In consideration of Diamante Financial Technologies, a member of the Diamante group, and/or its agents, assigns and/or affiliates (collectively, “Diamante”) opening an account (“Diamante Account”) on your (“Customer”) behalf, or my access or use of the Diamante Platform, I represent and agree to the terms set forth below (the “Agreement”). When used in this Agreement, the words “I”, “me”, or “my” mean the owner of the Diamante Account. Customer understands that the collective suite of software applications and other applications (the “Platform”) is operated by Diamante, together with certain of its affiliates (each, an “Affiliate” and together, the “Affiliates”), and may be accessed via various websites (each, a “Website”) and mobile application (the “App”).
By accessing or using the Diamante Platform (as further described below), I understand that I am agreeing to be bound by the terms of this Agreement. Including but not limited to the binding arbitration provisions contained in Section 20 below that may significantly affect my legal rights, including my right to file a lawsuit in court and to have a jury hear my claims. I fully understand that if I do not agree to be bound by this Agreement, I shall not access or use the Diamante Services (as further defined below).
CUSTOMER UNDERSTANDS THAT THE TERMS AND CONDITIONS OF THIS CUSTOMER AGREEMENT GOVERN ALL ASPECTS OF RELATIONSHIP WITH DIAMANTE REGARDING CUSTOMER’S ACCOUNT. THE CUSTOMER WILL CAREFULLY READ, UNDERSTAND AND ACCEPT THE TERMS AND CONDITIONS OF THIS CUSTOMER AGREEMENT BEFORE CHECKING THE BOX AND CLICKING CONTINUE UNDER “BY CREATING AN ACCOUNT, YOU AGREE TO OUR TERMS” (WHICH ARE AVAILABLE BY CLICKING ON “TERMS” LINK (OR SIMILAR LINK). IF THE CUSTOMER HAS ANY QUESTIONS ABOUT ANY OF THE PROVISIONS IN THIS CUSTOMER AGREEMENT, THE CUSTOMER MAY EMAIL SUPPORT@DIAMANTE.IO. THE CUSTOMER UNDERSTANDS THAT CLICKING CONTINUE UNDER “BY CREATING AN ACCOUNT, YOU AGREE TO OUR TERMS” IS THE LEGAL EQUIVALENT OF MANUALLY SIGNING THIS CUSTOMER AGREEMENT AND THE CUSTOMER WILL BE LEGALLY BOUND BY ITS TERMS AND CONDITIONS. BY ENTERING INTO THIS CUSTOMER AGREEMENT, THE CUSTOMER ACKNOWLEDGES RECEIPT OF THE DIAMANTE PRIVACY POLICY.
I understand that Diamante reserves the right to change or modify the terms and conditions of this Agreement, including but not limited to any policy or guideline at any time and at Diamante’s sole discretion. I understand that this Agreement will be amended by Diamante, with revised terms posted on Diamante’s website at www.diamante.io (the “Website”) emailed to me, or by any other means that Diamante may choose to adopt in the future. The method of notification for any changes to this Agreement shall be at Diamante’s sole discretion. All changes and modifications will be effective immediately upon posting or sending such notification to me via electronic means. I understand that my continued use of the Diamante Platform, accessing my Diamante Account, and participating in the Diamante Service constitutes an act of acceptance with respect to any such changes or modifications that Diamante may make. If I do not agree to the terms in effect when I am accessing my Diamante Account, I must stop using the Diamante Platform.
Further, I understand that Diamante may make available to me additional or ancillary services in order to facilitate the functionality of my Diamante Account and that any such additional services shall be offered to me in Diamante’s sole discretion.
1. ELIGIBILITY REQUIREMENTS
By accessing or using the Diamante Platform, I represent and warrant to Diamante that I am at least 18 years old and have not previously been suspended or removed from the Diamante Platform or have had my access revoked to a Diamante Account. I also represent and warrant that I am not a resident of a state in which Diamante is prohibited from offering Diamante Services.
I represent and warrant to Diamante that I am not: (a) located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, (b) identified as a “Specially Designated National,” (c) placed on the Commerce Department’s Denied Persons List, and (d) a person who is subject to any law, regulation, or list of any government authority (including, without limitation, the U.S. Office of Foreign Asset Control list) that would prohibit or limit Diamante’s ability to conduct business with me. I further represent and warrant that I will not use the Diamante Platform if the laws of my country or jurisdiction prohibit me from doing so in accordance with this Agreement.
Finally, I represent and warrant that I will not use the Diamante Platform for any illegal activity, including but not limited to illegal gambling, money laundering, fraud, blackmail, extortion, ransoming data or the financing of terrorism, or other violent activities.
Notwithstanding the foregoing, I acknowledge that Diamante may not make the Diamante Service, in whole or in part, available in every market, and that any such decision of whether or not to offer the Diamante Service in a particular jurisdiction is one that is made in Diamante’s sole discretion and is in part dependent on my location.
2. DIAMANTE PLATFORM AND DIAMANTE SERVICES
I understand that by accessing my Diamante Account that I have the ability to undertake certain activities with respect to certain digital assets including blockchain tokens (“Cryptocurrencies”) that are supported on the Diamante mobile application (the “App”, and together with the Website, the “Diamante Platform”) or the Website (such service, the “Diamante Service”). I agree and acknowledge that any decision that I make to purchase or sell Cryptocurrency is entirely my own and is made without any investment advice from Diamante. I further agree and acknowledge that my use of my Diamante Account and the Diamante Service is and shall be only for my personal, non-commercial purpose.
Diamante is not a broker-dealer and is not a member of the Financial Industry Regulatory Authority (“FINRA”) or the Securities Investor Protection Corporation (“SIPC”). I understand that my Cryptocurrency activities are not protected by either FDIC or SIPC insurance.
I understand that Diamante reserves the right to pass on any fees charged by any Cryptocurrency exchanges, market-makers, liquidity providers, or other types of Cryptocurrency counterparties (each such counterparty, a “Counterparty”), including in connection with the withdrawal of Cryptocurrencies to an external wallet or any fees related to any enhanced due diligence related to my Diamante Account. I further acknowledge and understand that Diamante may receive compensation from certain Counterparties with respect to Cryptocurrency transactions that are executed through my Diamante Account. In addition, I understand and agree that Diamante may contract with other third-parties in order to execute purchases, sales, and other orders regarding Cryptocurrencies.
I understand that my Diamante Account is self-directed. Accordingly, I appoint Diamante as my agent for the purpose of carrying out my directions to Diamante in accordance with the terms and conditions of this Agreement. Diamante is authorized to open or close my Diamante Account, place and withdraw orders, and take such other steps as are reasonable to carry out my directions. All transactions will be affected only on my order, or the order of my authorized delegate, except as described in Section 15. I agree to receive and transmit financial information relating to the Diamante Service through the Website and the App. My use of my Diamante Account or my grant of access to my Diamante Account to any third-party is solely at my risk.
