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Last Updated: April 19th, 2023
Welcome to the User Terms of Service for Ember Fund Inc. and any associated websites, software, mobile applications, and any services provided by Ember Fund Inc. (collectively referred to as the “Platform”). This is an agreement (“Agreement”) between Ember Fund Inc. (“Ember Fund"), the owner and operator of the Platform and You (“You”, “Your” or “User(s)”), a User of the Platform.
PLEASE BE AWARE THAT THERE ARE ARBITRATION, PAGA, AND CLASS ACTION PROVISIONS THAT MAY AFFECT Your RIGHTS.
Throughout this Agreement, the words “Ember Fund,” “us,” “we,” and “our,” refer to our company, Ember Fund Inc., as is appropriate in the context of the use of the words.
Portions of the Platform may require you to create a login or sign-up for an account. you must fully complete the registration process by providing us with your current, complete, truthful, and accurate information as prompted by the applicable registration form. Where a User creates an account, we may ask you to provide identification so that we may verify your identity. Where required, Ember Fund may also assign you a username and password. You are entirely responsible for maintaining the confidentiality of your password and account and for any and all activities that occur under your account. You agree to notify Ember Fund immediately of any unauthorized use of your account or any other breach of security. Ember Fund will not be liable for any losses you incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Ember Fund or another party due to someone else using your account or password. You may not use anyone else's account at any time, without the permission of the account holder. Please keep all passwords and login information safe and secure, you are solely responsible for maintaining the safety and security of your passwords and login information. PLEASE BE AWARE THAT IF YOU ARE USING A NON-CUSTODIAL DIGITAL WALLET (DEFINED BELOW) OR A HYBRID WALLET (DEFINED BELOW) AND YOU LOSE YOUR PASSWORD OR LOGIN INFORMATION EMBER FUND CANNOT ASSIST YOU IN RECOVERING SUCH LOST PASSWORDS AS WE HAVE NO ABILITY TO ACCESS YOUR PRIVATE KEYS. Companies may register via the Platform but may only have one User account. If you are registering on behalf of your company, you represent and warrant that you are authorized by your company to create an account on your company’s behalf and you represent and warrant that you are authorized by your company to incur financial obligations and enter into legally binding agreements on behalf of your company. Ember Fund has the sole discretion in granting or denying any accounts. In order to comply with United States’ federal and state law requirements, we may conduct a background check or require you to verify the personal and financial information submitted by you. By creating an account you expressly authorize us to conduct such background check and you authorize us to verify and share any information provided by you with third parties that we may hire or use for such verifications.
As a condition to accessing or using the Platform, You represent, warrant, and covenant to Ember Fund the following:
*You are not a Restricted Person, “Restricted Person” means a person or entity that is a citizen of, resident of, operating out of, registered in, or located within a Restricted Territory (defined below);
*You are not a resident, national, or agent of Antigua and Barbuda, Algeria, Bangladesh, Bolivia, Belarus, Burundi, Burma (Myanmar), Cote D'Ivoire (Ivory Coast), Crimea and Sevastopol, Cuba, Democratic Republic of Congo, Ecuador, Iran, Liberia, Libya, Magnitsky, Mali, Morocco, North Korea, the Russian Federation, Somalia, Sudan, Syria, Venezuela, Yemen, Zimbabwe or any other country to which the United States embargoes goods or imposes similar sanctions (collectively, “Restricted Territories” or singularly a “Restricted Territory”);
*You are not a member of any sanctions list or equivalent maintained by the United States government (collectively, “Sanctions Lists Persons”);
*You do not intend to transact with any Restricted Person or Sanctions List Person;
*You only will transfer legally-obtained Digital Assets (defined below) that belong to You (or You are legally authorized to use), when using, transacting, or connecting to the Platform;
*You shall maintain the security and confidentiality of Your private keys associated with any Blockchain Technology (defined below) address, passwords, and API keys;
*Your access to the Platform is not (a) prohibited by and does not otherwise violate or assist You to violate any domestic or foreign law, rule, statute, regulation, by-law, order, protocol, code, decree, or another directive, requirement, or guideline, published or in force that applies to or is otherwise intended to govern or regulate any person, property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any domestic or foreign federal, provincial or state, municipal, local or other governmental, regulatory, judicial or administrative authority having jurisdiction over Ember Fund, you, the Platform, or as otherwise duly enacted, enforceable by law, the common law or equity (collectively, “Applicable Laws”); and (b) contributing to or facilitating any illegal activity;
*You will obey all Applicable Laws in connection with using the Platform, and You will not use the Platform if any Applicable Laws prohibit You from doing so;
*You understand the inherent risks associated with Blockchain Technology and the Platform, which may result in the loss of some or all of Your Digital Assets;
*You have sufficient knowledge, market sophistication, professional advice, and experience to make Your evaluation of the merits and risks of any transaction conducted in connection with the Platform or any Digital Asset;
*You accept all consequences of using the Platform, including the risk that you may lose access to your Digital Assets indefinitely;
*You will not use the Platform or any associated Digital Assets for fraudulent purposes including but not limited to investment schemes, Ponzi schemes, pyramid schemes, get rich quick, or other misleading purposes;
*You are solely responsible for evaluating and understanding any risks related to any transactions involving the Platform or your Digital Assets including an understanding of how Digital Assets interact with Blockchain Technology; and
*You do not, and will not, use a virtual private network software or any other privacy or anonymization tools or techniques to circumvent, or attempt to circumvent, any restrictions that apply to the Platform.
Users of the Platform must be at a minimum 18 years of age.
After creating an account we may grant You access to the Platform as permitted by us and at our discretion. Where You download any portions of our Platform we grant You a limited, non-exclusive, fully revocable, non-transferable, and non-assignable license to download and use the Platform in accordance with this Agreement. Your access is limited to Yourself and is personal to You, You may not transfer or assign Your access to any third parties. All rights not explicitly granted are reserved for Ember Fund. If You breach any of these access provisions or at our discretion, Your access to use our Platform may be suspended or terminated. Additionally, we may revoke Your access to our Platform if we believe that Your actions may harm us, our business interests, or any third party rights. Failure by us to revoke Your access does not act as a waiver of Your conduct. Nothing in this Agreement obligates us to provide You any access to the Platform or any of our associated services.
