DELCHAIN with true and accurate contact information, check for such notices and to ensure that such information is kept up to date. You understand and agree that where DELCHAIN sends electronic communications but you do not receive it because your Email address provided is incorrect, out of date, blocked by the service provider or you are other wise unable to receive electronic communications, DELCHAIN will be deemed to have provided the communication to you. If DELCHAIN is unable to contact you using the details last provided by you, you agree to bear any and all costs incurred by DELCHAIN when trying to restore such contact.
If you do not consent to receiving notices and communications electronically, or do not consent to the use of electronic signatures (where required) in connection with this Agreement or for any other purpose in connection with your use and/or the provision of the Services, you should not use or continue to use the Services.
You shall assume all the risks and bear all the consequences associated with electronic communications and DELCHAIN shall assume no liability with respect to whether Instructions are authentic, confidential, understandable, misrouted, delayed, lost or not received in full, or whether there may be identification or transmission errors.
Although under no obligation to do so, DELCHAIN reserves the right to require additional information enabling it to verify the authenticity of an Instruction or to require written confirmation of any instruction. DELCHAIN may refuse to act on any instruction if DELCHAIN has good reason to believe that you or your duly authorized representative did not give the Instruction, the person giving the Instruction has not been properly identified, the Instruction is not clear or DELCHAIN believes that in carrying out such Instruction DELCHAIN may
breach any law or DELCHAIN’s internal policies. DELCHAIN shall not be liable for refusing to act on any Instruction in such circumstances.
WAIVER FOR INSTRUCTIONS GIVEN BY TELEPHONE, ELECTRONIC MAIL AND/OR FACSIMILE
You hereby authorize DELCHAIN to act on any instructions on any and all accounts in your name which are received by DELCHAIN by facsimile transmission, telephone or by electronic mail and appear to DELCHAIN to be signed (in the case of facsimile instructions) or given (in the case of telephone or electronic mail instructions) by you or an attorney authorized to act on your behalf.
You hereby acknowledge that DELCHAIN will not be required to constantly monitor DELCHAIN’s telephones, instant messaging communications transmitted via mobile telephones on communication platforms including without limitation, WhatsApp, Zoom and Telegram, computer or facsimile machines, but need only use reasonable efforts to determine if DELCHAIN has received any instructions from you. Instructions given by you to DELCHAIN under this authorization will not be considered to have been received by DELCHAIN until they are brought to the attention of DELCHAIN’s employee to whom they are addressed or an officer of DELCHAIN.
Although DELCHAIN will not have any duty to confirm your signature on any instructions given by you to DELCHAIN by facsimile machine, so long as the signature purports to be your signature, DELCHAIN may decline to act if DELCHAIN in good faith doubts that the instructions have been properly authorized by you, have been accurately transmitted or properly understood by DELCHAIN.
If DELCHAIN acts on instructions which DELCHAIN received that are, or purport to be, given under the authority to this authorization, those instructions will be conclusively deemed to be valid, even if they did not, in fact, come from you, or were not accurately transmitted or properly understood by DELCHAIN. This does not, however apply if DELCHAIN is grossly negligent or if DELCHAIN’s actions amount to willful misconduct.
Unless DELCHAIN is grossly negligent or DELCHAIN’s action or inaction amounts to willful misconduct, DELCHAIN will not be responsible for anything DELCHAIN can or cannot do, due to any of the following:
Delays, breakdowns, slowdowns or failures in performance or otherwise resulting, whether directly or indirectly, from acts or circumstances beyond DELCHAIN’s control including without limitation, computer or access equipment, telephone (including mobile telephones) or facsimile machine breakdown, slowdown, malfunction or delay.
The action of, or any failure to act by, any third party.
Any inaccuracy or inadequacy in, or lack of authenticity of, any instructions received by DELCHAIN.
Any liability DELCHAIN may have in connection with this authorization or any instructions delivered or purporting to be delivered to DEL CHAIN under this authorization will be limited in the aggregate to actual and direct money damages. This will apply no matter what form of action or claim you may bring against DELCHAIN. DELCHAIN will not in any event be liable for any indirect, consequential or exemplary damages whatsoever including loss of profits. In addition DELCHAIN will not be liable for any claim against you by, or other liabilities you may have to, any third party, whether that claim or those liabilities are for breach of warranty, negligence or otherwise, even if DELCHAIN has been advised or given notice of such a possibility.
You will indemnify DELCHAIN and save DELCHAIN harmless from any loss, cost, damage or expense which DELCHAIN may suffer or incur from acting or declining to act upon any instructions you may give DELCHAIN under this authorization, including, without limitation, legal and other professional fees and disbursements which DELCHAIN may reasonably incur. This indemnity shall not extend to any loss, cost, damage or expense which results from DELCHAIN’s gross negligence or willful misconduct.
