1. Risk Warning
1.1 These Terms and Conditions (Terms) set out an agreement between Immutable X Pty Limited ACN 644 717 840 (we, us, our or Immutable) and you, relating to the use of your Digital Wallet.
1.2 When you connect your Digital Wallet, you will need to click on a link on our Website and you are responsible for ensuring your Digital Wallet is accurately linked to the Website. If the link you click on does not contain the Immutable URL https://link.x.immutable.com/, you must not click on it as it may be a hostile link. Clicking on a hostile link may enable someone to obtain your private key and use it to steal your digital assets.
1.3 There are certain Digital Wallets (such as the Magic.link wallet) in which the return data will not show the URL used to initialise the wallet. The only way to manage the security of the wallet and its assets is to ensure you only click on a link from a trusted website.
1.4 Other Digital Wallets (sucha s Metamask) will show in the return data the URL and you should check that data to ensure the URL is from Immutable.
1.5 It is vital that you understand and acknowledge that your ownership of Non-fungible tokens (NFTs) remains contingent upon you remaining in control of your Digital Wallet. We have no ability to access or restore any seed phrases or private key(s) associated with your Digital Wallet and that we will not store any information in connection with your Digital Wallet beyond that required for the sale of NFTs.
1.6 By linking your Digital Wallet to Immutable, or using any of Immutable’s services, you are agreeing to our Terms, so it is important that you carefully read and understand them.
2. Wallet Registration and Account Information
2.1 When you link your Digital Wallet to Immutable your wallet will generate a private StarkEx key. This private key permits transactions using your Digital Wallet.
2.2 You will be responsible for maintaining the confidentiality of your private StarkEx key and keystore and any passwords to access your Digital Wallet. You will be responsible for all activities that occur using your Digital Wallet. We will not be liable for any loss or damage arising from your failure to comply with these Terms.
3. Your use of a Digital Wallet
3.1 In using your Digital Wallet, you must:
a) only transfer legally-obtained digital assets that belong to you;
b) obey all applicable laws in connection with using the Services; and
c) not use the Website or the Services if the laws of your country, or any other applicable law, prohibit you from doing so.
3.2 Any digital assets you use in connection with the Services must be either owned by you or you must be validly authorized to carry out actions using such digital assets. In addition to complying with all restrictions, prohibitions, and other provisions of these Terms, and you will:
a) ensure that, at all times, all information that you provide to us and during your use of the Services is current, complete, and accurate;
b) maintain the security and confidentiality of your private keys associated with your public Ethereum address, passwords, API keys, private keys associated with your StarkEx Service account (STARK keys) and other related credentials.
3.3 When using our Services, we ask that you follow some basic rules:
a) Don’t use our Services to break the law. You agree that you will not violate any laws when using our Services. This includes any local, provincial, state, federal, national, or international laws that may apply to you. You agree that you will not use our Services to pay for, support, or otherwise engage in any illegal activities including, but not limited to, illegal gambling, fraud, money laundering, or terrorist activities. If we discover that you have violated these Terms or other regulatory requirements including, by participating in money laundering or by financing terrorist activities, we will take proportional disciplinary action. You further agree not to encourage or induce any third party to engage in any of the activities prohibited under this clause 3.3(a).
b) Don’t interfere with other’s use of the Services. You agree that you will not use or attempt to use another user’s Digital Wallet without authorization or use our Services in any manner that could interfere, disrupt, negatively affect, or inhibit other users from fully enjoying it.
c) Don’t try to harm our system. You agree not to distribute any virus or other harmful computer code through your Digital Wallet or otherwise. You also agree to not take any action that may impose an unreasonable or disproportionately large load on our or any of our third party providers’ infrastructure
d) Don’t attempt to circumvent our security. You agree not to bypass, circumvent, or attempt to bypass or circumvent any measures that we may use to prevent or restrict access to the Services including, without limitation, other accounts, computer systems, or networks connected to the Services. Any use of a Digital Wallet other than as specifically authorized in these Terms, without our prior written permission, is strictly prohibited and we may terminate your account in response.
