1. Account Setup
1.1. Eligibility. To be eligible to use the Rare Elements Services, you must be at least 13 years old.
1.2. Terms. We may amend or modify this Agreement at any time by posting the revised agreement on the Rare Elements Site and/or providing a copy to you (a “Revised Agreement”). The Revised Agreement shall be effective as of the time it is posted but will not apply retroactively. Your continued use of the Services after the posting of a Revised Agreement constitutes your acceptance of such Revised Agreement. If you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services and close your account.
1.3. Registration of Rare Elements Account. You must register for a Rare Elements account to use the Rare Elements Services (a "Rare Elements Account"). By using a Rare Elements Account you agree and represent that you will use Rare Elements only for yourself, and not on behalf of any third party, unless you have obtained prior approval from Rare Elements. You are fully responsible for all activity that occurs under your Rare Elements Account. We may, in our sole discretion, refuse to open a Rare Elements Account, or limit the number of Rare Elements Accounts that you may hold or suspend or terminate any Rare Elements Account or the trading of specific Digital Currency in your account.
1.4. Access. To access the Rare Elements Services, you must have the necessary equipment (such as a smartphone or laptop) and the associated telecommunication service subscriptions to access the Internet. The Rare Elements Services can be accessed directly using the Rare Elements Site. Access to Rare Elements Services may become degraded or unavailable during times of significant volatility or volume. This could result in the inability to claim for periods of time and may also lead to support response time delays. Although we strive to provide you with excellent service, we do not represent that the Rare Elements Site or other Rare Elements Services will be available without interruption and we do not guarantee that any order will be executed, accepted, recorded, or remain open. Rare Elements shall not be liable for any losses resulting from or arising out of transaction delays.
2. Wallet and Custodial Services
2.1. Wallet Services.
As part of your Rare Elements Account, Rare Elements will provide qualifying users access to: (a) a hosted Digital Currency wallet(s) for holding Digital Currencies (“Digital Currency Wallet”).
2.2. Hosted Digital Currency Wallet.
Your Digital Currency Wallet allows you to store, track, transfer, and manage your balances of Digital Currency. As used throughout, "Digital Currency" means only those particular digital currencies listed as available to trade or custody in your Rare Elements Account (also referred to as “Supported Digital Currency”). Services and supported assets may vary by jurisdiction. You may elect to use other services, such as the Metamask, which allow you the custody and transfer of your Digital Currency as Rare Elements do not take hold of any private keys required to complete transactions. Additional rules associated with such product(s) and service(s) may apply.
2.3. Supported Digital Currencies.
Your Rare Elements Account is intended solely for proper use of Supported Digital Currencies and other Digital Assets as designated on the Site. Under no circumstances should you attempt to use your Digital Currency Wallet to store, send, request, or receive any assets other than Supported Digital Currencies. Rare Elements assumes no responsibility in connection with any attempt to use your Digital Currency Wallet with digital currencies that we do not support.
2.4. Supplemental Protocols Excluded.
Unless specifically announced on the Rare Elements Site or other official public statement of Rare Elements, Supported Digital Currencies excludes all other protocols and/or functionality which supplement or interact with the Supported Digital Currency. This exclusion includes but is not limited to: metacoins, colored coins, side chains, or other derivative, enhanced, or forked protocols, tokens, or coins or other functionality, such as staking, protocol governance, and/or any smart contract functionality, which may supplement or interact with a Digital Currency we support. Do not use your Rare Elements Account to attempt to receive, request, send, store, or engage in any other type of transaction or functionality involving any such protocol as Rare Elements is not configured to detect, secure, or process these transactions and functionality. Any attempted transactions in such items will result in loss of the item. You acknowledge and agree that supplemental protocols are excluded from Supported Digital Currency and that Rare Elements has no liability for any losses related to supplemental protocols.