I understand that my Diamante Account and the Diamante Service are provided to me by Diamante, and that my Diamante Account, unless otherwise indicated in writing, is separate from any other service that may be offered by Diamante.
3. SAFEKEEPING OF DIAMANTE ACCOUNT INFORMATION
I acknowledge that the security and integrity of my Diamante Account is largely dependent upon my actions and safekeeping of information relating to my Diamante Account. Accordingly, I shall not permit any other person to access my Diamante Account. I shall only access my Diamante Account using my Diamante Account login credentials and other required forms of authentication as provided solely by Diamante.
I am solely responsible for keeping Diamante Account access details including my username, password, and Diamante Account number (“Login Credentials”) confidential and secure. I agree and accept full responsibility for monitoring and safeguarding my Diamante Account. I agree to notify Diamante in writing (delivered via e-mail) immediately (but in no event more than twenty-four (24) hours following discovery) if I become aware of:
(i) any loss, theft, or unauthorized use of my Login Credentials or my Diamante Account number.
(ii) any failure by me to receive any communication from Diamante indicating that an order was received, executed or canceled, as applicable.
(iii) any failure by me to receive an accurate written confirmation of an execution.
(iv) any receipt by me of confirmation of an order, execution or cancellation, that I did not place.
(v) any inaccurate information in or relating to my Diamante Account balances, deposits, withdrawals, Cryptocurrency positions, or transaction history; or
(vi) any other unauthorized use of or access to my Diamante Account or other suspicious activity. Each of the events described in the preceding subsections (i)-(vi) shall be deemed a “Potential Fraudulent Event”.
The use and storage of any information including my Diamante Account numbers, Login Credentials, portfolio information, transaction activity, account balances, and any other information or orders available on my wireless, web-enabled cellular telephone or similar wireless communications device (collectively, “Mobile Device”) or my personal computer is at my own risk and is my sole responsibility. I represent that I am solely responsible for and have authorized any orders or instructions appearing in, originating from, or associated with my Diamante Account, Diamante Account number, and Login Credentials. I agree to notify Diamante immediately after I discover any Potential Fraudulent Event but in no event more than twenty-four (24) hours following discovery. Upon request by Diamante, I agree to report any Potential Fraudulent Event promptly to legal authorities and provide Diamante a copy of any report prepared by such legal authorities. I agree to cooperate fully with the legal authorities and Diamante in any investigation of any Potential Fraudulent Event and I will complete any required affidavits promptly, accurately, and thoroughly. I also agree to allow Diamante access to my Mobile Device, my computer, and my network in connection with any Diamante investigation of any Potential Fraudulent Event. I understand that if I fail to do any of these things I may encounter delays in regaining access to the funds in my Diamante Account. I agree to indemnify and hold Diamante, any entities controlled by, controlling, or under common control with Diamante (such entity, an “Affiliate”), and Diamante and Diamante’s Affiliates’ respective officers and employees harmless from and against any Losses arising out of or relating to any Potential Fraudulent Event. I understand and acknowledge that Diamante is not responsible for any unauthorized use of my Diamante Account.
Diamante may require multi-factor authentication to keep my Diamante Account safe and secure. As a result, I understand that, at Diamante’s discretion, I may be required to use at least two (2) forms of authentication when accessing my Diamante Account and performing certain operations in my Diamante Account. Forms of multi-factor authentication in addition to my Login Credentials may include verification tokens delivered through SMS or a specified and supported two-factor authentication (“Multi-Factor Authentication”) application. If I choose to install and use a Multi-Factor Authentication application on a device on which the operating system has been tampered with in any way, I understand that I do so at my own risk. Diamante reserves the right in Diamante’s sole discretion to prohibit access from or by any device on which the operating system has been or is suspected of having been modified or tampered with. I agree that Diamante may provide my Multi-Factor Authentication data to a third-party service provider in order to help authenticate me.
I understand that it is my sole responsibility to review my transaction history, Trade Confirmations, and any notices from Diamante or its Affiliates. I understand and agree that for the purposes of review and acknowledgment, I agree to be deemed to have reviewed my transaction history and all notices on at least a monthly basis. If for any reason I am unable to do so, or I do not receive Diamante or Diamante’s Affiliates’ communications, it is my responsibility to contact support@diamante.io and notify Diamante immediately.
4. TERMINATION OF DIAMANTE ACCOUNT
I understand that I may close my Diamante Account at any time. Closing an account will not affect any rights and obligations incurred prior to the date of account closure. I may be required to either cancel or complete all open orders and, in accordance with the provisions of this Agreement, provide transfer instructions of where to transfer any funds or Cryptocurrencies remaining in my account. I understand and agree that I am responsible for any fees, costs, expenses, charges, or obligations (including, but not limited to, attorney and court fees or transfer costs of funds or Cryptocurrencies) associated with the closing of my account. In the event that the cost of closing my account exceeds the value in my account, I will be responsible for reimbursing Diamante.
I understand that Diamante may (a) suspend or terminate my access to the Diamante Services, and (b) deactivate or cancel my Diamante Account (i) as required by a valid subpoena or court order, (ii) if Diamante suspects that I or others are using my Diamante Account in furtherance of illegal activity or are acting in a manner inconsistent with my obligations under this Agreement, (iii) if Diamante suspects, in Diamante’s sole discretion, any such accounts to be in violation of this Agreement or Diamante’s Anti-Money Laundering (“AML”) Program, (iv) my Diamante Account is subject to any pending litigation, investigation, or governmental proceeding, (v) Diamante believes that there is unusual activity in my Diamante Account or that I am using the Diamante Platform, my Login Credentials, or other account information in an unauthorized or inappropriate manner. I will be permitted to transfer Cryptocurrency associated with my Diamante Account for ninety (90) days after Diamante Account deactivation or cancellation unless such transfer is otherwise prohibited (i) under the law(ii) by a valid subpoena or court order or (iii) the coin in the account is not deemed to be fully owned due to ACH returns or other fraudulent action. The firm may choose to take action in the process of termination to reverse the client transactions and mitigate any further harm or risk to the firm. If any transaction is in a pending state at the time my Diamante Account is canceled or suspended, such transaction may be canceled and/or refunded as appropriate. I understand that I may not cancel my Diamante Account if Diamante believes, in Diamante’s sole discretion, that such cancellation is being performed in an effort to evade an investigation or avoid paying any amounts otherwise due to Diamante. Upon cancellation of my Diamante Account, I authorize Diamante to cancel or suspend pending transactions and, after providing electronic notice to me, return Cryptocurrency associated with such transactions to the wallet address that I provide to Diamante. If I fail to do so, I hereby agree that Diamante is permitted to sell any remaining Cryptocurrencies on the open market at the prevailing market price and return the proceeds (less any damages to which Diamante is entitled) to any valid bank account linked to my Diamante Account. In the event that I or Diamante terminates this agreement or my access to the Diamante Services, or my Diamante Account is deactivated or canceled, I understand that I will remain liable for all amounts due under or in connection with this Agreement. In the event that a technical problem causes system outage or Diamante Account errors, Diamante may temporarily suspend access to my Diamante Account until the problem is resolved.
