Cloud Nalu Terms of Use

Last Updated: June 28th, 2021

1. Introduction
   

1.1 Please read this document carefully as it contains important information regarding the Terms and Conditions of use of Cloud Nalu LLC’s (the “Company,” “we,” or “us”) web, APIs, and mobile applications. This document also pertains to any other services offered to you by us, including software made available through a third party that enables you to purchase bitcoin (BTC) (“bitcoin”) through a third party, and withdraw your purchased bitcoin. When you sign up for an account through cloudnalu.com or any associated website, API, or mobile application (collectively the “Site”), you agree that you have read, understood, and accept all of the terms and conditions contained in this document, as well as our Privacy Policy and Cookie Policy. 

1.2 These Terms may be revised at any time, at our discretion. Changes to the Terms will be made available on the Site with a revised “Last Updated” date at the beginning of the document. The updated Terms go into effect on the date posted. Continued use of our services constitutes acceptance of the updated Terms document. If you do not agree with any of the new terms, you should not continue to use the services provided by Cloud Nalu. 

1.3 Please read the Terms and Conditions and Privacy Policy carefully. These Terms govern your use of the Services provided. The Terms contain important information regarding your rights to how disputes are resolved, including a binding arbitration and a class action waiver. You should only utilize the Services if you agree completely with the Terms laid out in this document. By indicating your agreement below or by using our services, you confirm that you understand this document and are bound by its terms. 

1.4 If you accept the Terms on behalf of a legal entity, you confirm that you have the authority to make decisions and to accept the terms on the legal entity’s behalf. Aside from this paragraph “you” will refer to the legal entity. If you do not have the authority or do not accept the terms outlined here, then we will not provide Services to you and neither you nor the legal entity should access our services.

1. Account
   

2.1 In order to use our Services you must create an account (an “Account”). An Account is an arrangement made by Cloud Nalu between you, us, and our partner (Custodian).  In order to create an Account you must submit the required information, which may include, but is not limited to, your name, email address, phone number, street address, zip code, date of birth, social security number, and government-issued identification documents. You must also agree to our Custodian’s self-directed custodial account agreement and Terms of Use. By creating an Account you certify that all information is accurate and up to date, and you will promptly update any information as necessary if there are changes. If you access your Account from a new device you may be required to re-authenticate. If you cannot re-authenticate your Account you may not have access to your Account. 

2.2 To use some of our features, you may be required to select a username. Your username must accurately represent you and may not be misleading about your identity. We may request you to change your username or any other Account details at our sole discretion and we may make your username unavailable or take it back at no liability to you. 

2.3 To be eligible to create an Account, you must be 18 years of age or older, be able to enter binding contracts under appropriate laws, and have not been previously suspended or removed from our Services. 

2.4 You authorize us to make any inquiries we deem necessary, either directly or through a third party, in order to validate your Account and personal information. This may include, but is not limited to, requiring that you confirm your email address, phone number, or financial instruments; requesting further documentation about your identity or Account usage; or checking your information against third party databases or other sources. 

2.5 At our sole discretion we may reject your Account application, or cancel your Account, for any reason. You will continue to retain all rights related to the assets you have purchased, deposited, or held with the Custodian. 

2.6 The primary method of communication about your Account and any technical assistance will be the email address you have provided. You are responsible for keeping your email address and contact information up to date in your Account.

2.7 You agree to receive text (SMS) messages from us by listing a mobile phone number in your Account. Standard rates from your mobile carrier apply.

2.8 You may not create an Account under false or fraudulent circumstances. You may not access an Account that is not your own without that person’s express prior permission. You may not impersonate another person or entity to gain access to their Account. 

2.9 You certify that you will not use our Services in any manner that is deemed unlawful and you will comply with all pertinent laws. You take sole responsibility for any unlawful activity associated with your Account, including any false or misleading information provided during the creation of your Account. 

2.10 Your Account and transaction information will be shared with third party service providers in order to facilitate transactions in accordance with our Privacy Policy.

2.11 You assume full responsibility for the security of your Account. You agree to notify us of any suspicious or fraudulent activity on your Account immediately at aloha@cloudnalu.com. 