The Ember Fund Platform may allow you to send, request, receive, and store digital assets (“Digital Asset(s)”) including Portfolios (defined below) via your own digital wallet (“Digital Wallet”). All Digital Wallets created or used, except as otherwise stated in this Agreement, are non-custodial, meaning that you control all private and public keys associated with the Digital Wallet and Ember Fund never has control or possession of your Digital Wallet to facilitate any transactions made. Use of the Platform, in particular for transactions involving Digital Assets, are highly volatile, experimental, and may carry financial risk. All transaction decisions are made solely by you. We accept no responsibility whatsoever for, and will in no circumstances be liable to you in connection with, your use of the Platform for performing Digital Asset transactions using your Digital Wallet. Ember Fund reserves the right to refuse to process or to cancel any pending digital transaction as required by law, at our discretion, in response to a subpoena, court order, or other binding government order, or to enforce transaction limits. Please be aware that once a transaction is initiated via your Digital Wallet, Ember Fund may not reverse such transaction, your Digital Wallet is solely controlled by you and we cannot access or control your Digital Wallet in any manner, you are solely liable for maintaining access to your Digital Wallet. For any transactions initiated using the Platform, Ember Fund may take a transaction fee, whether or not such transaction is successful. Under no circumstances should you attempt to use your own Digital Wallet to store or transact any non-supported Digital Assets. PLEASE BE AWARE THAT ANY NON-SUPPORTED DIGITAL ASSET MAY BE LOST IF YOU ATTEMPT TO STORE SUCH DIGITAL ASSET IN YOUR DIGITAL WALLET. EMBER FUND ASSUMES NO RESPONSIBILITY OR LIABILITY IN CONNECTION WITH ANY ATTEMPT TO USE OR STORE ANY DIGITAL ASSETS AND YOU RELEASE EMBER FUND FROM ANY LIABILITY AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY TRANSACTIONS REGARDING YOUR DIGITAL WALLET.
You may not use the Platform to engage in the following categories of activity set forth below or any activities that we determine in our sole discretion may harm us or a third party (“Prohibited Uses”). The Prohibited Uses include but are not limited to:
* Any activity that violates any relevant and applicable anti-money laundering and anti-terrorist financing laws and sanctions programs, such as, without limitation, the Bank Secrecy Act and the U.S. Department of Treasury’s Office of Foreign Asset Controls (“Financing Laws”). By using the Platform, You agree that we must comply with Applicable Law including any Financing Laws, which may require us to, upon request by government agencies, take certain actions or provide information which we deem necessary, which may not be in Your best interests.
*Any activity that seeks to interfere with or compromise the integrity, security, or proper functioning of the Platform or computer, server, network, personal device, or other information technology system, including, but not limited to, the deployment of viruses; denial-of-service attacks; use of any robot, spider, crawler, scraper or other automated means to extract or export data collected through the Platform; and conduct that imposes, or may impose, an unreasonable or disproportionately large load on our infrastructure.
* Any activity that seeks to defraud us or any other person or entity, including, but not limited to, providing any false, inaccurate, or misleading information in order to unlawfully obtain the property of another, or any action that implies an untrue endorsement by or affiliation with Ember Fund.
* Any activity that violates any Applicable Law including but not limited to laws or regulations concerning the integrity of trading markets such as manipulative tactics like spoofing or wash trading.
* Any use of the Platform to stalk, harass, bully, or harm another individual, or use of the Platform in any way that is defamatory, obscene, invasive, threatening, or harassing.
*Any activity or use of the Platform that involves an informal value transfer system, peer-to-peer transfers, third party payments (meaning acting as an intermediary, agent or other third party facilitator by using the Platform), or usage of the Platform as a payment system (without express written authorization by Ember Fund).
Ember Fund reserves the right to suspend or terminate Your access to the Platform, if we believe in our sole discretion that Your activities have violated any Prohibited Uses or if Your actions using the Platform may harm us or a third party. Further, Ember Fund reserves the right to deny, delay, or cancel a transaction it perceives as a risk of criminal or fraudulent activity at our sole discretion. Ember Fund reserves the right to suspend or terminate Your account or Your use of the Platform, if we believe in our sole discretion that Your activities have violated any Prohibited Uses or if Your actions using the Platform may harm us or a third party.
Please be aware that the underlying technology that makes blockchain based networks, cryptographic systems, and smart contracts available (collectively “Blockchain Technology”) is open source and can be used, copied, modified, and distributed by third parties. Ember Fund does not control or operate the Blockchain Technology, and we assume no responsibility for the operation, functionality, or security of the Blockchain Technology. Blockchain Technology is subject to change that is out of our control, which could materially affect the Platform and the value, functionality, availability, and use of any Digital Assets that are stored in Your Digital Wallet. It is Your responsibility to make yourself aware of upcoming operating changes, and You must carefully consider publicly available information in determining whether to continue to use the Platform, Your Digital Assets, or otherwise interact with the Blockchain Technology through the Platform. Blockchain Technology is currently under development, and this creates uncertainty relating to Digital Assets and transactions through the Platform. You acknowledge and accept the risks of using Your Digital Assets with our Platform that relies on Blockchain Technology and agree that Ember Fund is not responsible for any changes to any Blockchain Technology that may cause You to experience a complete loss of value or access to Your Digital Assets or Your Digital Wallet. Such changes may include, but are not limited, to forks, rollbacks, changes to operating rules, breaches of security, and outages. These risks include, but are not limited to, delays or losses in trades, and withdrawals of Your Digital Assets. You agree that these risks may materially impact Your transactions while using the Platform, which could result in the loss of the transaction or a complete loss of Your Digital Assets. As the Blockchain Technology supporting the Platform is constantly under development we cannot guarantee or otherwise ensure full security, fidelity, operation, accuracy, or completeness of any Blockchain Technology or the Platform’s interaction with any Blockchain Technology. You acknowledge that our Platform may be subject to flaws and that You are solely responsible for evaluating and You represent and warrant that You have the skill and ability to evaluate and understand the risks of using our Platform with any associated Blockchain Technology.
In order to transact Digital Assets via the Platform you may be required to connect or create a Digital Wallet that is hosted by you or a third party that contains Digital Assets legally owned by you. You are solely responsible for any transactions or transmissions that occur with your Digital Wallet. You agree to notify Ember Fund immediately of any unauthorized use or other breach of security of your Digital Wallet. Ember Fund will not be liable for any losses you incur as a result of you or someone else using your Digital Wallet. However, you could be held liable for losses incurred by Ember Fund or another party due to someone else using your Digital Wallet. Any Digital Wallets connected to the Platform that are not hosted by Wyre are non-custodial (“Non-Custodial Digital Wallet(s)”), meaning that you solely have custody and control the private keys to such Non-Custodial Digital Wallet. Ember Fund does not control, does not have access to, and cannot otherwise resolve any issues related to your Non-Custodial Digital Wallet. Ember Fund has no access to your private keys Non-Custodial Digital Wallet, and Ember Fund cannot help you recover your access to your Non-Custodial Digital Wallet or any underlying Digital Assets. Under no circumstances should you attempt to use your Digital Wallet, whether Hosted, Hybrid, or Non-Custodial, to store or transact any non-supported Digital Assets. Ember Fund assumes no responsibility or liability in connection with any usage of your Digital Wallet with the Platform, and you are solely responsible for your use of your Digital Wallet, including transfers of Digital Assets.