5. STATEMENTS
I agree that it is my responsibility to review statements, and all other information associated with my Diamante Account promptly upon receipt. I agree to receive all confirmations and account statements, as well as all tax-related documents, in electronic format.
6. APP LICENSE AND RELATED TERMS
Subject to the terms of this Agreement, Diamante grants me a limited, non-exclusive, and non-transferable license to (i) download the App from an authorized application store (i.e., Google® Play or Apple® App Store), and install and use the App to purchase or sell Cryptocurrency on Mobile Devices owned or otherwise controlled by me, strictly in accordance with the App’s documentation; and (ii) access and use the Diamante Services made available in or otherwise accessible through the App.
I shall not:
(i) copy the App, except as expressly permitted by this license.
(ii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App;
(iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part thereof;
(iv) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including any copy thereof;
(v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third-party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time; or
(vi) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App.
I acknowledge and agree that the App is provided under license, and not sold, to me. I do not acquire any ownership interest in the App under this Agreement, or any other rights thereto other than to use the App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Diamante and its licensors reserve and shall retain their entire right, title, and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to me in this Agreement.
I acknowledge that when I download, install, or use the App, Diamante may use automatic means (including, for example, cookies and web beacons) to collect information about my Mobile Device and about my use of the App. I also may be required to provide certain information about myself as a condition for downloading, installing, or using the App or certain of its features or functionality. All information Diamante collects through or in connection with the App is subject to Diamante’s Privacy Policy. By downloading, installing, using, and providing information to or through the App, I consent to all actions taken by Diamante with respect to my information in compliance with the Privacy Policy.
Diamante may, from time to time, in its sole discretion, develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. I agree that Diamante has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on my Mobile Device settings, when my Mobile Device is connected to the internet either (i) the App will automatically download and install all available Updates; or (ii) I may receive notice of or be prompted to download and install available Updates. I shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should I fail to do so. I further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement.
I acknowledge and agree that, in order to use certain features and functions of the App, including the ability to purchase and sell Cryptocurrencies, I must have and maintain an active Diamante Account. In addition, I acknowledge and agree that I may not be able to access all or some of the Diamante Services through the App outside of jurisdictions where Diamante is approved to conduct business.
I acknowledge and agree that Diamante may suspend or terminate, at any time and without notice to me, my license to download, install, and use the App, and to access and use Diamante Services through the App.
7. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS
a) Applicable Laws and Regulations. Transactions in my Diamante Account are subject to the applicable laws, regulations, and rules of federal and state governmental and regulatory authorities. In no event will Diamante be obligated to effect any transaction it believes would violate any federal or state law, rule, or regulation, or the rules or regulations of any regulatory or self-regulatory organization. I acknowledge and agree that accessing the Diamante Platform or using the Diamante Services may not be legal by certain persons or in certain countries. If I access the Diamante Platform or use the Diamante Services from outside the United States, I am responsible for compliance with local laws.
b) AML Program. I understand that in furtherance of Diamante’s anti-money laundering obligations and related procedures with respect to certain federal anti-money laundering rules and regulations (Diamante’s “AML Program”,) Diamante may require me to provide Diamante with additional information or require me to undergo a background check prior to being authorized to use the Diamante Platform, or at any point thereafter, in accordance with applicable laws and regulations. I agree, represent, and warrant that all funds in my Diamante Account or funds exchanged or to be exchanged by me in the future through Diamante are not the direct or indirect proceeds of any criminal or fraudulent activity. I understand that I am not allowed to receive funds in my Diamante Account from a sender other than myself. Any funds I receive from a sender other than myself will be considered unauthorized. I understand that Diamante reserves the right to investigate the source of any funds in my Diamante Account and determine, in Diamante’s sole discretion, how to handle their disposition. If following review of any funds in question and the circumstances by which I received them, Diamante determines that I am not the owner of such funds, I understand that Diamante reserves the right to dispose of these funds in accordance with applicable laws and regulations. In addition, pursuant to the economic sanctions programs administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), Diamante is prohibited from providing services or entering into relationships with certain individuals and institutions. In the event that Diamante is required to block funds associated with my Diamante Account in accordance with a sanctions program, or other similar government sanctions programs, I understand that Diamante may: (i) suspend my Diamante Account; (ii) terminate my Diamante Account; (iii) return funds to the destination of their origin or to an account specified by authorities; or (iv) require that I withdraw funds from my Diamante Account within a certain period of time. I agree that Diamante is not responsible for any losses, whether direct or indirect, that I may incur as a result of Diamante’s complying with applicable laws and regulations, the guidance or direction of any regulatory authority or government agency, or any writ of attachment, lien, levy, subpoena, warrant, or other legal order.
8. SYSTEM UNAVAILABILITY
I agree and understand that part or all of the Diamante Platform or the Diamante Service may be periodically unavailable during scheduled maintenance or unscheduled downtime (collectively, “Downtime”). I agree and understand that Diamante is not liable or responsible to me for any inconvenience or Losses to me as a result of Downtime. Following Downtime, when services resume, I understand that the prevailing market prices may differ significantly from the prices prior to such Downtime.
9. RISK DISCLOSURE STATEMENT
I ALSO ACKNOWLEDGE THAT I ALONE AM RESPONSIBLE FOR DETERMINING THE SUITABILITY OF MY CRYPTOCURRENCY CHOICES IN LIGHT OF MY PARTICULAR CIRCUMSTANCES. I UNDERSTAND THAT DIAMANTE ASSUMES NO RESPONSIBILITY FOR SUCH DETERMINATION. As a self-directed holder, I assume full responsibility for each and every transaction in or for my Account and for my own investment strategies and decisions. I understand and agree that Diamante and its affiliates will have no liability whatsoever for the results of my investment strategies, transactions, and decisions.