1. Purchasing Bitcoin
   

3.1 You will be required to do the following for each BTC purchase: (1) select the value of BTC you wish to purchase in USD or BTC; (2) select the account for which to transfer the BTC to; (3) provide the payment information from which to debit from, which could be bank account information or credit or debit card information, if we choose to make such purchases available; and (4) agree to the Custodian’s self-directed custodial account agreement. You will be required to review and confirm each BTC purchase after you submit the order. After submitting the order, you have a limited amount of time, usually 10 seconds (10s) to review and confirm the order.

3.2 Upon confirmation of the BTC purchase, the information provided in Section 3.1 will be used to (1) create the trade transaction for the amount requested (plus the Fee (defined below)) using the payment information; (2) transfer the purchased BTC to the digital wallet created for you to hold BTC for you; (3) transfer the portion of the Fee to a digital wallet to hold BTC for us; and (4) after the end of the 10-day lock period from the date of purchase, upon your request, transfer the BTC as a withdrawal, to any other digital wallet address designated and controlled by you. 

3.3 We charge a percentage of the purchase price of BTC (the “Fee”) in order to use our Services. This Fee is for the use of our Services and the Custodian. This Fee is displayed on the Site at the time of use of the Service.

3.4 We provide information indicating the average price of BTC buy and sell orders on our Site chart and elsewhere on our Site.  The purchase uses a unique price that is not the same as the average price of the buy and sell orders, which may lead to a discrepancy between the price used for the order, and the price displayed on the BTC chart or elsewhere on our Site. The price of each order is displayed within the order window and the confirmation window.

1. Our Relationship with the Custodian
   

The Custodian will not take direction from us, nor do we have the authority to direct the Custodian. Your purchased BTC will not be commingled with any other BTC custodied by the Custodian on our behalf. We will never have any control or decision-making authority in regards to BTC that the Custodian custodies on your behalf. We will not be named on your custodial account with the Custodian as an agent. 

1. Our Rights
   

We reserve the following rights: (1) to modify, substitute, add to, or eliminate any of our Services with or without notice to you; (2) to terminate or suspend the Account of anyone found in violation of these Terms; (3) to review, disable, delete, modify, remove, and filter all content and information on the Site; (4) to update and download automatically any software that we provide on or through the Site; (5) to cooperate with court, government, or law enforcement investigation or order, or a third party requesting that we disclose any content or information provided by you; (6) to have advertisements or promotions displayed that may be targeted to users or sections of the Site based on your use of our Services that may not be indicated as paid advertisements or promotions.

1. Intellectual Property Ownership
   

6.1 We retain the rights, titles, and interests in all of our intellectual property, including, without limitation, ideas, code, discoveries, processes, inventions, concepts, marks, software, visual interfaces, graphics, method, systems, services, designs, “look and feel”, compositions, formulae, techniques, organization, information, and dada (collectively, the “Company IP”). The Company IP is protected by copyright, patent, trade dress, and trademark laws, international conventions, or other relevant proprietary rights, intellectual property, and applicable laws. The only use of the Company IP will be through express prior written consent. We reserve all rights to the Company IP unless expressly granted to you in the Terms.

6.2 We grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to access and use the material on the Site for non-commercial purposes only. This license is subject to your compliance with the Terms. The sole purpose of this license is to allow you to access the Site and use our Services as permitted in these Terms. You agree to not alter, remove or obscure any proprietary notices on the material on the Site or any Company IP. It is not permissible to to modify, convert, clone, replicate, duplicate, adapt, copy, translate, reverse engineer, or otherwise manipulate our Services or the Company IP in any way. All rights not expressly granted in the Terms are reserved.

6.3 You may submit bug reports, ideas, comments, or other feedback regarding our Services, including how to improve our Services (collectively, “Feedback”). If you submit Feedback, you agree that we may use the Feedback at our discretion without any compensation to you, and to share any Feedback with third parties on a non-confidential basis. You grant us a perpetual, transferable, non-exclusive, irrevocable, worldwide license under any applicable laws for us to use and incorporate your Feedback however we choose.