You hereby assume all of the risks inherent in forms of communications agreed to in this authorization, in particular misrouting, identification errors, misunderstandings, garbling, delays, losses and wrongful acts committed by third parties and you fully relieve Delchain of any liability toward you, your assigns and attorneys, unless there has been gross negligence or willful misconduct. You agree to be jointly and individually liable under this indemnity in respect of any joint account to which you are a party.
You hereby irrevocably authorize Delchain to debit your account(s) immediately with all sums paid by Delchain in respect of such instructions, and to debit your account(s) with all sums of money whatsoever, interest on money, costs, charges and expenses which Delchain may incur as a result of complying with such instructions.
The Client acknowledges that telephone conversations with DELCHAIN may be recorded and hereby consent to such recording and expressly agrees that in any dispute between the Client and DELCHAIN regarding telephone, fax or email instructions and documentation given to DELCHAIN, the contents of the telephone recording, fax or email document shall be final and binding upon the Client.
DELCHAIN will take all measures to protect your personal information and will not use your information for any purpose other than as required to perform the Services, as required by law or expressly provided under this Agreement. DELCHAIN is not obliged to disclose to you information where the disclosure of such information to you would be a breach of duty or confidence to any other person.
You hereby authorize and consent to the disclosure by DELCHAIN of any information relating to the Digital Assets and/or you to: (a) com ply with any applicable legal requirements; (b) agents, affiliates, third party consultants or service providers of DELCHAIN, including, without limitation DELCHAIN’s advisors and attorneys; (c) enable DELCHAIN to outsource any of the Services to third parties or to communicate with third parties, as may be necessary to enable DELCHAIN to provide the Services; or (d) where otherwise required in connection with the provision by DELCHAIN of the Services.
DELCHAIN may store your personal data electronically and process them by computer or in any other way, most particularly so that it complies with your Instructions and/or manage your Digital Assets or may fulfill any obligation under this Agreement or otherwise. Notwithstanding anything to the contrary, DELCHAIN shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and DELCHAIN will be free (during and after the term hereof) to use such information and data to improve and enhance the Services and for other development or corrective purposes in connection with the Services.
Notwithstanding anything to the contrary, DELCHAIN shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and DELCHAIN will be free (during and after the term hereof) to use such information and data to improve and enhance the Services and for other development or corrective purposes in connection with the Services.
The terms and conditions of this Agreement are confidential between the parties and shall not be disclosed to any third party. except: (i) where mutually agreed in writing by the parties; (ii) where disclosure is required by law, regulation or court order; (iii) where necessary to share such information with the parties’ professional advisers or (iv) as may be necessary to effectuate its terms.
The provisions of this Clause 15 shall survive the termination of the Agreement and these Terms.
STANDARD OF LIABILITY
Without prejudice to any other provision contained herein, DELCHAIN will not be liable for any Loss whatsoever however arising suffered by you or any other person arising directly or indirectly out of the Services provided hereunder unless there has been gross negligence, willful misconduct or fraud on its part.
Without prejudice to any other provision contained herein, you shall indemnify, defend and hold harmless DELCHAIN from and against any Loss (including disbursements and amounts paid in settlement), which may be brought against or suffered by DELCHAIN arising directly or indirectly out of or in connection with your access or use of the Services and/or breach of these Terms.
The provisions of this Clause 16 shall survive the termination of the Client’s relationship with DELCHAIN.
SUSPENSION, TERMINATION AND CANCELLATION
You may terminate this Agreement at any time upon thirty (30) days’ written notice to DELCHAIN.
DELCHAIN may terminate this Agreement or your use of the Services, without reason upon immediate written notice to you in accordance with Clause 14 of this Agreement. You acknowledge that the decision to take certain actions, including suspending your use of the Services, may be based on confidential criteria that is essential to risk management and security protocols. You agree that DELCHAIN is under no obligation to disclose the details of its risk management and security procedures. In the event of termination pursuant to Section 17.1 or 17.2, subject to the provisions of this Agreement, DELCHAIN shall release and transfer any remaining Digital Assets to a Wallet designated by you within five (5) days of termination.
DELCHAIN reserves the right to temporarily suspend or terminate your access or use of the Services at any time in its sole discretion with immediate effect, with or without cause, and with or without notice, without incurring liability of any kind, including but not limited to: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause DELCHAIN to have legal liability or disrupt access to or use of the Service, or (c) there is scheduled downtime and recurring downtime, or unplanned technical problems and outages.
Termination of the Agreement pursuant to Clause 17.1 and 17.2 above, shall: (i) be without prejudice to DELCHAIN’s compliance with any Instruction or Instruction already initiated and any Instruction or Instructions outstanding at the time of termination will be completed: (ii) not affect any accrued rights, existing commitments or any contractual provision intended to survive termination and iii) be without penalty or other additional payment save that you shall be obligated to pay (a) any fees and charges accrued and due to DELCHAIN, pro-rated to the date of termination, (b) any expenses incurred by DELCHAIN under these Terms payable by you,(c) any additional expenses incurred by DELCHAIN in terminating this Agreement and (d) any Losses incurred by DELCHAIN in settling or concluding outstanding obligations.