10. CUSTOMER REPRESENTATIONS AND RESPONSIBILITIES
a) Self-Directed Account. I understand that my Diamante Account is self-directed, I am solely responsible for any and all actions taken with respect to my Diamante Account. For the avoidance of doubt, consistent with Section 3 hereof, I fully understand that it is my responsibility to safeguard my Login Credentials, and that I am responsible for any trade placed through, originating from, or associated with my Diamante Account whether placed by me or another third-party as the result of my failure to safeguard my Login Credentials. I further acknowledge and agree that all orders entered by me or through my Diamante Account are unsolicited and based on my own decisions or the decision of my duly authorized representative or agent. Notwithstanding anything in this Agreement, I agree and understand that Diamante accepts no responsibility whatsoever for, and shall in no circumstances be liable to me in connection with, my decisions. I agree and understand that under no circumstances will Diamante’s use of the Diamante Account be deemed to create a relationship that includes the provision of or tendering of investment advice. I agree that neither Diamante nor any of Diamante’s employees, agents, principals, or representatives (i) provide investment advice in connection with this Diamante Account, (ii) recommend any Cryptocurrencies, transactions, or orders, or (iii) solicit orders. To the extent research materials or similar information are available through the App or the Website, I understand that these materials are intended for informational and educational purposes only and they do not constitute a recommendation to enter into any Cryptocurrency transactions or to engage in any investment strategies.
b) Information Accuracy. I: (i) certify that the information contained in this Agreement, my Diamante Account application, and any other document that I furnish to Diamante in connection with my Diamante Account is complete, true, and correct; (ii) authorize Diamante to contact any individual or firm noted on the documents referred to in subsection (b)(i) of this Section and any other normal sources of debit or credit information; (iii) authorize anyone so contacted to furnish such information to Diamante as Diamante may request; and (iv) agree that this Agreement, the account application, and any other document I furnish in connection with my Diamante Account is Diamante’s property. I shall promptly advise Diamante of any changes to the information in such agreements and documents in writing within ten (10) calendar days. I authorize Diamante to obtain reports and provide information to others concerning my creditworthiness and business conduct. Upon my request, Diamante agrees to provide me a copy of any report so obtained. Diamante may retain this Agreement, the Account application, and all other such documents and their respective records at Diamante’s sole discretion. I understand that Diamante may take steps to verify the accuracy of the information I provide to Diamante in my Diamante Account application or otherwise, including by directly or indirectly making any inquiries Diamante considers necessary to verify my identity or protect against fraud and that Diamante may restrict my access to my Diamante Account or take other action Diamante reasonably deems necessary pending such verification.
I agree to indemnify and hold Diamante and its affiliates harmless from and against any and all loss, liability, cost, judgment, arbitration award, settlement, tax, penalty, action, damage, charge, expense or fee (including attorneys’ fees and costs of collection) of any nature whatsoever, and claims therefor (collectively, “Losses”) arising out of or relating to my failure to provide true and accurate information on my Account Application or to update such information as required. I further represent that no one else has an interest in my Account except me and any other person that I have previously disclosed to Diamante through the Account Application or otherwise in a manner specified by Diamante.
c) Sophisticated Actor. I agree and understand that by maintaining a Diamante Account, I have sufficient knowledge to conduct all activities with respect to the Account. I am responsible for making sure that any activities on the Account effectuated by me are accurate and intentional. Diamante may, in some cases, and at Diamante’s sole discretion, require secondary electronic, verbal, written, or other confirmation before acting if my Diamante Account activity is outside of its normal range of activities.
d) Commercially Reasonable Efforts. I understand that Diamante uses commercially reasonable efforts to provide me with a reliable and secure Diamante Platform. From time to time, interruptions, errors, or other deficiencies in service may occur due to a variety of factors, some of which are outside of Diamante’s control. These factors can contribute to delays, errors in service, or Downtimes. I understand that I may experience difficulties in accessing my Diamante Account, withdrawing funds or Cryptocurrencies, viewing Third-Party Information, and placing and/or canceling orders.
e) Unavailability of Diamante Service in Certain Jurisdictions. I agree and understand that the Diamante Service is not provided to, and may not be used by, any person in any jurisdiction where the provision or use thereof would be contrary to applicable laws and regulations. Diamante is not available in all jurisdictions. I agree to refrain from using the Diamante Service if I begin to reside in a jurisdiction where the Diamante Service would violate any of the laws and regulations of such jurisdiction. I agree that I shall not provide incorrect information about my address and that I have an obligation to promptly inform Diamante when I establish residency in a new jurisdiction.
g) Assistance by Diamante. I understand that when I request assistance from Diamante or Diamante employees regarding the Website or the App, it will be limited to an explanation of the tool’s functionality and, if requested by me, to the entry by Diamante or Diamante and its Affiliates’ employees of variables provided by me, and that such assistance does not constitute investment advice, an opinion with respect to the suitability of any transaction, or solicitation of any orders.
h) No Tax or Legal Advice. I understand and acknowledge that Diamante does not provide tax or legal advice.
i) Discontinuation of Services. I understand and agree that Diamante may discontinue the Diamante Services immediately by providing written notice to me (such written notice to include by mail, email, or any other type of written communication made by Diamante to me through the Diamante Platform or otherwise).
11. RIGHT TO RESTRICT TRADING; RIGHT TO OFFSET; REMEDIES FOR BREACH
a) Trading Restriction. I understand that Diamante may, in Diamante’s discretion and at any time, prohibit or restrict the trading and/or any other activities with respect to the Cryptocurrencies in my Diamante Account.
b) Remedies for Breach. I understand and agree that if Diamante determines, in Diamante’s sole discretion, that I have committed a breach or default under this Agreement, Diamante’s AML Program, or any other internal policies or procedures (such breach or default, a “Violation”), Diamante shall have all rights and remedies available to a secured creditor under all applicable laws and in addition to the rights and remedies provided herein. I understand and agree that, in the event of one or more Violations, Diamante may at any time, at Diamante’s sole discretion and without prior notice to me: (i) prohibit or restrict my access to the use of the App or the Website or related services and my ability to trade, (ii) refuse to accept any of my transactions, (iii) refuse to execute any of my transactions, (iv) terminate my Diamante Account, and (v) debit from my Diamante Account any direct damages suffered by Diamante as a result of the Violation. I further acknowledge and agree that if Diamante determines, in Diamante’s sole discretion, that I have colluded, coordinated, and/or collaborated with any other Diamante user to commit a Violation, I and that user will be jointly and severally liable for the whole value of any damages to which Diamante is entitled under this Agreement and any such amounts may be debited, in Diamante’s sole discretion, from my Diamante Account or such other user’s account.
12. CRYPTOCURRENCY NETWORKS AND FORKS
I understand that Diamante does not own or control the software protocols underlying the Cryptocurrencies and associated Cryptocurrency networks and that Diamante makes no guarantees regarding the security, functionality, or availability of such protocols, Cryptocurrencies, or Cryptocurrency networks. In general, the underlying protocols are open source and anyone can use, copy, modify, and distribute them. I further understand that such underlying software protocols are subject to sudden changes in operating rules (“Forks”) that may result in more than one version (each, a “Forked Network,”) and that such Forks may materially affect the value, function, or name of the Cryptocurrencies I hold. In the event of a Fork, I agree and understand that Diamante may temporarily suspend the Diamante Services without advance notice to me while Diamante determines, in Diamante’s sole discretion which Forked Networks to support. I further agree and understand that Diamante may determine, in Diamante’s sole discretion, not to support a Forked Network and that I have no right, claim, or other privilege to any Cryptocurrencies arising from such unsupported Forked Network. With respect to such Cryptocurrencies, I understand that Diamante may, in Diamante’s sole discretion, determine the approach to such Cryptocurrency, which approach may include abandoning or otherwise electing not to support such Cryptocurrency as part of the Diamante Services. I further agree and understand that Diamante may not support Forked Networks and that the Cryptocurrencies of Forked Networks may not be made available to me. I understand that the supply of Cryptocurrencies available to Diamante to make available as part of the Diamante Services and Diamante’s ability to deliver Cryptocurrencies resulting from a forked network may depend on third-party providers that are outside of Diamante’s control. I further understand and agree that Diamante shall not be liable for (i) the software protocols underlying the Cryptocurrencies and associated Cryptocurrency networks, (ii) any change in the value of any Cryptocurrency (whether associated with a Forked Network or otherwise), or (iii) any decision regarding supporting or not supporting any Cryptocurrency, including a Cryptocurrency associated with a Forked Network.