Ember Fund shall have programmatic access to your Digital Wallet through the Platform in order for you to initiate transfers of Digital Assets held in your Digital Wallet at your sole direction and instruction. At any time, subject to outages, downtime, and other applicable policies, the Wyre User Terms, or this Agreement, you may transfer your Digital Assets to and from your Digital Wallet through your use of the Platform. You should verify all transaction information prior to submitting instructions to us. Ember Fund is not able to reverse any transfers and will not have any responsibility or liability if you have instructed Ember Fund to send Digital Asset to an address that is incorrect, improperly formatted, erroneous or intended for a different type of Digital Asset. Ember Fund reserves the right to refuse to process or to cancel any pending transfers as required by law, at our discretion, in response to a subpoena, court order, or other binding government order, or to enforce transaction limits. We cannot control the transaction time for any requested transfers and such transaction times depend on the Blockchain Technology with which we have no control over, we will not be liable for any transfer delays or mis-processing of Digital Assets through your Digital Wallet
The Platform may offer services that are hosted by a third party for you to create and use a hosted digital wallet (“Hosted Digital Wallet”). Where you use a Hosted Digital Wallet through the Platform, Wyre is the custodian of such Hosted Digital Wallet and Ember Fund merely operates the Platform to allow you to access the Hosted Digital Wallet that is controlled by Wyre. You understand and agree that by creating a Hosted Digital Wallet any Digital Assets deposited in your Hosted Digital Wallet shall be custodied by Wyre. Wyre is in control of any Hosted Digital Wallet private keys and Ember Fund does not hold the private keys for any Hosted Digital Wallets. Ember Fund cannot grant you access to your Hosted Digital Wallet or access any deposited Digital Assets, which is solely in the control of Wyre. Any agreements entered into between you and Wyre are solely between you and Wyre and Ember Fund is not a party to any such agreement. You agree that your use of the Platform will not violate any Wyre User Terms. Your use, access, control, and ability to transfer any Digital Asset to and from your Hosted Digital Wallet shall be subject to the Wyre User Terms (https://www.sendwyre.com/user-agreement/) and any additional Wyre policies. Any issues with your Hosted Digital Wallet must be solely directed to Wyre. Any redress or recourse regarding any Hosted Digital Wallet must be solely directed to and completed by Wyre and you release Ember Fund from any liability regarding your Hosted Digital Wallet including but not limited to inability to access your Hosted Digital Wallet or any losses or unavailability of any Digital Assets stored within your Hosted Digital Wallet. Wyre and or its affiliates, are a licensed United States’ money services business and money transmitter which have custodial control of your Hosted Digital Wallet and will control the private keys for your Hosted Digital Wallet. Please be aware that Wyre may not have money transmitter licenses for all US states and your use of any Hosted Digital Wallet may be subject to any prohibitions based on your jurisdiction of residence or your physical location, by using a Hosted Digital Wallet you agree to abide by all such prohibitions. You may not be entitled to receive any interest or other fees from any Digital Asset held in your Hosted Digital Wallet, even if Ember Fund receives interest or other fees from any third parties.
Through the Platform you may be able to create a hybrid wallet (“Hybrid Wallet”). A Hybrid Wallet is a Hosted Digital Wallet created by your use of the Platform which is in the custody of Wyre. Your Hybrid Wallet may be converted into a Non-Custodial Digital Wallet depending on the type of Portfolio (defined below) that you have selected through the Platform. Where your Hybrid Wallet is in the custody of Wyre, your Hybrid Wallet shall be considered a Hosted Digital Wallet and subject to all Hosted Digital Wallet terms within this Agreement. Where your Hybrid Wallet has been converted into a non-custodial wallet all Non-Custodial Digital Wallet terms within this Agreement shall apply to such Hybrid Wallet.
The Platform may assist you in transacting a collection of Digital Assets that are referred to as portfolios (“Portfolio(s)”), each Portfolio may include a number of different Digital Assets. Each Portfolio is solely selected by you. We do not review, endorse, or recommend any Portfolio to you and you are solely responsible for any Portfolio transactions. Portfolios are identified on the Platform as “Custodial” or “Non-Custodial”. Any Portfolios that are labeled as “Non-Custodial” may only be held in Non-Custodial Digital Wallets or Hybrid Wallets and any Portfolios labeled as Custodial shall be held in Hosted Digital Wallets or Hybrid Wallets that are custodied by Wyre.
Any of your Hosted Digital Wallet or custodied Hybrid Wallet private keys are held by Wyre and Wyre is solely responsible for assisting you in retrieving any such private keys. You solely control all Non-Custodial Digital Wallets or non-custodied Hybrid Wallets and Ember Fund cannot assist you in retrieving any associated private keys.
Ember Fund does not provide any investment, tax, or legal advice, nor does the Ember Fund broker trades on the User’s behalf. We are not your broker, intermediary, agent or advisor and have no fiduciary relationship or obligation with you when you use the Platform to exchange Digital Assets or purchase Portfolios. We have no liability for any of your activities or decisions made while using the Platform. This Agreement is not intended to, and does not, create or impose any fiduciary duties on us. To the fullest extent permitted by law, you acknowledge and agree that we owe no fiduciary duties or liabilities to you or any other party, and that to the extent any such duties or liabilities may exist at law or in equity, those duties and liabilities are hereby irrevocably disclaimed, waived, and eliminated. You further agree that the only duties and obligations that we owe you are those set out expressly in this Agreement.
NO FINANCIAL, INVESTMENT, OR SECURITIES ADVICE IS GIVEN THROUGH THE PLATFORM. PLEASE CONSULT YOUR FINANCIAL PROFESSIONAL FOR ANY ADVICE. All information accessible through the Platform is for informational purposes only and should not be construed as investment, tax, or legal advice. Nothing contained on the Platform constitutes a solicitation, recommendation, endorsement, or offer by Ember Fund or any third party to buy or sell any Digital Assets, securities, or other financial instruments. Neither Ember Fund nor any of its affiliated parties has: (1) passed on the merit or approved of any Digital Assets displayed on the Platform; or (2) has endorsed or sponsored any Digital Assets displayed. All content found on the Platform is provided for informational and educational purposes only. No content found on the Platform, whether created by Ember Fund or another user is or should be considered as investment advice. PLEASE BE AWARE THAT ALL INFORMATION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. You should not take, or refrain from taking, any action based on any information contained within the Platform or any other information that we make available at any time, including, without limitation, blog posts, articles, links to third-party content, discord content, news feeds, tutorials, tweets, and videos. Before you make any financial, legal, or other decisions involving the Platform, you should seek independent professional advice from an individual who is licensed and qualified in the area for which such advice would be appropriate. Any data or content provided by Ember Fund is believed to be reliable and accurate; however, due to the nature of such content or data it is possible that such information may be inaccurate, untimely, or contain errors. You solely are responsible for evaluating such data or content and Ember Fund is not responsible for any errors or omissions with the data or content.