1. Conduct
   

7.1 The following is a non-exhaustive list of examples of prohibited conduct that you may not, nor may you allow a third party to do: 

1. Breach the Terms or any referenced agreement in the Terms; 
2. Breach any statute, ordinance, regulation, or law; 
3. Infringe upon the Company IP or any third party patent, trademark, copyright, trade secret, or any other intellectual property rights or rights of privacy or publicity;
4. Create or control more than one Account for yourself without express permission from us. This includes, among other methods, using a temporary phone number or email address, using a name that is not yours, or providing any other false or misleading information;
5. Provide inaccurate, misleading, or false information;
6. Act in an unlawful, defamatory, harassing, abusive, libelous, obscene, fraudulent, or otherwise objectionable manner, including, but not limited to displaying content on our Site or transmitting content via our Services that contains violent or hate-related messages;
7. Send or receive what we or others could reasonably believe to be potentially fraudulently acquired BTC;
8. Use our Services or those of our partners in a way that results (or may result) in complaints (disputes, claims, reversals, or chargebacks); or fees, penalties, fines, or losses to us or our partners;
9. Distribute or assist in the distribution of viruses, Trojan horses, hoaxes, corrupted files, worms, defects, or any other programs or items of a destructive or deceptive nature; or otherwise interfere with, disable, circumvent, or attempt to interfere with, disable, or circumvent the Site or our Services, the proper functioning, security features, or equipment connected to the Sit or our Services;
10. Take any action that jeopardizes the services provided by our Internet service providers, payment processors, or other suppliers or service providers;
11. Send or otherwise transmit unsolicited commercial messages (e.g. spam), junk mail, chain letters, pyramid schemes, or similar materials or information through our Services;
12. Interfere with other users enjoying our Services;
13. Exploit our Services for any prohibited commercial use;
14. Frame or reformat any portion of the Site;
15. Use a spider, site search/retrieval application, robot, or any other device to retrieve or index any part of our Site or information on our Services, or to collect unauthorized information about other users;
16. Use metatage or other “hidden text” using any of our marks;
17. Use or access our Services with the purpose of developing a service or product that is competitive with our Services, including but not limited to our Services;

7.2 If you partake in any of the activities prohibited by Section 7.1, then we may, at our sole discretion, immediately suspend or terminate your Account and/or prevent you from accessing any of our Services, without notice to you and without limiting our rights or remedies at law or in equity. If we prevent you from accessing our Services, you will be responsible for all losses incurred. You are prohibited from using the Services in any way that is not expressly and unambiguously permitted by the Terms.

8. Third-Party Service Providers

8.1 Our Services are provided to you in conjunction with third-party service providers. Each third-party service provider will require you to agree to agreements with them. By using our Services you agree that you will comply with all third-party terms and conditions while using our Services. We have no responsibility for the products or services provided by third-party service providers, nor are we privy to the agreements you have with them. Nothing in these Terms represents an agreement between you and the third-party service providers. By agreeing to these Terms you acknowledge that we are responsible solely for the Services we provide and for the maintenance and support of said Services.

8.2 Any claims, losses, liabilities, costs, damages, or expenses attributable to failure of our Services covered by any warranty provided will be our responsibility and not that of any third-party service providers. 

8.3 Our third-party service providers are responsible for attending to any claims regarding the services they provide to you, including but not limited to (1) product liability claims; (2) claims arising under consumer protection, privacy, or similar legislation; (3) intellectual property claims; (4) claims that the Services fail to comply with any applicable legal or regulatory requirements.

9. Taxes

You are responsible for complying with all applicable laws and regulations relating to the use of the Services, including but not limited to, reporting obligations and payment of all applicable taxes. You are responsible for determining, remitting, withholding, filing, and reporting all taxes, duties, and other assessments associated with your use of the Services. You should consult the laws of your applicable jurisdiction.

10. Promotions and Referrals

We may operate promotions, contests, sweepstakes or other offer referral programs (“Promotions and Referrals”) that require you to submit information or material concerning yourself. Promotions and Referrals may be subject to separate rules concerning eligibility requirements, for example age or geographic location restrictions. You are responsible for complying with all rules and regulations relating to Promotions and Referrals and determining your eligibility to participate. By entering into a Promotion or Referral, you agree to comply with the rules of that Promotion and Referral. All Promotions and Referrals are optional so you may choose not to participate if you do not agree to comply with all applicable rules.