13. WITHDRAWALS
I understand and agree that, in order to send Cryptocurrencies in my Diamante Account to an external wallet (such process, a “Withdrawal”), I represent that I have responsibility for sending to the destination wallet to which I send Cryptocurrencies in connection with such a Withdrawal. I further understand and agree that Diamante may delay any requested Withdrawals if Diamante perceives a risk of fraud or illegal activity or if the Withdrawal otherwise violates Diamante’s AML Policy. I understand that, once initiated on the network associated with the Cryptocurrency subject to the Withdrawal, Withdrawals will typically be processed at the speed of such network, but that in certain situations, Withdrawals may be delayed in connection with any latency, congestion, disruption, or other delay of such network. I understand that Diamante cannot reverse a Withdrawal that has been broadcast to a Cryptocurrency network. I also understand that Diamante reserves the right to cancel any pending Withdrawal as required by law or in response to a subpoena, court order, or other binding government order.
When you withdraw all or any of your cryptocurrency, we will not be liable for any loss that results from inaccurate, incomplete, or misleading details that you may provide for such transfer. If the account you specify is one to which we are unable to process transfers, we will have no liability for any failure or delay in processing your requested withdrawal.
14. TELEPHONE CONVERSATIONS AND ELECTRONIC COMMUNICATIONS
I understand and agree that Diamante may record and monitor any telephone or electronic communications with me. Unless otherwise agreed in writing in advance, Diamante does not consent to the recording of telephone conversations by any third-party or me. I acknowledge and understand that not all telephone or electronic communications are recorded by Diamante, and Diamante does not guarantee that recordings of any particular telephone or electronic communications will be retained or capable of being retrieved. I also acknowledge and agree that Diamante maintains and retains records of all information, activity, and communications relating to my Diamante Account and the use thereof.
15. ORAL AUTHORIZATION
I agree that Diamante shall be entitled to act upon any oral instructions given by me so long as Diamante reasonably believes such instruction was actually given by me or my authorized agent.
16. ELECTRONIC DELIVERY OF TRADE AND ACCOUNT INFORMATION
All communications, including account statements, Trade Confirmations, notices, disclosures, regulatory communications, and other information, documents, data, and records regarding my Diamante Account, or an alert that such communication has been posted to the secure section of the Website or the App, and is available for viewing, may be sent to me at the mailing address for my Diamante Account or the e-mail address that I have given to Diamante in my Diamante Account application or at such other address as I may hereafter give Diamante in writing or by e-mail at least ten (10) calendar days prior to delivery, and all communications so sent, whether in writing or otherwise, shall be deemed given to me personally, whether actually received or not.
17. EFFECT OF ATTACHMENT OR SEQUESTRATION OF ACCOUNT
Diamante shall not be liable for refusing to obey any orders given by or for me with respect to my Diamante Account that has been subject to an attachment or sequestration in any legal proceeding against me, and Diamante shall be under no obligation to contest the validity of any such attachment or sequestration.
18. TAX REPORTING; TAX WITHHOLDING
The proceeds of certain transactions may be reported to the Internal Revenue Service in accordance with applicable law. Under penalties of perjury, I certify that the taxpayer identification number that I have provided or will provide to Diamante or any of Diamante’s Affiliates in connection with an account opening (including any taxpayer identification number on any Form W-9 that I have provided or will provide) is my correct taxpayer identification number. I certify, if applicable, that I am not subject to backup withholding and I am a United States Person (including a U.S. resident alien) as such term is defined in section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (“U.S. Person”). If a correct Taxpayer Identification Number is not provided to Diamante, I understand I may be subject to backup withholding tax at the appropriate rate on all dividends, interest, and gross proceeds paid to me. Backup withholding taxes are sent to the IRS and cannot be refunded by Diamante or any of its Affiliates. I further understand that if I waive tax withholding and fail to pay sufficient estimated taxes to the IRS, I may be subject to tax penalties.
19. QUESTIONS, FEEDBACK, AND COMPLAINTS
If you have any questions, would like to provide feedback, or would like more information regarding the Diamante Service, please feel free to email Diamante at support@diamante.io.
If you have a complaint or dispute with Diamante in connection with the Diamante Service (a “Complaint”), you agree to contact Diamante through Diamante’s support team at support@diamante.io in order to attempt to resolve any such Complaint amicably. When submitting a Complaint, please provide us with your name, address, and any other information that we may need in order to identify you and your Diamante Account. Diamante will acknowledge receipt of your Complaint after receipt. Upon receipt of a Complaint, a Diamante support member will review the Complaint based upon the information provided in such Complaint and, if necessary, reach out to you via e-mail in order to attempt to resolve such Complaint.
Communication Address:
Diamante Financial Technologies
Office 202, Premise No: 1909081141, P-2264, E10
Al Danah, Abu Dhabi, United Arab Emirates
20. ARBITRATION
Diamante and I agree to attempt informal resolution of any Complaint arising in connection with this Agreement, my Diamante Account, the Diamante Platform, or the Diamante Services prior to any demand for adjudication. Diamante and I further agree that if we cannot solve such Complaint informally and consistent with the procedures outlined in this Agreement, any such dispute shall be finally settled in binding arbitration, on an individual basis, in accordance with the American Arbitration Association’s rules for arbitration of consumer-related disputes, and Diamante and I hereby expressly waive trial by jury and right to participate in a class-action lawsuit or class-wide arbitration. The arbitration will occur in Delaware and will be conducted confidentially by a single, neutral arbitrator. I agree to bear my own attorney’s fees, costs, and expenses. The arbitrator may award any relief that a court of competent jurisdiction could award, including attorneys’ fees when authorized by law, and the arbitral decision may be enforced in any court. Any dispute between the parties will be governed by this Agreement and the laws of the State of Delaware and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Diamante and I further agree that the state or federal courts in Delaware have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. In the event the prohibition on class arbitration or any other provision of this Section is deemed invalid or unenforceable, then I agree and understand that the remaining portions of the arbitration provisions in this Section will remain in full force and effect.
21. API
I agree to access my Diamante Account only through the Platform. Any other use is not authorized, and I agree to refrain from using any application programming interface belonging to Diamante or any of its Affiliates.