Digital Assets are inherently volatile and risky. The Platform attempts to provide up to date information for all Digital Assets listed; however, due to the nature of Digital Assets some information may be out of date or inaccurate. Any transaction should be quoted at the then listed rate of the trading platform You have selected. No representation is made as to the accuracy, completeness, or appropriateness for any particular purpose of any information (including transaction information) distributed via the Platform or otherwise encountered when using the Platform. As You control all transactions, You are solely responsible for verifying any rates for any Digital Assets we cannot change, reverse, or alter any rates. We are not liable to You for any inaccurately quoted rates for any Digital Asset and have no liability to You for any rates displayed. Our Platform cannot control the timing of any transactions, transaction times are based on Your Digital Asset and the Blockchain Technology that controls Your Digital Asset we are not liable or responsible for any delays or any issues due to untimeliness of any transactions initiated through the Platform. Use of the Platform is at Your sole risk and liability.
The transaction fee taken by Ember Fund may be one percent (1%) or another amount as listed within Your account or on the Platform (collectively “Transaction Fee”) depending on the type of transaction. For more information regarding transaction fees please contact us. Please be aware that aside from Transaction Fees, when initiating a conversion, purchase, rebalance, or other transaction of a Digital Asset through the Platform a mining fee of up to 0.2% may be taken where applicable. Such Transaction Fee shall be taken whether or not the transfer is actually successful. Further, You may be required to pay fees to Wyre, gas fees, or other fees as required by the Blockchain Technology. You are solely responsible for paying all fees, and we are not liable to You for any delays in any transactions where You have failed to pay any fees. Although we attempt to provide accurate fee information, this information reflects our estimate of fees. Such fees may vary from the actual fees that You pay to transact Digital Assets through the Platform
Any transaction involving the Digital Assets through the Platform is only completed upon confirmation through the Blockchain Technology, and we are not liable for any incomplete transactions or delays. You shall be required to maintain an adequate amount of Digital Assets to consume as gas (“Gas”) within Your Digital Wallet to process any requested transactions. Where You fail to maintain adequate Gas amounts You understand that You will be unable to partake in any transactions using Your Digital Wallet. We shall not be responsible for any delay in any transactions due to inadequate Gas within Your Digital Wallet. Please be aware that any Gas used cannot be returned and all Gas consumption or charges are subject to the Blockchain Technology.
Once a transaction has been initiated it may not be reversed or refunded. Please be aware that we cannot assist You in any issues related to Your Digital Wallet, whether or not such Digital Wallet is a Hosted Digital Wallet. If You have any questions regarding a transaction completed using the Platform by Your Digital Wallet, please contact us.
Depending on the laws of Your jurisdiction You may be taxed for any payments or purchases. Therefore, at the time of payment we may collect all applicable taxes related to Your use of the Platform. In the event that we do not collect the applicable taxes, You agree that You are still responsible for any applicable taxes. Although no taxes may be collected by us You agree that You will pay any applicable taxes or fees to the tax agencies having jurisdiction over You.
If we believe that You have participated in a fraudulent transaction we will pursue our claims against You to the fullest extent allowed by law and we reserve the right to take any action necessary regarding any fraudulent transactions. In the event that we believe that a User has completed a fraudulent transaction, we will forward Your information to the applicable law enforcement agency, which may result in civil or criminal penalties.
When accessing or using our Platform, You are solely responsible for Your use and for any use of the Ember Fund Platform made using Your account. You agree to abide by the following rules of conduct:
• You will not copy, distribute or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”;
• You will not attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Platform;
• You will not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract or export data collected through the Platform;
• You will not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
• You agree not to use the Platform to stalk, harass, bully or harm another individual;
• You agree that You will not hold Ember Fund responsible for Your use of the Platform;
• You agree not to violate any requirements, procedures, policies or regulations of networks connected to Ember Fund;
• You agree not to interfere with or disrupt the Platform;
• You agree to not violate any US federal or state laws while using the Platform; and
• You agree not to use the Platform in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
If You are discovered to be undertaking any of the aforementioned actions or if we believe that any of Your actions may harm Ember Fund’s Platform or business interests Your privileges to use our Platform may at our sole discretion be terminated, revoked, or suspended. Generally, we will provide an explanation for any suspension or termination of Your use of any of our Platform, but Ember Fund reserves the right to suspend or terminate any account at any time without notice or explanation.
Although we try to provide continuous availability to You, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time. Specifically, we do not guarantee any uptime or specific availability of the Platform. You agree and acknowledge that the Platform uses remote access and may not always be either 100% reliable or available. Only Users who are eligible to use our Platform may do so and we may refuse service or terminate Your access at any time. We cannot guarantee that any portion of the Platform will work to the functionality desired by You or give You any desired results.
We reserve the right to alter, modify, update, or remove the Platform or any portions thereof, at any time at our discretion. We reserve the right to discontinue previously offered features or functionality at our sole discretion and without prior notice. We are not liable to You or to any third party for any modification, suspension, or discontinuance of any feature or component of any portion of the Platform. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by the Platform without notice to You. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications or provide You access to previous versions of our Platform. Nothing in this section obligates us to take measures to update the Platform for security, legal or other purposes.
Your ability to submit or transmit any information through the Platform, including but not limited to text, photos, videos images or any other information will be referred to as “User Content” throughout this Agreement. Please be aware that we are not required to host, display, migrate, or distribute any of Your User Content and we may refuse to accept or transmit any User Content. You agree that You are solely responsible for any User Content submitted and You release us from any liability associated with any User Content submitted. You understand that we cannot guarantee the absolute safety and security of any such User Content. Any User Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion. When submitting any User Content to our Platform You represent and warrant that You own all rights to the User Content and You have paid for or otherwise have permission to use any User Content submitted. When You submit any User Content to us, You grant Ember Fund, its partners, affiliates, users, representatives and assigns a non-exclusive, fully-paid, royalty-free, irrevocable, world-wide, universal, transferable, assignable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works, market, sub-license or use and reuse all or part of Your User Content. It is important for You to grant us this license so that we may transmit and share Your User Content and review such User Content. Additionally, although You own all User Content submitted by You, we own all layouts, arrangement, metadata and images that are used to render Your User Content through our Platform. We reserve the right to remove, delete, modify, screen, edit, or refuse any User Content for any reason or no reason, and with or without notice to You. Please be aware that all User Content may be viewed by third parties, thus we cannot guarantee the confidentiality of any User Content.