2.5 Operation of Digital Currency Protocols.
We do not own or control the underlying software protocols which govern the operation of Digital Currency supported on our platform. Generally, the underlying protocols are open source, and anyone can use, copy, modify, and distribute them. We assume no responsibility for the operation of the underlying protocols and we are not able to guarantee the functionality or security of network operations. In particular, the underlying protocols may be subject to sudden changes in operating rules (including “forks”). Any such material operating changes may materially affect the availability, value, functionality, and/or the name of the Digital Currency you store in your Digital Currency Wallet. Rare Elements does not control the timing and features of these material operating changes. It is your responsibility to make yourself aware of upcoming operating changes and you must carefully consider publicly available information and information that may be provided by Rare Elements in determining whether to continue to use a Rare Elements Account for the affected Digital Currency. In the event of any such operational change, Rare Elements reserves the right to takes such steps as may be necessary to protect the security and safety of assets held on the Rare Elements platform, including temporarily suspending operations for the involved digital currency(ies), and other necessary steps; Rare Elements will use its best efforts to provide you notice of its response to any material operating change; however, such changes are outside of Rare Elements’ control and may occur without notice to Rare Elements. Rare Elements’ response to any material operating change is subject to its sole discretion and includes deciding not to support any new digital currency, fork, or other actions. You acknowledge and accept the risks of operating changes to Digital Currency protocols and agree that Rare Elements is not responsible for such operating changes and not liable for any loss of value you may experience as a result of such changes in operating rules. You acknowledge and accept that Rare Elements has sole discretion to determine its response to any operating change and that we have no responsibility to assist you with unsupported currencies or protocols.
2.6. Digital Currency Custody and Title.
All Digital Currencies held in your Digital Currency Wallet are custodial assets held by Rare Elements for your benefit, as described in further detail below.
Title to Digital Currency shall at all times remain with you and shall not transfer to Rare Elements. As the owner of Digital Currency in your Digital Wallet, you shall bear all risk of loss of such Digital Currency. Rare Elements shall have no liability for Digital Currency fluctuations. None of the Digital Currencies in your Digital Currency Wallet are the property of, or shall or may be loaned to, Rare Elements; Rare Elements does not represent or treat assets in User’s Digital Currency Wallets as belonging to Rare Elements. Rare Elements may not grant a security interest in the Digital Currency held in your Digital Currency Wallet. Except as required by a facially valid court order, or except as provided herein, Rare Elements will not sell, transfer, loan, hypothecate, or otherwise alienate Digital Currency in your Digital Currency Wallet unless instructed by you.
You control the Digital Currencies held in your Digital Currency Wallet. At any time, subject to outages, downtime, and other applicable policies, you may withdraw your Digital Currency by sending it to a different blockchain address. As long as you continue to custody your Digital Currencies with Rare Elements.
2.6.3 Acknowledgement of Risk.
You acknowledge that Digital Currency is not subject to protections or insurance provided by the Federal Deposit Insurance Corporation or the Securities Investor Protection Corporation.
3. Payment Services, Purchase & Sale Transactions, Credit Transactions
In general, Rare Elements makes money when action on a trade via our Site into our partner exchanges. By using Rare Elements Services you agree to pay all applicable fees. Rare Elements reserves the right to adjust its pricing and fees and any applicable waivers at any time. We will always notify you of the pricing and fees which apply to your transaction when you authorize the transaction and in each receipt we issue to you. We may charge network fees (miner fees) to process a Digital Currency Transaction on your behalf. We will calculate the network fee in our discretion, although we will always notify you of the network fee at or before the time you authorize the Digital Currency Transaction.
3.1. Unauthorized and Incorrect Transactions.
When a Digital Currency occurs using your credentials, we will assume that you authorized such transaction, unless you notify us otherwise. If you believe you did not authorize a particular transaction or that a transaction was incorrectly carried out, you must contact us as soon as possible either by email free of charge at firstname.lastname@example.org. It is important that you regularly check your Digital Currency Wallet balances and your transaction history regularly to ensure you notify us as soon as possible of any unauthorized or incorrect transactions to. We are not responsible for any claim for unauthorized or incorrect transactions unless you have notified us in accordance with this section.
3.2. Account Information.
You will be able to see your Digital Currency Wallet balances using the Rare Elements Site if wallet is connected or if the information has been manually submitted into the system.