22. ELECTRONIC SIGNATURES; MODIFICATIONS TO AGREEMENT; CONSENT TO ELECTRONIC DELIVERY
I agree to transact business with Diamante electronically. By electronically signing an application for a Diamante Account, I acknowledge and agree that such electronic signature is valid evidence of my consent to be legally bound by this Agreement and such subsequent terms as may govern the use of the Diamante Services. The use of an electronic version of any document fully satisfies any requirement that the document be provided to me in writing. I accept notice by electronic means as reasonable and proper notice, for the purpose of any and all laws, rules, and regulations. I acknowledge and agree that Diamante may modify this Agreement from time to time and I agree to consult the Website from time to time for the most up-to-date Agreement. The electronically stored copy of this Agreement is considered to be the true, complete, valid, authentic, and enforceable record of the Agreement, admissible in judicial or administrative proceedings to the same extent as if the documents and records were originally generated and maintained in printed form. I agree to not contest the admissibility or enforceability of Diamante’s electronically stored copy of the Agreement.
a) Consent to Electronic Delivery of Documents. By agreeing to electronic delivery, I am giving my informed consent to electronic delivery of all Account Documents, as defined below, other than those I have specifically requested to be delivered in paper form. “Account Documents” include notices, disclosures, current and future account statements, regulatory communications (such as privacy notices), trade confirmations, and any other information, documents, data, and records regarding my Diamante Account and the services (including amendments to this Agreement) delivered or provided to me by Diamante and any other parties. I agree that I can download, save, or print any Account Documents I receive via electronic delivery for my records.
b) Electronic Delivery System. I acknowledge that Diamante’s only methods of communication with me include (A) posting information on the Website, (B) providing information via the App, (C) sending email(s) to my email address of record, and, to the extent required by law (D) SMS and Push notifications and (E) providing me with notice(s) that will direct me to the App or the Website where I can read and print such information. Unless otherwise required by law, Diamante reserves the right to post Account Documents on the Website without providing notice to me. Further, Diamante reserves the right to send Account Documents to my postal or email address of record, or via the App. I agree that all Account Documents provided to me in any of the foregoing manners is considered delivered to me personally when sent or posted by or on behalf of Diamante, whether I receive it or not. All e-mail notifications regarding Account Documents will be sent to my e-mail address of record. I understand that e-mail messages may fail to transmit promptly or properly, including being delivered to SPAM folders. I further understand that it is my sole responsibility to ensure that any emails from Diamante or Diamante’s Affiliates are not marked as SPAM. Regardless of whether or not I receive an e-mail notification, I agree to check the Website regularly to avoid missing any information, including time-sensitive or otherwise important communication. Additionally, I acknowledge that the Internet is not a secure network and agree that I will not send any confidential information, including Diamante Account numbers or passwords, in any unencrypted e-mails. I also understand that communications transmitted over the Internet may be accessed by unauthorized or unintended third-parties and I agree to hold Diamante, Diamante’s Affiliates, and Diamante’s and Diamante’s Affiliates’ respective officers and employees harmless for any such access regardless of the cause. I agree to promptly and carefully review all Account Documents when they are delivered and notify Diamante in writing immediately after delivery (but in no event later than 24 hours after delivery) if I object to the information provided. If I fail to object in writing immediately (but in no event later than 24 hours after delivery) after delivery, Diamante is entitled to treat such information as accurate and conclusive.
c) Costs. Potential costs associated with electronic delivery of Account Documents may include charges from Internet access providers and telephone companies, and I agree to bear these costs. Diamante will not charge me additional online access fees for receiving electronic delivery of Account Documents.
d) Revocation of Consent. Subject to the terms of this Agreement, I may revoke or restrict my consent to electronic delivery of Account Documents at any time by notifying Diamante in writing of my intention to do so. I also understand that I have the right to request paper delivery of any Account Document that the law requires Diamante to provide me in paper form. I understand that if I revoke or restrict my consent to electronic delivery of Account Documents or request paper delivery of same, Diamante, in its sole discretion, may limit, restrict, or terminate my Diamante Account, as determined by Diamante in its sole discretion. I understand that neither my revocation nor restriction of consent, my request for paper delivery, nor Diamante’s delivery of paper copies of Account Documents will affect the legal effectiveness or validity of any electronic communication provided while my consent was in effect.
e) Duration of Consent. My consent to receive electronic delivery of Account Documents will be effective immediately and will remain in effect unless and until either I or Diamante revoke it. I understand that it may take up to three (3) business days to process a revocation of consent to electronic delivery and that I may receive electronic notifications until such consent is processed.
f) Hardware and Software Requirements. I understand that in order to receive electronic deliveries, I must have access to the Internet, a valid e-mail address, and the ability to download such applications as Diamante may specify and to which I have access. I also understand that if I wish to download, print, or save any information I wish to retain, I must have access to a printer or other device in order to do so.
g) Consent and Representations. I hereby agree that I have carefully read the above information regarding informed consent to electronic delivery and fully understand the implications thereof. Additionally, I hereby agree to all conditions outlined above with respect to electronic delivery of any Account Document. I will maintain a valid e-mail address and continue to have access to the Internet. If my e-mail address changes, I agree to immediately notify Diamante of my new e-mail address in writing.
23. LEGAL PROCESS
I acknowledge and agree that Diamante, service providers, their respective officers, directors, agents, employees, and representatives (collectively, the “Diamante Representative”), may comply with any writ of attachment, execution, garnishment, tax levy, restraining order, subpoena, warrant or other legal process, which any of such Diamante Representative reasonably and in good faith believe to be valid. Diamante or any Diamante Representative may, but are not required to, notify me of such process by electronic communication. Diamante or any Diamante Representative may charge me for associated costs, in addition to any legal process fees. I agree to indemnify, defend, and hold all of the Diamante Representatives harmless from all actions, claims, liabilities, losses, costs, attorney’s fees, or damages associated with compliance with any process that any Diamante Representative reasonably believes in good faith to be valid. I further agree that Diamante and any Diamante Representative may honor any legal process, regardless of the method or location of service.
24. THIRD-PARTY INFORMATION
An information provider is any company or person who directly or indirectly provides Diamante with information (“Information Provider”). Such information includes Cryptocurrency market data, quotations from Counterparties, and all information that derives from any such information (“Third-Party Information”). I understand that Diamante does not guarantee that the Third-Party Information provided on the Diamante Platform is accurate, reliable, complete, timely, uninterrupted, error-free, or in the correct order. I agree that my use of the Third-Party Information is at my own risk. I understand and acknowledge that each Information Provider has a proprietary interest in the Third-Party Information that belongs to it.