When submitting any User Content You agree to the following:
• You agree that User Content submitted is truthful and accurate;
• You agree not to submit any User Content that contains any confidential information;
• You agree not to submit any User Content that contains nudity, or sexual, or explicit content;
• You agree not to submit any User Content that depicts gratuitous violence, animal or child abuse, or encourages violence against others;
• You agree not to submit any User Content contains hate speech or promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, nationality, veteran status, or sexual orientation/gender identity;
• You agree not to submit any User Content that is considered spam or politically controversial; and
• You agree not to submit any User Content that may be considered: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
If You have violated any of our User Content Guidelines or if we believe that any User Content may harm the Platform, Your access to the Platform may be suspended or terminated.
Ember Fund shall have the right, but not the obligation, to monitor all User Content on the Platform at all times, to determine compliance with this Agreement and any guidelines established by us. Without limiting the foregoing, Ember Fund shall have the right, but not the obligation, to remove or disable access to any User Content at our sole discretion.
Through the Platform, third parties may be able to post information (“Third Party Content”). Ember Fund does not introduce, endorse, or recommend any third parties or Third Party Content to You or vice versa. Any opinions, advice, or information expressed by any third party are those of the individual and the individual alone and they do not reflect the opinions of Ember Fund. Ember Fund does not direct, is not an employer, has no control over, makes no representations, and does not guarantee the quality, safety or legality of any third party or any Third Party Content. Please be aware that any Third Party Content posted may not be truthful, accurate, or up to date. EMBER FUND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE, LOSS OR INJURY ARISING OUT OF: (1) ANY INTERACTIONS BETWEEN You AND ANY THIRD PARTY; (2) ANY THIRD PARTY CONTENT, AND/OR (3) ANY LOSS OR INJURY ARISING OUT OF ANY ACT OR OMISSION OF ANY THIRD PARTY OR ANY THIRD PARTY CONTENT. EMBER FUND IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES, NEGLIGENCE OR MISCONDUCT OF ANY THIRD PARTY OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES (INCLUDING LOST PROFITS) OR EXPENSES RESULTING THEREFROM OR OTHERWISE ARISING FROM Your USE OF THE PLATFORM. You agree not to attempt to impose liability on, or seek any legal remedy from EMBER FUND with respect to such actions or omissions OF A THIRD PARTY. You ARE SOLELY RESPONSIBLE FOR ALL INTERACTIONS WITH ANY SERVICE PROVIDERS. You AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF You DO NOT BELIEVE THEY ARE REASONABLE, PLEASE DO NOT USE OUR PLATFORM.
You may cancel Your account at any time via the Ember Fund dashboard or contacting us at firstname.lastname@example.org. Please be aware that upon termination of Your account, access to portions of our Platform may be immediately disabled. Termination of this Agreement does not relieve the User from any obligation to pay Ember Fund. Upon termination You will not be entitled to any refunds or proration of any fees paid except as stated in this Agreement. We may terminate Your account, suspend Your account, or this Agreement with You if we determine that: (1) You have violated any applicable laws while using our Platform; (2) if You have violated this Agreement or any other of our Platform policies; (3) if Your account has remained inactive for an extended period of time; or (4) if we believe that any of Your actions may harm Ember Fund or a third party, at our sole decision or discretion. In the event of termination, we will strive to provide You with a timely explanation; however, we are not required to do so. Where termination has occurred, portions of this Agreement shall survive and remain in full force as stated in the “Survival” section of this Agreement.
From time to time Ember Fund may offer discounts, programs, promotions, incentives, or other initiatives (collectively “Initiatives”) through the Platform. Please be aware Ember Fund reserves the right to discontinue, alter, remove, update, or otherwise change any Initiatives at any time and at our discretion. Your participation or eligibility to participate in any Initiative is subject to Ember Fund’s approval and we may remove or restrict Your participation in any Initiative at our discretion. Any Initiatives are also subject to any additional terms and conditions as set forth or as promulgated by Ember Fund. Ember Fund has no obligation to offer any Initiatives and You agree to release us from any liability associated with Your participation in any Initiative. We reserve the right to determine whether any fraud or violations have occurred during Your participation in an Initiative and we reserve the right to take any corrective action necessary including but not limited to the removal of any rewards or Digital Assets offered or the suspension or termination of Your account.
Earn Digital Assets
Ember Fund may offer Initiatives that allow you to earn Digital Assets through your use of the Platform which may include referral of new users to the Platform or participation in other special programs (collectively referred to as “EDA Program”). In addition to any terms or eligibility requirements posted on the Platform, all EDA Programs are subject to the following conditions:
You have no right to any EDA Program reward (each a “Reward”) until such Reward has been deposited into your Digital Wallet.
Any Reward or rate of earning Rewards stated on the Platform is merely an estimate and your actual Reward may vary, we reserve the right to modify any Reward amounts or Reward rates at our discretion. EMBERFUND DOES NOT GUARANTEE ANY REWARD RATE OR REWARD.
We reserve the right to limit any Rewards in any EDA Program.
Any Rewards that are not earned due to an error shall not be retroactively credited.
You may not self-refer or create multiple accounts to receive additional Rewards, all Rewards are limited on a per person basis, meaning that You are only eligible to earn Rewards on one account.
You may be required to keep any Reward deposited into your Custodial Wallet for a minimum period of ninety (90) days (“Lock-up Period”). During this Lock-up Period you will not be able to move any Reward or equivalent Digital Assets off the Platform or transfer such Reward or Digital Assets to a Digital Wallet off-Platform.
We may limit minimum Reward withdrawal amounts or timing of any Reward withdrawals to any off-Platform Digital Wallets.
Where we determine (in our sole discretion) any Rewards have been earned in a fraudulent, prohibited, or unlawful manner or any Rewards earned are in violation of any obligations as set forth within this Agreement, we reserve the right to withhold such Rewards and to terminate Your account.
All decisions made by Ember Fund related to your participation in an EDA Program, any Rewards, or EDA Programs (in general), are final.
We reserve the right to add, change, or delete any provision of these terms and to terminate the EDA Programs, or Your participation in any EDA Program, at any time.