4. Third Party Services and Content
4.1 In no event shall a description or reference to a third party’s product or service (including, but not limited to, a Digital Wallet) be construed as an endorsement or promotion of such third party products or services by us. We retain the exclusive right to add to, modify, or cancel the availability of any third party service. If, to the extent permitted by linking your Digital Wallet, you grant express permission to a third party to access or connect to your Digital Wallet or your account with us, either through a third party’s product or service or through the Digital Wallet, 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 these Terms. You are fully responsible for all acts or omissions of any third party with access to your Digital Wallet.
5. Limitation of Liability and Disclaimer of Warranties
5.1 You agree that:
a) you are sufficiently experienced and educated in dealing with and storing NFTs using a Digital Wallet;
b) you are the lawful owner of your Digital Wallet nominated for delivery of NFTs;
c) your Digital Wallet is owned and operated solely for your benefit, and no person has any right, title or interest in your nominated Digital Wallet; and
d) any Digital Wallet address you provide to us has been generated in accordance with best practice security measures and no other party, other than you or your authorised representative, has used, or has access to, the seed phrases, private keys or analogous passwords required to effect transfers from, the Digital Wallet.
5.2 You understand and agree that:
a) we have no control over, and no duty to take any action regarding failures, disruptions, errors, or delays in processing NFTs that you may experience while connecting your Digital Wallet;
b) we have no control over the risk of failure of hardware, software, and Internet connections; the risk of malicious software being introduced or found in the software underlying the Digital Wallet; the risk that third parties may obtain unauthorised access to information stored within your Digital Wallet, including, but not limited to your Digital Wallet address, private key, and mnemonic (backup) phrase; and the risk of unknown vulnerabilities in or unanticipated changes to the Ethereum Networks;
c) there may be other vulnerabilities in our partner software which uses immutable which could give rise to security risks in relation to your wallet. We have no control over our partner software and their security.
5.3 You understand that the StarkEx service (Service) remains under development, which creates technological, trading, and other risks when using the Services. These risks include, among others, delays in trades, withdrawals, and deposits resulting from the servers of Immutable or the operator of the Services being offline; an incorrect display of information on the Website in the case of server errors; or transactions using the Services being rolled back in the case of server errors. You acknowledge that these risks may have a material impact on your transactions using the Services, which may result in, among other things, failing to fulfill transactions at your desired price or at all.
5.4 To the extent permitted by law, in no event will we or any of our officers, directors, representatives, agents, servants, counsel, employees, consultants, lawyers, and other personnel authorised to act, acting, or purporting to act on our behalf be liable to you under contract, tort, strict liability, negligence, or any other legal or equitable theory, for any unauthorised use of your Digital Wallet address and/or private key due to your failure to maintain the confidentiality of your Digital Wallet, or any hacking or unauthorised or unexpected performance or activity occurring within your Digital Wallet.
5.5 In no event will we be liable to you for any interruption or cessation of transmission to or from our services or any bugs, viruses, trojan horses, or the like that are found in the our software or that may be transmitted to or through our services by any third party to your Digital Wallet.
5.6 You will defend and indemnify Immutable, its affiliates, respective shareholders, members, directors, officers, managers, employees, lawyers, agents, representatives, suppliers, and contractors from any legal claim, demand, damage, loss, cost or expense, including without limitation reasonable legal fees, arising out of or relating to your use of, or conduct in connection with your Digital Wallet and Digital Assets associated with your Ethereum address.