I understand and agree that I may use this Third-Party Information only for my own benefit. I may not reproduce, sell, distribute, circulate, create derivative works from, store, commercially exploit in any way, or provide Third-Party Information to any other person or entity without Diamante’s written consent or the consent of the Information Provider, if required. I shall not hold Diamante or any Information Provider liable in any way for (a) any inaccuracy, error or delay in, or omission of, (i) the Third-Party Information or (ii) the transmission or delivery of the Third-Party Information, or (b) any loss or damage arising from or occasioned by (i) any such inaccuracy, error, delay or omission, (ii) non-performance or (iii) interruption in any such Third-Party Information, due either to any negligent act or omission by Diamante or any Information Provider, to any “force majeure” (e.g., flood, extraordinary weather conditions, earthquake or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications or power failure, equipment or software malfunction) or to any other cause beyond the reasonable control of Diamante or any Information Provider. I understand and acknowledge that, at any time, any and all Information Providers may discontinue disseminating any category of Third-Party Information, may change or eliminate any transmission method, and may change transmission speeds or other characteristics. The Information Providers and/or Diamante shall not be liable for any resulting liability, loss or damages that may arise therefrom. NEITHER I NOR MY AGENTS SHALL HOLD DIAMANTE, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS OR EMPLOYEES, OR ANY INFORMATION PROVIDER LIABLE IN ANY WAY FOR (1) ANY INACCURACY, ERROR, OR DELAY IN, OR OMISSION FROM, I) ANY THIRD-PARTY INFORMATION (AS DEFINED IN THIS AGREEMENT) OR II) THE TRANSMISSION OR DELIVERY OF ANY SUCH THIRD-PARTY INFORMATION, OR (2) ANY LOSS (AS DEFINED IN THIS AGREEMENT) OR DAMAGE ARISING FROM OR OCCASIONED BY I) ANY SUCH INACCURACY, ERROR, DELAY, OR OMISSION, II) NON-PERFORMANCE OR III) INTERRUPTION IN ANY SUCH THIRD-PARTY INFORMATION, WHETHER DUE TO ANY NEGLIGENT ACT OR OMISSION BY ANY DISSEMINATING PARTY, OR TO ANY “FORCE MAJEURE” (E.G., FLOOD, EXTRAORDINARY WEATHER CONDITIONS, EARTHQUAKE OR OTHER ACT OF GOD, FIRE, WAR, INSURRECTION, RIOT, LABOR DISPUTE, ACCIDENT, ACTION OF GOVERNMENT, OR COMMUNICATIONS OR POWER FAILURE, EQUIPMENT OR SOFTWARE MALFUNCTION) OR ANY OTHER CAUSE BEYOND THE REASONABLE CONTROL OF DIAMANTE, ANY OF ITS AFFILIATES, OR THE INFORMATION PROVIDERS.
25. LIMITED LIABILITY; INDEMNIFICATION
Except as otherwise provided by law, I understand and agree that Diamante, Diamante’s Affiliates and their respective partners, managing directors, officers, directors, employees, or agents (each such entity, an “Indemnified Party”) shall not be liable for any expenses, losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, fines, and taxes of any kind or nature (including legal expenses and attorneys’ fees) (whether known or unknown, absolute or contingent, liquidated or unliquidated, direct or indirect, due or to become due, accrued or not accrued, asserted or unasserted, related or not related to a third-party claim, or otherwise) (collectively, “Losses”) by or with respect to any matters pertaining to my Diamante Account, my use of the App, the Website, the Diamante Services, and other services provided by the Indemnified Parties under this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely from Diamante or its Affiliates gross negligence or intentional misconduct; further provided, that Diamante or its Affiliates shall not be liable for any Losses that have resulted from the gross negligence or intentional misconduct of any related party or service provider with whom I contract with independent of my relationship with the Diamante Platform. I also understand and agree that Indemnified Parties will have no responsibility or liability to me in connection with the performance or non-performance by any Counterparty or other third-party (including banks) or any of their respective agents or affiliates, of its or their obligations relative to my Diamante Account. I further understand and agree that Indemnified Parties will have no liability, to me or to third-parties, or responsibility whatsoever for: (i) any Losses resulting from a cause over which Indemnified Parties do not have direct control, including the failure of mechanical equipment, unauthorized access, theft, operator errors, government actions or restrictions, Force Majeure (as defined in this Agreement), or suspension of trading; and (ii) any special, indirect, incidental, consequential, punitive, or exemplary damages (including lost profits, trading losses and damages) that I may incur in connection with my Diamante Account, my use of the App, the Website, the Diamante Services, and other services provided by Indemnified Parties under this Agreement. Further, if I authorize or allow third-parties to gain access to Diamante’s services, including my Diamante Account, I will indemnify, defend and hold harmless Diamante, Diamante’s Affiliates, and its and their respective officers and employees against any Losses arising out of claims or suits by such third-parties based upon or relating to such access and use. Diamante does not warrant against loss of use or any direct, indirect or consequential damages or Losses to me caused by my assent, expressed or implied, to a third-party accessing my Diamante Account or information, including access provided through any other third-party systems or sites. I understand and agree that Diamante and its affiliates will not be liable to me or to third-parties, or have any responsibility whatsoever, for: (a) any Losses arising out of or relating to a cause over which Diamante or its affiliates do not have direct control, including the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorized access, theft, operator errors, government restrictions, force majeure (i.e., earthquake, flood, severe or extraordinary weather conditions, natural disasters or other act of God, fire, acts of war, terrorist attacks, insurrection, riot, strikes, labor disputes or similar problems, accident, action of government, communications, system or power failures and equipment or software malfunction), exchange or market rulings or suspension of trading; or (b) any special, indirect, incidental, consequential, punitive or exemplary damages (including lost profits, trading losses and damages) that I may incur in connection with my use of the Service provided by Diamante under this Agreement. I ACCEPT ALL RISKS ASSOCIATED WITH THE USE OF DIAMANTE TO CONDUCT TRANSACTIONS, INCLUDING, BUT NOT LIMITED TO, IN CONNECTION WITH THE FAILURE OF HARDWARE, SOFTWARE, AND INTERNET CONNECTIONS.
a) Indemnification. To the full extent permitted by applicable law, I hereby agree to indemnify each Indemnified Party against any action, liability, cost, claim, loss, damage, proceeding or expense suffered or incurred, if direct or not directly arising from my use of the Diamante Platform and operation of my Diamante Account, or from my violation of this Agreement. If I am a California resident, I hereby waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” If I am a resident of another jurisdiction, I hereby waive any comparable statute or doctrine.
b) Legal Costs. I agree to indemnify Diamante for actual, reasonable legal costs and expenses directly related to my Diamante Account or any related account that are a result of any regulatory inquiry, legal action, litigation, dispute, or investigation that arise or relate to me or my use of my Diamante Account or the Diamante Services. I understand that, as a result, Diamante will be entitled to charge my Diamante Account for such costs without notice, including legal and enforcement related costs that Diamante incurs. Any withholding will last for a period of time that is reasonably necessary to resolve any regulatory or legal issue at hand, and Diamante may place any amounts garnered from me in a separate account, and will pay to me the remaining balance after any noted issue has been resolved. Furthermore, I agree that where such actions relate to a specific asset in my Diamante Account, that asset may not be transferred out of My Diamante Account until the matter is resolved.
c) No warranties. I understand and agree that my use of my Diamante Account, the Diamante Service, or any other service provided by Diamante or any of its Affiliates is at my sole risk. The Diamante Service is provided on an “as is,” “as available” basis without warranties of any kind, either express or implied, including those of merchantability and fitness for a particular purpose, other than those warranties which are implied by and incapable of exclusion, restriction or modification under the laws applicable to this Agreement.