Ember Fund or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to Ember Fund. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Ember Fund’s products might seem similar to ideas You submitted to Ember Fund. If, despite our request that You not send us Your ideas, You agree to the following: (1) Your Submissions and their contents will automatically become the property of Ember Fund, without any compensation to You; (2) Ember Fund may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for Ember Fund to review the Submission; and (4) there is no obligation to keep any Submissions confidential.
The name “Ember Fund,” “Ember Fund, Inc.”, the Ember Fund logo, the design of the Ember Fund Platform along with Ember Fund created text, writings, images, templates, scripts, graphics, interactive features and the trademarks, marks and logos contained therein ("Marks"), are owned by or licensed to Ember Fund. The Marks are subject to copyright and other intellectual property rights under US laws and international conventions. Ember Fund reserves all rights not expressly granted in and to the Platform. You agree to not engage in the use, copying, or distribution of the Marks or anything else contained within the Platform unless we have given You express written permission. All rights not expressly granted are hereby reserved.
Transacting Digital Assets or using Blockchain Technology involves significant risks and potential for financial losses which may result in the theft or loss of some or all of Your Digital Assets. Such risks include without limitation the following:
*the Digital Assets and the Blockchain Technology are constantly under development making Your Digital Assets vulnerable to hacking, breaches in security, flaws, errors, bugs, failures, loss, theft, and fraud (whether due to Ember Fund or otherwise);
*Digital Assets may fail to operate, lose all value, or be changed in a manner including without limitation a fork or rollback of the underlying Blockchain Technology;
*the Digital Assets may decrease in value or lose all of its value due to various factors including discovery of wrongful conduct, market manipulation, changes to the underlying Digital Asset or Blockchain Technology. Such factors could cause transaction costs to increase which may impact Your use of the Platform;
*suspension or cessation of support for a Digital Assets by Blockchain Technology service providers may result in a total loss or inability to transfer or access any Digital Assets; and
*Digital Assets may lose value or functionality due to governmental action, laws, or regulation as there is uncertainty to the legal status and categorization of Digital Assets. Such actions could result in the loss of access to the Platform.
You hereby assume and agree that Ember Fund will have no responsibility or liability for such risks. You hereby irrevocably waive, release, and discharge any and all claims, whether known or unknown to you, against Ember Fund, its affiliates and their respective shareholders, members, directors, officers, employees, contractors, agents, and representatives related to any of the risks set forth herein. You accept the risk of all use of the Digital Assets and are responsible for conducting Your own independent analysis of the risks specific to the Digital Assets. You should not acquire any Digital Assets unless You have sufficient financial resources and can afford to lose all value of the Digital Assets.
THE PLATFORM ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER EMBER FUND, NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, LOST PROFITS, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. THE INCLUSION OF ANY DIGITAL ASSET ON THIS PLATFORM DOES NOT CONSTITUTE ANY ENDORSEMENT OR RECOMMENDATION BY EMBER FUND. EMBER FUND DOES NOT WARRANT THAT Your USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND EMBER FUND SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.
Your USE OF THE PLATFORM IS AT Your SOLE RISK. You ACKNOWLEDGE AND AGREE THAT EMBER FUND DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS BUT MAY DO SO AT OUR DISCRETION. IF WE CHOOSE TO CONDUCT SUCH CHECKS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM EMBER FUND OR THROUGH THE PLATFORM, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
IN NO EVENT SHALL EMBER FUND, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO You FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN JURISDICTIONS THAT ALLOW A LIMITATION ON LIABILITY, You AGREE THAT OUR LIABILITY, IS NO MORE THAN THE AMOUNT You PAID IN THE PAST SIX MONTHS FOR SERVICES OR ONE-HUNDRED US DOLLARS, WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EMBER FUND AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO You AND You MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY BETWEEN JURISDICTIONS. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by Ember Fund’s negligence or that of any of its officers, employees or agents; (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future. You
You expressly agree that You assume all risks in connection with Your access and use of the Platform, whether such risks are set forth in this Agreement or otherwise. THE PLATFORM ONLY ASSISTS USERS IN TRANSACTING DIGITAL ASSETS THROUGH DIGITAL WALLETS THAT MAY CONTROLLED BY USER OR HOSTED BY A THIRD PARTY. EMBER FUND WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY ACTIONS UNDERTAKEN BY You AND You EXPRESSLY WAIVE AND RELEASE EMBER FUND FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO Your USE OF THE PLATFORM. You RELEASE EMBER FUND AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND ASSIGNS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE WITH ANOTHER USER, THE PLATFORM, OR OTHER THIRD PARTY.
You agree to release, defend, indemnify, and hold Ember Fund and its affiliates and subsidiaries, and their officers, directors, employees, contractors, attorneys, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) Your breach of this Agreement; (ii) Your improper use of the Ember Fund Platform; (iii) Your interaction with any other user or other third party including without limitation any injuries, losses or damages of any kind arising in connection with or as a result of such interaction; and (iv) Your breach of any Applicable Laws, regulations or third-party rights. You agree that this indemnity extends to requiring You to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and
You shall be liable for the damages as though we had proceeded with a trial.
We take copyright infringement very seriously. If You believe that any copyrighted material owned by You has been infringed upon by someone using our Platform, please send us a message which contains:
• Your name.
• The name of the party whose copyright has been infringed, if different from Your name.
• The name and description of the work that is being infringed
• The location on our Platform of the infringing copy.
• A statement that You have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
• A statement that You swear, under penalty of perjury, that the information contained in this notification is accurate and that You are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to our Copyright Agent: Copyright Agent of Ember Fund, email@example.com or Copyright Agent - Ember Fund, Inc. 12130 Millennium Drive 02-174, Los Angeles, CA 90094
In the event that You receive a notification from Ember Fund stating content posted by You has been subject to a DMCA takedown, You may respond by filing a counter-notice pursuant to the DMCA. Your counter-notice must contain the following:
• Your name, address, email and physical or electronic signature.
• The notification reference number (if applicable).
• Identification of the material and its location before it was removed.
• A statement under penalty of perjury that the material was removed by mistake or misidentification.
• Your consent to the jurisdiction of a federal court in the district where You live (if You are in the U.S.), or Your consent to the jurisdiction of a federal court in the district where the party is located.
• Your consent to accept service of process from the party who submitted the takedown notice.
Please be aware that we may not take any action regarding Your counter-notice unless Your notification strictly complies with the foregoing requirements. Please send this counter-notice to: firstname.lastname@example.org or Copyright Agent - Ember Fund, Inc. 12130 Millennium Drive 02-174, Los Angeles, CA 90094
This Agreement shall be governed by the laws in force in the state of California. The offer and acceptance of this contract is deemed to have occurred in California.