3.4. Reversals & Cancellations.
You cannot cancel, reverse, or change any transaction marked as complete or pending. If your payment is not successful, if your payment method has insufficient funds, or if you reverse a payment made from funds in other accounts, you authorize Rare Elements, in its sole discretion, either to cancel the transaction or to debit your other payment methods, including Digital Currency Wallet balances or other linked accounts, in any amount necessary to complete the transaction. You are responsible for maintaining an adequate balance and/or sufficient credit limits in order to avoid overdraft, non-sufficient funds (NSF), or similar fees charged. We reserve the right to refuse to process, or to cancel or reverse, any Digital Currency Transaction in our sole discretion, even after funds have been debited from your account(s), if we suspect the transaction involves (or has a high risk of involvement in) money laundering, terrorist financing, fraud, or any other type of financial crime; in response to a subpoena, court order, or other government order; if we reasonably suspect that the transaction is erroneous; or if Rare Elements suspects the transaction relates to Prohibited Use or a Prohibited Business as set forth below. In such instances, Rare Elements will reverse the transaction and we are under no obligation to allow you to reinstate on the same terms as the cancelled transaction.
3.5. Payment Services Partners.
Rare Elements may use a third party payment processor to process any US Dollar payment between you and Rare Elements, including but not limited to payments in relation to your use of the Digital Currency Transactions or deposits or withdrawals from your Rare Elements Account.
4. Digital Currency Transfers
4.1. In General
Your Digital Currency Wallet enables you to send Supported Digital Currency to, and request, receive, and store Supported Digital Currency from, third parties by giving instructions through the Rare Elements Site. Your transfer of Supported Digital Currencies between your other digital currency wallets (including wallets off the Rare Elements Site) and to and from third parties is a “Digital Currency Transfer”.
4.2. Pending Transactions.
Once a Digital Currency Transfer is submitted to a Digital Currency network, the transaction will be unconfirmed and remain in a pending state for a period of time sufficient to confirmation of the transaction by the Digital Currency network. A Digital Currency Transfer is not complete while it is in a pending state. Pending Digital Currency Transfers that are initiated from a Rare Elements Account will reflect a pending transaction status and are not available to you for use on the Rare Elements platform or otherwise while the transaction is pending.
4.3. Transfers to a Recipient Email Address.
Rare Elements allows you to initiate a Digital Currency Transfer to a Rare Elements customer by designating that customer’s email address. If you initiate a Digital Currency Transfer to an email address, and the recipient does not have an existing Rare Elements Account, we will invite the recipient to open a Rare Elements Account. If the recipient does not open a Rare Elements Account within 30 days, we will return the relevant Digital Currency to your Digital Currency Wallet.
4.4. Third Party Merchants.
We have no control over, or liability for, the delivery, quality, safety, legality or any other aspect of any goods or services that you may purchase from a third party (including other users of Rare Elements Digital Currency Services). We are not responsible for ensuring that a third party buyer or a seller you transact with will complete the transaction or is authorized to do so. If you experience a problem with any goods or services purchased from, or sold to, a third party using Digital Currency transferred using the Rare Elements Digital Currency Services, or if you have a dispute with such third party, you should resolve the dispute directly with that third party. If you believe a third party has behaved in a fraudulent, misleading, or inappropriate manner, or if you cannot adequately resolve a dispute with a third party, you may notify Rare Elements Support at email@example.com so that we may consider what action to take, if any.
In the event that there are outstanding amounts owed to us hereunder, including in your Rare Elements Account, Rare Elements reserves the right to debit your Rare Elements Account accordingly and/or to withhold amounts from funds you may transfer from your Rare Elements Account.
5. Additional Services
In addition to the Services above, the following services ("Additional Services") may be made available by Rare Elements to users that fulfill certain eligibility criteria.