5.7 The link we provide to your Digital Wallet is provided "as is" and without warranty of any kind. To the extent permitted by law, we deny all representations and warranties, express or implied, relating to the services and underlying software or any content on the services, whether provided or owned by us or by any third party. We do not represent or warrant that the Digital Wallet or any content accessible via our services is accurate, complete, available, current, free of viruses or other harmful components, or that the results of using the services will meet your requirements. In particular Digital Wallets are subject to constant inquiry and security pressures and you must be comfortable accepting the risk of your Digital Wallet, which we do not maintain or provide, being the subject of a hack, bug, or impacted in a way such that it will not perform as expected.
To the extent permitted by law, you agree to defend and indemnify Immutable from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including, but not limited to, legal fees) arising from your use of and access to your Digital Wallet and any feedback or submissions you provide to us concerning the Digital Wallet.
7.1 You release us from all liability related to any losses, damages, or claims arising from:
a) user error such as forgotten passwords, incorrectly constructed transactions, or mistyped virtual currency addresses;
b) server failure or data loss;
c) unauthorised access to your Digital Wallet;
d) connecting your Digital Wallet to a hostile link;
e) bugs or other errors in the linked software; and
f) any unauthorised third party activities, including, but not limited to, the use of viruses, phishing, brute forcing, or other means of attack against our Website through the link.
7.2 We make no representations concerning any third party content contained in or accessed through our Services, including third party Digital Wallet providers.
8. Dispute Resolution
8.1 In the event of termination concerning your linked Digital Wallet, your obligations under these Terms will still continue. Your access to the funds in your Digital Wallet after termination will depend on your access to your backup of your Digital Wallet address and private key.
8.2 You agree to use your best efforts to resolve any dispute(s) that may arise regarding your Digital Wallet in accordance with these Terms.
8.3 You will not make any claims relating to any of the matters raised in these Terms and agree to indemnify us against any liabilities that may arise as a result of your Digital Wallet.
9. No Waiver
Our failure to exercise or delay in exercising any right, power, or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof.
If it turns out that any part of these Terms is invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.
You agree to mediate/arbitrate any dispute arising from these Terms or your use of the services on an individual basis. You hereby expressly waive trial by jury. At your request, hearings may be conducted in person or by telephone and the mediator/arbitrator may provide for submitting and determining motions on briefs, without oral hearings. The mediator/arbitrator has the authority to grant any remedy that would otherwise be available to a court or other tribunal. The prevailing party in any action or proceeding to enforce these terms shall be entitled to costs and legal fees. The mediator/arbitrator’s decision may be enforced in any court. Whether the dispute is heard in mediation/arbitration or in court, you will not commence against mediation/arbitration, or legal proceeding.
12. Force Majeure
We shall not be held liable for any delays, failure in performance, or interruptions of service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to: any delay or failure due to any act of God, act of civil or military authorities, act of terrorism, civil disturbance, war, strike or other 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.
You agree that we may assign any of our rights and/or transfer, sub-contract, or delegate any of our obligations under these Terms. Your agreement to these Terms is personal to you and you may not transfer or assign it to any third party.
14. Entire Agreement
These Terms set forth the entire understanding and agreement as to the use of your Digital Wallet and supersedes any and all prior discussions, agreements, and understandings of any kind (including, without limitation, any prior versions of these Terms). Except as provided for above, any modification to these Terms must be in writing and must be signed by both parties.
15. Governing Law
No matter where you are located, the laws of Australia will govern these Terms as if you signed these Terms in Australia, without regard to Australia’s conflicts of laws rules. If any provisions of these Terms are inconsistent with any applicable law, those provisions will be superseded or modified only to the extent such provisions are inconsistent. The parties agree to submit to the federal or state courts in Australia, for exclusive jurisdiction of any dispute arising out of or related to your use of the Services or your breach of these Terms.
In this Agreement:
Digital Wallet means the applicable software operating a public/private key pair system to manage your private keys and holdings of Digital Assets;
Service has the meaning given in clause 5.3;
URL means uniform resource locator which is a website address that identifies its location on the web;
Website means https://www.immutable.com and/or any other website we may operate from time to time.