This Agreement and any dispute arising out of or in connection with this Agreement (“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of the state of California, without giving effect to conflict of laws principles thereof.
Each party agrees that before it seeks mediation, arbitration, or any other form of legal relief it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of the Agreement which are allegedly being breached). Within thirty days after such notice, knowledgeable executives of the party or the individuals themselves shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the Dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, or trade secrets.
You agree that any dispute relating in any way to Your use of the Platform shall be submitted to confidential binding arbitration. If there is a dispute about whether this arbitration provision can be enforced or applies to the Dispute, You and Ember Fund agree that the arbitrator will decide that issue. However, any claim that all or part of the Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
Arbitration under this Agreement is under the Federal Arbitration Act which governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules (the “Rules”) then in effect, except as modified here. Arbitration shall be conducted by one (1) arbitrator as selected pursuant to the Rules; the arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. The location of the arbitration shall be Los Angeles, CA or a location agreed upon by the parties. Where a Dispute does not exceed $15,000 such Dispute shall be arbitrated solely via pleadings and documents. Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned (. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration, You agree that any actions shall be brought solely in a court of competent jurisdiction located within or otherwise nearest to Los Angeles, CA. For a copy of the Rules, please visit www.adr.org or by calling the AAA at 1–800–778–7879.
User has the right to opt out of binding arbitration within thirty (30) days of the date You first accepted this Agreement by notifying us at with a communication labeled “Arbitration Opt Out” to email@example.com or by mail at Ember Fund, Inc. 12130 Millennium Drive 02-174, Los Angeles, CA 90094. In order to be effective, the opt out notice must include Your full name, any account information, and must clearly indicate Your intent to opt out of binding arbitration. If You have decided to opt-out of Binding Arbitration, all Disputes shall be heard in a court of competent jurisdiction located within Los Angeles County, CA.
Exceptions to Arbitration
User agrees that all Disputes shall be arbitrated, except for as provided above and as follows: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances such as, imminent danger or commission of a crime. Such claims shall be brought before a judicial proceeding in a court of competent jurisdiction located within Los Angeles County, CA.
YOU UNDERSTAND AND AGREE THAT YOU AND EMBER FUND MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND EMBER FUND BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST EMBER FUND, WHICH ARE ADDRESSED SEPARATELY.
Notwithstanding any other provision of this Agreement, the Arbitration provisions or any associated rules or the, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Disputes (defined below), the class, collective, and/or representative action on such Disputes must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) You and Ember Fund agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both You and Ember Fund agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether You have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the arbitration section or the associated rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on any arbitration provisions or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the arbitration provisions; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Disputes to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Disputes, the parties agree that litigation of those Disputes shall be stayed pending the outcome of any individual Disputes in arbitration.
You agree that we are not responsible to You for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it. Any ambiguities shall be interpreted by its plain meaning.
If two or more provisions of this Agreement or any other agreement You may have with Ember Fund are deemed to conflict with each other’s operation, You agree that Ember Fund shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, content provisions, User representations and warranties, payment provisions, ownership provisions, warranty disclaimers, indemnity, dispute, arbitration, PAGA, class action waivers, prohibitions, representations and warranties, and limitations of liability.
You may not assign Your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion. The parties are independent contractors and nothing in this Agreement implies a fiduciary, agency, or other special relationship.
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email You. You may refuse to agree to the amendments, but if You do, You must immediately cease using our Platform.
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Ember Fund must be sent to our agent for notice to: firstname.lastname@example.org or Ember Fund, Inc. 12130 Millennium Drive 02-174, Los Angeles, CA 90094
California Users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
The Platform and the underlying information and technology may not be downloaded, accessed, or otherwise exported or re-exported (1) into (or to a national or resident of) any country to which the U.S. has currently embargoed goods; or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Platform, You agree to the foregoing and You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list, and that You will otherwise comply with all applicable export control laws.
The communications between You and Ember Fund use electronic means, whether You visit the Platform or send Ember Fund e-mails, or whether Ember Fund posts notices on the Platform or communicates with You via email. For contractual purposes, You (1) consent to receive communications from Ember Fund in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Ember Fund provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Your statutory rights.
WE ARE NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR. THE SERVICES ARE AN ADMINISTRATIVE PLATFORM ONLY. EVITE.COM FACILITATES TRANSACTIONS BETWEEN THE BUYER AND GIFT CARD RECIPIENT BUT IS NOT A PARTY TO ANY AGREEMENT BETWEEN THE BUYER AND GIFT CARD RECIPIENT OF CRYPTO ASSETS OR BETWEEN ANY USERS. The prices of blockchain assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the Crypto Assets, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of Crypto Assets will not lose money"
Last Updated: April 19th, 2023
Supplement to Terms; No Limitation. This Addendum supplements the Terms and is intended to be read as a part thereof. The Addendum does not (and is not intended to) amend, invalidate, waive, or void any provision of the Terms, and shall be interpreted consistent with the Terms, to the maximum extent possible. To the extent that any provision of this Addendum is found to contradict the Terms or is found to be otherwise in irreconcilable conflict with the Terms, the Terms shall control and any such conflicting part of this Addendum shall be stricken.
IMPORTANT: The Terms contain dispute resolution, limitation of liability, and other Arbitration, Private Attorney General Act (“PAGA”), and class action/collective rights of action waiver provisions that affect Your rights. These provisions apply to Your activities related to the Competitions. PLEASE REVIEW THE TERMS CAREFULLY. YOU MAY NOT PARTICIPATE IN ANY COMPETITIONS OR OTHERWISE USE OR ACCESS THE PLATFORM UNLESS YOU AGREE TO ALL OF THE TERMS.
Description and Nature of the Competitions. The “Play” tab of our mobile application takes you to our Competitions. The Competitions are skill-based cryptocurrency fantasy trading tournaments, separate from the actual real-money portfolio and investment mechanism. The Competitions function as an educational and entertainment tool for prospective cryptocurrency investors, as well as an entertaining opportunity to speculate with a fantasy portfolio and win a prize for skills related to the evaluation of the cryptocurrency market. In general, players use their market knowledge and research skills to pick real-world cryptocurrencies for their fantasy portfolios. Players pay an administrative entry fee from their Wallet and are given a choice of 150 different cryptocurrencies or coins to select for their portfolios. Players have a set “pre-game” period to create and balance their fantasy portfolio before the tournament starts and the fantasy portfolio is locked for the game period.
To enter a Competition, you must pay a preset entry fee in BTC that is transferred from your BTC Wallet (“Entry Fee”). The Entry Fee is deemed prepaid and is for the privilege and entertainment value of entering the Competitions. The Entry Fee shall not be refundable under any circumstances.