5.2 Tax Treatment.
The tax treatment of certain Digital Currency transactions is uncertain, and it is your responsibility to determine what taxes, if any, arise from these transactions. Users are solely responsible for reporting and paying any applicable taxes arising from Rare Elements services and all related transactions, and acknowledge that Rare Elements does not provide investment, legal, or tax advice to you in connection with such election to participate. You should conduct your own due diligence and consult your advisors before making any investment decision including whether to participate in staking and related transactions.
6. Data Protection and Security
6.1. Personal Data.
6.2. Security Breach.
If you suspect that your Rare Elements Account or any of your security details have 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 Rare Elements (together a "Security Breach"), you must notify Rare Elements Support as soon as possible by email free of charge at firstname.lastname@example.org and continue to provide accurate and up to date information throughout the duration of the Security Breach. You must take any steps that we reasonably require to reduce, manage or report any Security Breach. Failure to provide prompt notification of any Security Breach may be taken into account in our determination of the appropriate resolution of the matter.
7. General Use, Prohibited Use, Death of Account Holder and Termination
7.1. Limited License.
We grant you a limited, nonexclusive, nontransferable license, subject to the terms of this Agreement, to access and use the Rare Elements Services, Rare Elements Site, and related content, materials, information (collectively, the "Content") solely for purposes approved by Rare Elements from time to time. Any other use of the Rare Elements Site or Content is expressly prohibited and all other right, title, and interest in the Rare Elements Services, Rare Elements Site or Content is exclusively the property of Rare Elements and its licensors. You agree you will not copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the Content, in whole or in part without the prior written consent of Rare Elements.
7.2. Website Accuracy.
Although we intend to provide accurate and timely information on the Rare Elements Site, the Rare Elements Site (including, without limitation, the Content) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. In an effort to continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including without limitation information regarding our policies, products and services. Accordingly, you should verify all information before relying on it, and all decisions based on information contained on the Rare Elements Site are your sole responsibility and we shall have no liability for such decisions. Information provided by third parties, including historical price and supply data for Digital Currencies, is for informational purposes only and Rare Elements makes no representations or warranties to its accuracy. Links to third-party materials (including without limitation websites) may be provided as a convenience but are not controlled by us. You acknowledge and agree that we are not responsible for any aspect of the information, content, or services contained in any third-party materials or on any third-party sites accessible or linked to the Rare Elements Site,
From time to time, Rare Elements may make available special offers or conduct promotions for qualifying customers. Subject to applicable laws, Rare Elements or the issuer of a Digital Currency subject to an offer or promotion may establish qualifying criteria to participate in any special promotion its sole discretion. Rare Elements may revoke any special offer at any time without notice. Once Digital Currency has been deposited in a user’s Digital Currency Wallet, that Digital Currency becomes the property of the Rare Elements user with all applicable property rights, including those noted in Section 2.2 of this Agreement. Rare Elements shall have no obligation to make special offers available to all customers. Rare Elements makes no recommendation and does not provide any advice about the value or utility of any Digital Currency subject to a promotion.
7.4. Third-Party Applications.
If, to the extent permitted by Rare Elements from time to time, you grant express permission to a third party to access or connect to your Rare Elements Account(s), either through the third party's product or service or through the Rare Elements Site, you acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under this Agreement. You are fully responsible for all acts or omissions of any third party with access to your Rare Elements Account(s). Further, you acknowledge and agree that you will not hold Rare Elements responsible for, and will indemnify Rare Elements from, any liability arising out of or related to any act or omission of any third party with access to your Rare Elements Account(s). You may change or remove permissions granted by you to third parties with respect to your Rare Elements Account(s) at any time through the tabs on the Account Settings page on the Rare Elements Site.
7.5. Prohibited Use.
In connection with your use of the Rare Elements Services, and your interactions with other users, and third parties you agree and represent you will not engage in any Prohibited Business or Prohibited Use defined herein. We reserve the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, sanctions programs, legal process or governmental request. We reserve the right to cancel and/or suspend your Rare Elements Account(s) and/or block transactions or freeze funds immediately and without notice if we determine, in our sole discretion, that your Account is associated with a Prohibited Use and/or a Prohibited Business.