In the event DELCHAIN terminates this Agreement and/or terminates or suspends your use of the Services in this way, DELCHAIN may, in its sole discretion, provide you with an opportunity, where appropriate, to correct any errors that led to the suspension. In the event your use of the Services is suspended, the suspension may be lifted as soon as reasonably practicable once the reasons for suspension no longer exist. However, DELCHAIN is under no obligation to comply with an Instruction in accordance with the terms of any withdrawn or cancelled Instruction.
Notwithstanding any termination of this Agreement or suspension of the Services, you will be responsible for the payment of all outstanding amounts owed to DELCHAIN and hereby authorizes DELCHAIN to disregard or cancel any pending Instructions at the time of cancellation. DELCHAIN shall also be entitled, without prior notice to you, to take such actions as may be required to give effect to the provisions of these Terms.
Subject to the provisions of this Agreement, you agree that upon termination of this Agreement and/or the Services, DELCHAIN is authorized to manage your Digital Assets in any manner it deems fit, to recover any liabilities, fees, costs and expenses owed to DELCHAIN without any notice to you.
DELCHAIN reserves the right to amend these Terms at any time. You will be notified of amendments to these Terms by an email notification to the Email address or in any other appropriate manner. In the event you do not object to such amendments and/or continue to use of the Services or any part of the Services after seven (7) days of receiving such notice, you will be deemed to have accepted the amendment(s) as made from time to time.
DELCHAIN shall not be responsible for any failure or delay in performing any of its responsibilities to you or for any Loss arising directly or indirectly in relation thereto where such failure or delay occurs by reason of circumstances beyond DELCHAIN’s control including without limitation, labor difficulties or troubles, mechanical breakdowns, flood, fire, explosion, earthquake or similar catastrophe, acts of God, acts of government or of any regulatory authority or agency or failures of transportation, communication or power supply (each a “Force Majeure Event”). DELCHAIN’s responsibilities to you hereunder shall be suspended for so long as the Force Majeure Event continues and DELCHAIN agrees to notify you of the commencement or cessation of a Force Majeure Event. Either you or DELCHAIN may terminate this relationship if the Force Majeure Event continues for more than three months after the commencement thereof by written notice to the other party.
The Agreement and these Terms shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas and you hereby submit to the non-exclusive jurisdiction of the courts of the said Commonwealth. Nothing contained in this clause 20 shall limit the right of DELCHAIN to take proceedings against you in any other court of competent jurisdiction, nor shall the taking of proceedings in one jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.
Subject to the conditions and exceptions noted herein and to the extent not inconsistent with applicable law, the parties agree that all controversies concerning (a) any Instruction; (b) the construction, performance or breach of this Agreement; or (c) any other matter which may arise between DELCHAIN and you, shall be referred to and fully determined by arbitration before a three (3) person arbitral tribunal and conducted pursuant to the laws and Arbitration Act of the Commonwealth of The Bahamas. Each party hereto shall appoint an arbitrator and the two (2) arbitrators shall jointly appoint the third and presiding arbitrator (who shall be neutral, impartial and unaffiliated with any party) within fourteen (14) days of appointment. The place of arbitration shall be The Bahamas.
The parties understand that such arbitration shall be final and binding, and that by agreeing to arbitration, both parties are waiving their respective rights to seek remedies in court, including the right to a jury trial. You acknowledge and agree that in the specific event of non-payment of any portion of fees pursuant to Clause 8 of this Agreement, DELCHAIN, in addition to the aforementioned arbitration remedy, shall be free to pursue all other legal remedies available to it under law, and shall be entitled to reimbursement of reasonable attorney’s fees and other costs of collection. This Clause 21 shall survive termination of this Agreement.
The arbitrator shall not have the power to award damages that are limited or waived by these Terms (such as punitive damages, or any other damages which are not compensatory), to the extent such limitation or waiver is permitted under applicable law, and the parties waive any right to recover any such damages. Further, the arbitrator shall have no power to issue any award that is contrary to or inconsistent with any applicable statute, case law or constitutional law, to modify, change or excuse performance of any material term of these Terms, or to award equitable relief. The arbitration proceedings and decision of the arbitrator shall be kept confidential (and may not be disclosed) by the parties or the arbitrator, except to the extent necessary to compel any award made by the arbitrator.
Notwithstanding any provision to the contrary, only by written mutual agreement the parties may vary: (i) the arbitration procedures set forth in this Clause 21 and/or (ii) the applicable substantive laws for any arbitration conducted pursuant to the terms of this Agreement.
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