Certain Competitions have their own special rules and features that are disclosed on the particular Competition’s entry page or otherwise in our How to: Tournaments section.
In general, and subject to the Competition’s particular set of rules, each player’s portfolio competes against other players’ portfolios based on real-world cryptocurrency prices and market data over a pre-set period. The player whose portfolio performs the best (in terms of percentage growth) is deemed the winner and is awarded a predetermined and disclosed prize credited to the player’s BTC Wallet. The winners are determined based on best relative performance, as compared to the other portfolios in the Competition.
Each Competition has a “pot” or prize pool that is divided among the best performing players, with the top finisher receiving the largest share, the second place receiving the second largest, and so on. Each Competition is capped at a pre-set number of participants.
We reserve the right to delay or withhold the distribution of any prize pool pending KYC or similar authentication or investigation that may be required by applicable law, including for the purpose of compliance with tax reporting and payment obligations.
We also reserve the sole right and discretion to delay or withhold the distribution of any prize pool pending our investigation into the integrity of any Competition. We reserve the right to void the results of any Competition and refund the entry fees to the participants for any reason or no reason at all.
As a participant in or winner of any Competitions, you agree to respond to our requests for information or documentation, and to provide us with such information or documentation necessary to ensure your compliance with any Applicable Laws or this Addendum. We will reach out and request such information from you in writing, on an as needed basis. Your failure to respond or to provide us with the requested information is a breach of this Addendum.
Taxes. If you are a United States resident, we may send you an IRS Form W-9 to request your social security number so that we may send you a 1099-MISC or other appropriate form if your Competition winnings total six hundred dollars ($600) or more in any given calendar year. Depending on the state in which you reside, we may also send you additional federal or state tax forms. If you fail to complete and return the IRS Form W-9 when required, we may suspend or terminate your Account. Without limiting the foregoing, we may withhold from your existing Wallet balance and/or delay deposit of any winnings amount. We may withhold any amount required to be withheld by applicable laws, including amounts due in connection with your failure to complete relevant tax documentation. You are solely responsible for paying all federal, state and other taxes related to your winnings in accordance with all laws that may be applicable to you.
No Investment Advice or Intent; For Personal Entertainment Only. We are not financial or investment advisors, do not offer financial or investment advice, and nothing in our Competitions is intended to be construed or taken as financial or investment advice. It is a violation of this Addendum (as well as potentially a violation of the laws of the jurisdiction in which you are located) to use the Competitions for any purpose other than personal entertainment or to use the Competitions for any commercial purpose. You are strictly prohibited from misrepresenting that the Competitions generate any financial advice, or “recommend” any particular portfolio, or otherwise are used or useful for anything other than personal entertainment.
Rules. In addition to the conduct prohibited under the Terms, the following are expressly prohibited and may result in your removal from the Competition, forfeiture of any entry fee, closure or suspension of your account, referral to the appropriate law enforcement agencies, or other action or remedy that may be available to us to the maximum extent permitted by law. You SHALL NOT:
Use automated means (including but not limited to scripts and third-party tools) to interact with our Competitions or App in any way;
Use automated means (including but not limited to harvesting bots, robots, parser, spiders or screen scrapers) to obtain, collect or access any information from our Competitions or App or other users;
Obtain other users’ information and/or spam other users;
Interfere in any way with other users’ use of the Competitions or App;
Abuse or misuse the Competitions or App in any way;
Download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Competitions or App, except for temporary files that are automatically cached by your device for display purposes;
Duplicate, decompile, reverse engineer, disassemble or decode the Competitions or App (including any underlying idea or algorithm), or attempt to do any of the same;
Use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Competitions or App;
Use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Competitions or the App;
Exploit the Services or the App for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;
Cooperate, collude, or conspire with other users to cheat or gain a competitive advantage;
Engage in Hacking: ANY ATTEMPT BY A YOU OR ANY OTHER INDIVIDUAL TO DELIBERATELY DAMAGE OUR APP OR UNDERMINE THE LEGITIMATE OPERATION OF THE APP AND/OR THE COMPETITIONS IS A VIOLATION OF CRIMINAL AND/OR CIVIL LAWS AND SHOULD SUCH AN ATTEMPT BE MADE, WE RESERVE THE RIGHT TO SEEK DAMAGES AND OTHER REMEDIES FROM ANY SUCH PERSON TO THE FULLEST EXTENT PERMITTED BY LAW.
No Limitation on Remedies. You further acknowledge that the termination of your Competition participation or closure of your Account or its suspension shall in no way prevent us from pursuing criminal or civil proceedings in connection with such conduct.
Indemnification on Participation in the Competitions. By participating in or accessing the Competitions, you expressly agree the Indemnity provisions in Section 38 of the Terms. PLEASE REVIEW SECTION 38 CAREFULLY, AS IT CONTAINS IMPORTANT PROVISIONS RELATED TO YOUR RIGHTS AND OBLGIATIONS TO US.
Waiver. We are not responsible for: any incorrect, invalid or inaccurate entry information; human errors; technical malfunctions; failures, including public utility or internet outages; omissions, interruptions, deletions or defects of any communications system or network, computer online systems, data, computer equipment, servers, providers, or software, including without limitation any injury or damage to any entrant's or any other person's computer or video equipment relating to or resulting from participation in the Competitions; inability to access our App; theft, tampering, destruction, or unauthorized access to, or alteration of, entries and/or images of any kind; data that is processed late or incorrectly or is incomplete or lost due to electronic, postal issues, computer or electronic malfunction or traffic congestion on communication lines or transmission systems, or the internet, or any service provider's facilities, or any phone site or website or for any other reason whatsoever; typographical, printing or other errors, or any combination thereof.
Legal and Regulatory Compliance.
Compliance With Laws. It is your sole responsibility to determine whether there are any laws that prohibit or restrict your ability to access or participate in the Competitions or otherwise use the App (“Applicable Laws”). If Applicable Laws restrict your activities related to the Competitions or the App, you may not access or use or attempt to access or use the App, including the Competitions. Notwithstanding the foregoing, we have determined that persons located within the states of Arizona, Louisiana, and South Carolina (“Restricted Jurisdictions”) may not participate in any Competitions. We reserve the right to change the Restricted Jurisdictions at any time and with or without notice.
Important: The fact that you are able to access the Competitions, register for, and/or participate in any Competition is not a representation or guarantee by use that your activities comply with the Applicable Laws. As set forth above, it is your sole responsibility to determine whether there are any laws that prohibit or restrict your ability to access or participate in the Competitions or to otherwise use the App. We disclaim any and all responsibility or liability for your failure to follow your jurisdiction’s laws.
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