7.7. Suspension, Termination, and Cancellation.
Rare Elements may: (a) suspend, restrict, or terminate your access to any or all of the Rare Elements Services, and/or (b) deactivate or cancel your Rare Elements Account(s) if: (i) we are so required by a facially valid subpoena, court order, or binding order of a government authority; (ii) we reasonably suspect you of using your Rare Elements Account(s) in connection with a Prohibited Use or Business; (iii) use of your Rare Elements Account(s) is subject to any pending litigation, investigation, or government proceeding and/or we perceive a heightened risk of legal or regulatory non-compliance associated with your Account activity; (iv) our service partners are unable to support your use; (v) you take any action that Rare Elements deems as circumventing Rare Elements' controls, including, but not limited to, opening multiple Rare Elements Accounts or abusing promotions which Rare Elements may offer from time to time. If Rare Elements suspends or closes your account, or terminates your use of Rare Elements Services for any reason, we will provide you with notice of our actions unless a court order or other legal process prohibits Rare Elements from providing you with such notice. You acknowledge that Rare Elements' decision to take certain actions, including limiting access to, suspending, or closing your account, may be based on confidential criteria that are essential to Rare Elements' risk management and security protocols. You agree that Rare Elements is under no obligation to disclose the details of its risk management and security procedures to you. You not will be permitted to transfer Digital Currency or funds associated with your Hosted Digital Currency Wallet(s) after Account deactivation or cancellation unless such transfer is otherwise prohibited (i) under the law, including but not limited to applicable sanctions programs, or (ii) by a facially valid subpoena or court order. You may cancel your Rare Elements Account(s) at any time by withdrawing all balances and visiting https://www.Rare Elements.com/settings. You will not be charged for canceling your Rare Elements Account(s), although you will be required to pay any outstanding amounts owed to Rare Elements. You authorize us to cancel or suspend any pending transactions at the time of cancellation.
7.8. Death of Account Holder.
For security reasons, if we receive legal documentation confirming your death or other information leading us to believe you have died, we will freeze your Rare Elements Account and during this time, no transactions may be completed until:(i) your designated fiduciary has opened a new Rare Elements Account, as further described below, and the entirety of your Rare Elements Account has been transferred to such new account, or (ii) we have received proof in a form satisfactory to us that you have not died. If we have reason to believe you may have died but we do not have proof of your death in a form satisfactory to us, you authorize us to make inquiries, whether directly or through third parties, that we consider necessary to ascertain whether you have died. Upon receipt by us of proof satisfactory to us that you have died, the fiduciary you have designated in a valid Will or similar testamentary document will be required to open a new Rare Elements Account. If you have not designated a fiduciary, then we reserve the right to (i) treat as your fiduciary any person entitled to inherit your Rare Elements Account, as determined by us upon receipt and review of the documentation we, in our sole and absolute discretion, deem necessary or appropriate, including (but not limited to) a Will, a living trust or a Small Estate Affidavit, or (ii) require an order designating a fiduciary from a court having competent jurisdiction over your estate. In the event we determine, in our sole and absolute discretion, that there is uncertainty regarding the validity of the fiduciary designation, we reserve the right to require an order resolving such issue from a court of competent jurisdiction before taking any action relating to your Rare Elements Account. Pursuant to the above, the opening of a new Rare Elements Account by a designated fiduciary is mandatory following the death of a Rare Elements Account owner, and you hereby agree that your fiduciary will be required to open a new Rare Elements Account and provide the information required under Section 2 of this Agreement in order to gain access to the contents of your Rare Elements Account.
7.9. Unclaimed Property.
If Rare Elements is holding funds in your account, and Rare Elements is unable to contact you and has no record of your use of the Services for several years, applicable law may require Rare Elements to report these funds as unclaimed property to the applicable jurisdiction. If this occurs, Rare Elements will try to locate you at the address shown in our records, but if Rare Elements is unable to locate you, it may be required to deliver any such funds to the applicable state or jurisdiction as unclaimed property.