26. MISCELLANEOUS PROVISIONS
The following provisions shall also govern this Agreement:
a) Interpretation. The heading of each provision hereof is for descriptive purposes only and shall not be (1) deemed to modify or qualify any of the rights or obligations set forth herein or (2) used to construe or interpret any of the provisions hereunder. When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The word “or,” when used in this Agreement, has the inclusive meaning represented by the phrase “and/or.” Unless the context of this Agreement otherwise requires: (i) words using the singular or plural number also include the plural or singular number, respectively; and (ii) the terms “hereof,” “herein,” “hereunder” and derivative or similar words refer to this entire Agreement. References to any law shall be deemed to refer to such law as amended from time to time and to any rules or regulations promulgated thereunder.
b) Binding Effect; Assignment. This Agreement shall bind my heirs, assigns, executors, successors, conservators, and administrators. I may not assign this Agreement or any rights or obligations under this Agreement without first obtaining Diamante’s prior written consent. Diamante may assign, sell or transfer my Diamante Account and this Agreement, or any portion thereof, at any time, without my prior consent.
c) Severability. If any provisions or conditions of this Agreement are or become inconsistent with any present or future law, rule or regulation of any applicable government, regulatory, or self-regulatory agency or body, or are deemed invalid or unenforceable by any court of competent jurisdiction, such provisions shall be deemed rescinded or modified, to the extent permitted by applicable law, to make this Agreement in compliance with such law, rule or regulation, or to be valid and enforceable, but in all other respects, this Agreement shall continue in full force and effect.
d) Website Postings. I agree and understand that Diamante or any of its Affiliates may post other specific agreements, disclosures, policies, procedures, terms and conditions that apply to my use of the App, the Website or my Diamante Account on the Website (“Website Postings”). I understand that it is my continuing obligation to understand the terms of the Website Postings, and I agree to be bound by the Web Postings as are in effect at the time of my use.
e) Entirety of Agreement. This Agreement, any attachments hereto, other agreements and policies referred to in this Agreement (including the Website Postings), and the terms and conditions contained in my Diamante Account statements and confirmations, contain the entire agreement between Diamante and myself and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between Diamante and myself, provided, however, that any and all other agreements between Diamante and me, not inconsistent with this Agreement, will remain in full force and effect.
f) Amendment. Diamante may at any time amend this Agreement without prior notice to me. The current version of the Agreement will be posted on the Website and my continued Account activity after such amendment constitutes my agreement to be bound by all then-in-effect amendments to the Agreement, regardless of whether I have actually reviewed them. Continued use of the App, the Website or any other Diamante services after such posting will constitute my acknowledgment and acceptance of such amendment. I agree to regularly consult the Website for up-to-date information about Diamante services and any modifications to this Agreement. Diamante is not bound by any verbal statements that seek to amend the Agreement.
g) Termination. Diamante may terminate this Agreement, or close, deactivate or block access to my Diamante Account at any time in Diamante’s sole discretion. I will remain liable to Diamante for all obligations incurred in my Diamante Account, pursuant to this Agreement, or otherwise, whether arising before or after termination. I may terminate this Agreement after paying any obligations owed upon written notice.
h) No Waiver; Cumulative Nature of Rights and Remedies; Non-Waiver of Right I understand that Diamante’s failure to insist at any time upon strict compliance with any term contained in this Agreement, or any delay or failure on Diamante’s part to exercise any power or right given to Diamante in this Agreement, or a continued course of such conduct on Diamante’s part, shall at no time operate as a waiver of such power or right, nor shall any single or partial exercise preclude any other further exercise. All rights and remedies given to Diamante in this Agreement are cumulative and not exclusive of any other rights or remedies to which Diamante is entitled. This Agreement shall not be construed to waive rights that cannot be waived under applicable laws and regulations.
i) Customers. The products and services described on the Website are offered only in jurisdictions where they may be legally offered. Neither the Website nor the App shall be considered a solicitation for or offering of any investment product or service to any person in any jurisdiction where such solicitation or offering would be illegal. I understand that Diamante, at Diamante’s sole discretion may accept unsolicited accounts from non-U.S. residents, depending on the country of residence and other factors. I understand that Diamante is based in the United States and that Diamante accepts only U.S. currency in Diamante customer accounts.
j) Relationship of the Parties. I agree and understand that nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.
k) No Third-Party Beneficiaries. Except for the indemnity and exculpation provisions herein, nothing expressed in, mentioned in, or implied from this Agreement is intended or shall be construed to give any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this Agreement to enforce any of its terms which might otherwise be interpreted to confer such rights to such persons, and this Agreement and all representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the exclusive benefit of the parties.
l) Survival. All provisions of this Agreement that by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, sections pertaining to suspension or termination, debts owed, general use of the Diamante Service, disputes with Diamante, and general provisions, shall survive the termination or expiration of this Agreement.
m) Written Notice. I agree that if Diamante sends an email to the email address on record for my Diamante Account, this constitutes “written notice” from Diamante to Me. For all notices made by email, the date of receipt is considered to be the date of transmission.
n) Governing Law. The laws of the State of Delaware (regardless of the choice of law rules thereof) shall govern this Agreement and all transactions made in My Diamante Account.
o) ACH Authorization. I authorize Diamante, at its discretion and without further prior notice, to utilize an electronic check process or Automated Clearing House (“ACH”) facility to draft funds in the amount of any checks payable to Diamante, its agents or assigns. Money deposited via ACH is normally not available for five (5) to ten (10) business days. I understand that for ACH transfers to be established, the name on my Diamante Account must match my bank account. To send and receive ACHs, my bank must be a member of the ACH system. For ACH transactions, I hereby grant Diamante limited power of attorney to effectuate such transactions. I understand that if I decide to rescind an ACH transfer, or if an ACH transaction is returned to my bank for any reason, I hereby direct and grant Diamante power of attorney to redeem any Cryptocurrency purchases necessary to fulfill and make such rescission regardless of whether I incur any loss. Diamante may also choose to sever the client relationship and return prior deposits if warranted to protect the firm from risk or potential fraud. An ACH bank reversal may occur when (1) there are insufficient funds in my bank account, (2) there is a duplicate transaction, (3) the transaction is denied, or (4) the type of account is incorrect 5) or any of the return reasons as noted in ACH Return Codes R01 – R33. I acknowledge that in the event of an ACH bank reversal, I might incur a fee.