7.10. Relationship of the Parties.
Rare Elements is an independent contractor for all purposes. Nothing in this Agreement shall be deemed or is intended to be deemed, nor shall it cause, you and Rare Elements to be treated as partners, joint ventures, or otherwise as joint associates for profit, or either you or Rare Elements to be treated as the agent of the other.
7.11. Privacy of Others; Marketing.
If you receive information about another user through the Rare Elements Services, you must keep the information confidential and only use it in connection with the Rare Elements Services. You may not disclose or distribute a user's information to a third party or use the information except as reasonably necessary to effectuate a transaction and other functions reasonably incidental thereto such as support, reconciliation and accounting unless you receive the user's express consent to do so. You may not send unsolicited email to a user through the Rare Elements Services.
It is your sole responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct through the Rare Elements Services, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities. Your transaction history is available through your Rare Elements Account(s).
7.13. No Investment Advice or Brokerage.
For the avoidance of doubt, Rare Elements does not provide investment, tax, or legal advice, nor does Rare Elements broker trades on your behalf. All Rare Elements trades are executed automatically, based on the parameters of your order instructions and in accordance with posted Trade execution procedures, and you are solely responsible for determining whether any investment, investment strategy or related transaction is appropriate for you based on your personal investment objectives, financial circumstances and risk tolerance. You should consult your legal or tax professional regarding your specific situation. Rare Elements may provide educational information about Supported Digital Currency, as well as Digital Currency not supported by Rare Elements, in order to assist users in learning more about such Digital Currency. Information may include, but is not limited to, blog posts, articles, links to third-party content, news feeds, tutorials, and videos. The information provided on this website or any third-party sites does not constitute investment advice, financial advice, trading advice, or any other sort of advice, and you should not treat any of the website's content as such. Rare Elements does not recommend that any Digital Currency should be bought, earned, sold, or held by you. Before making the decision to buy, sell or hold any Digital Currency, you should conduct your own due diligence and consult your financial advisors before making any investment decision. Rare Elements will not be held responsible for the decisions you make to buy, sell, or hold Digital Currency based on the information provided by Rare Elements.
8. Customer Feedback, Queries, Complaints, and Dispute Resolution
8.1. Contact Rare Elements.
If you have feedback, or general questions, contact us via our Customer Support at email@example.com. When you contact us please provide us with your name, e-mail address, and any other information we may need to identify you, your Rare Elements Account(s), and the transaction on which you have feedback or questions. Rare Elements requires that all legal documents (including civil subpoenas, complaints, and small claims) be served on our registered agent for service of process.
9. General Provisions
9.1. Computer Viruses.
We shall not bear any liability, whatsoever, for any damage or interruptions caused by any computer viruses or other malicious code that may affect your computer or other equipment, or any phishing, spoofing or other attack. We advise the regular use of a reputable and readily available virus screening and prevention software. You should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from Rare Elements. Always log into your Rare Elements Account(s) through the Rare Elements Site to review any transactions or required actions if you have any uncertainty regarding the authenticity of any communication or notice.
9.2. Release of Rare Elements; Indemnification.
If you have a dispute with one or more users of the Rare Elements Services, you release Rare Elements, its affiliates and service providers, and each of their respective officers, directors, agents, joint venturers, employees and representatives from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. You agree to indemnify and hold Rare Elements, its affiliates and Service Providers, and each of its or their respective officers, directors, agents, joint venturers, employees and representatives, harmless from any claim or demand (including attorneys' fees and any fines, fees or penalties imposed by any regulatory authority) arising out of or related to your breach of this Agreement or your violation of any law, rule or regulation, or the rights of any third party.
9.3. Limitation of Liability; No Warranty.
IN NO EVENT SHALL RARE ELEMENTS, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE (A) FOR ANY AMOUNT GREATER THAN THE VALUE OF THE SUPPORTED DIGITAL CURRENCY ON DEPOSIT IN YOUR RARE ELEMENTS ACCOUNT(S) OR (B) FOR ANY LOST PROFITS, DIMINUTION IN VALUE OR BUSINESS OPPORTUNITY, ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF DATA OR ANY OTHER INTANGIBLE PROPERTY OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH AUTHORIZED OR UNAUTHORIZED USE OF THE RARE ELEMENTS SITE OR THE RARE ELEMENTS SERVICES, OR THIS AGREEMENT, EVEN IF AN AUTHORIZED REPRESENTATIVE OF RARE ELEMENTS HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT TO THE EXTENT OF A FINAL JUDICIAL DETERMINATION THAT SUCH DAMAGES WERE A RESULT OF RARE ELEMENTS’S GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW. THIS MEANS, BY WAY OF EXAMPLE ONLY (AND WITHOUT LIMITING THE SCOPE OF THE PRECEDING SENTENCE), THAT IF YOU CLAIM THAT RARE ELEMENTS FAILED TO PROCESS A BUY OR SELL TRANSACTION PROPERLY, YOUR DAMAGES ARE LIMITED TO NO MORE THAN THE VALUE OF THE SUPPORTED DIGITAL CURRENCY AT ISSUE IN THE TRANSACTION, AND THAT YOU MAY NOT RECOVER FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES, DIMINUTION IN VALUE OR OTHER TYPES OF SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN EXCESS OF THE VALUE OF THE SUPPORTED DIGITAL CURRENCY AT ISSUE IN THE TRANSACTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE RARE ELEMENTS SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Rare Elements SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. Rare Elements DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SITE, ANY PART OF THE RARE ELEMENTS SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. RARE ELEMENTS DOES NOT GUARANTEE THAT ANY ORDER WILL BE EXECUTED, ACCEPTED, RECORDED OR REMAIN OPEN. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THIS AGREEMENT, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, WITH RESPECT TO YOUR USE AND ACCESS OF THE RARE ELEMENTS SERVICES AND RARE ELEMENTS SITE. WITHOUT LIMITING THE FOREGOING, YOU HEREBY UNDERSTAND AND AGREE THAT RARE ELEMENTS WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO: (A) ANY INACCURACY, DEFECT OR OMISSION OF DIGITAL CURRENCY PRICE DATA, (B) ANY ERROR OR DELAY IN THE TRANSMISSION OF SUCH DATA, OR (C) INTERRUPTION IN ANY SUCH DATA. Rare Elements makes no representations about the accuracy, order, timeliness or completeness of historical Digital Currency price data available on the Rare Elements Site. Rare Elements will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner but Rare Elements makes no representations or warranties regarding the amount of time needed to complete processing which is dependent upon many factors outside of our control.
9.4. Entire Agreement.
We may amend or modify this Agreement by posting on the Rare Elements Site or emailing to you the revised Agreement, and the revised Agreement shall be effective at such time. If you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services and close your account. You agree that we shall not be liable to you or any third party for any modification or termination of the Rare Elements Services, or suspension or termination of your access to the Rare Elements Services, except to the extent otherwise expressly set forth herein. If the revised Agreement includes a material change, we will endeavor to provide you advanced notice via our website and/or email before the material change becomes effective.
You may not assign any rights and/or licenses granted under this Agreement. We reserve the right to assign our rights without restriction, including without limitation to any Rare Elements affiliates or subsidiaries, or to any successor in interest of any business associated with the Rare Elements Services. Any attempted transfer or assignment in violation hereof shall be null and void. Subject to the foregoing, this Agreement will bind and insure to the benefit of the parties, their successors and permitted assigns.
If any provision of this Agreement shall be determined to be invalid or unenforceable under any rule, law, or regulation of any local, state, or federal government agency, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the validity or enforceability of any other provision of this Agreement shall not be affected.
9.8. Change of Control.
In the event that Rare Elements is acquired by or merged with a third party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control.
All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, sections pertaining to suspension or termination, Rare Elements Account cancellation, debts owed to Rare Elements, general use of the Rare Elements Site, disputes with Rare Elements, and general provisions, shall survive the termination or expiration of this Agreement.
9.10. Force Majeure.
We shall not be liable for delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, significant market volatility, any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
9.11. Non-Waiver of Rights.
This agreement shall not be construed to waive rights that cannot be waived under applicable state money transmission laws in the state where you are located.