11. Your Representations and Warranties

By agreeing to the Terms and using our Services, you represent and warrant that:

11.1 Authority. You have all required power and authority to enter into this agreement and deliver the Terms, to purchase our Services, and to carry out and perform your obligations under the Terms. If you are an individual, you are at least eighteen (18) years of age and of sufficient capacity to purchase and use our Services. If you are an entity, you are organized and validly existing and in good standing under the laws of all jurisdictions in which you conduct business. 

11.2 No Conflict. Compliance with the Terms will not violate or be in conflict with: (1) any part of your governing documents (if applicable); (2) any part of an order, decree, or judgment to which you are bound or to which you are a party; (3) any agreement, duty, obligation, or commitment to which you are bound or you are a party; or (4) any rules, regulations, or laws that are applicable to you.

11.3 No Consents or Approvals. Agreement and execution of the Terms require no authorization or consent from any person or governmental authority other than you. 

12. Sanctions

We are obligated to comply with all applicable sanctions and trade restrictions, including those implemented by the Office of Foreign Assets Control (“OFAC”) of the United States Department of the Treasury. Neither we nor anyone making use of our Services may take part in transactions with parties or places designated by agencies like OFAC. Regardless of location, nobody may take part in transactions involving (1) geographic areas, such as Crimea, Cuba, Iran, North Korea, and Syria, or any individual or entity residing in one of these areas; (2) individuals or entities reported on sanctions lists like OFAC’s Specially Designated Nationals (SDN) List or Foreign Sanctions Evaders (FSE) List, including but not limited to, any digital currency addresses attributed to such individuals or entities; and (3) Cuban nationals, regardless of location, unless permanent residency or nationality outside of Cuba is proven. In order to ensure compliance with these sanctions, you will be prohibited from using your Account in certain geographic locations. If we find, or have reason to believe that you are using your Account from a sanctioned location listed above, or any other location found on an aforementioned list, or are found to be in violation of any other trade restrictions or economic sanctions, then we may terminate or suspend your use of our Services. Suspension or termination includes cancellation of any BTC purchases or withdrawals that are in progress at the time. You are not permitted to sell or make available for purchase any products or services that originate from sanctioned areas. This included any products or services that pre-date sanctions as we are unable to verify the date of removal from the sanctioned location. Besides complying with OFAC and all applicable local laws, you must comply with all international laws and trade restrictions of all jurisdictions when international transactions take place. In addition to monitoring your actions on our Services, our third-party service providers will monitor your actions using their services and they may block any transactions as part of their own sanctions compliance programs. We have no control or authority over these independent decisions. Economic sanctions and trade restrictions are subject to change and you must be up to date with current sanctions in place. Please consult a qualified professional for any legal advice you may need. 

13. Termination

You may terminate the Terms at any time by cancelling your Account with us and halting your use of and access to our Services. You may cancel your Account by sending us an email at aloha@cloudnalu.com. We may terminate the Terms and suspend or discontinue your Account and access to our Services at any time at our sole discretion for any or no reason. Suspension or termination of your Account and/or access to our Services may be without notice. We will not be liable to you or to any third party for any suspension or termination. If termination or suspension is due to a breach of the Terms or suspected illegal, fraudulent, or abusive activity, then termination or suspension will be in addition to any other legal remedies. Upon termination or expiration of the Terms or your Account by either you or us, you may no longer have access to the information stored in your Account and we are under no obligation to preserve such information in our databases or to forward the information to you or any third party. You will continue to have access to and all rights associated with any BTC custodied with the Custodian upon termination. Sections 6 through 18 will stay in effect beyond the expiration or termination of the Terms for any reason. 

14. Disclaimers

14.1 “As Is” and “As Available”. You understand and agree that your use of and access to our Services is at your sole risk. Our Services are provided “As Is” and “As Available” without guarantees, whether express or implied. To the fullest extent permitted by applicable law, the company and its members, managers, officers, employees, representatives, advisors, affiliates, and agents (“Company Parties”) make no express warranties and disclaim any implied warranties regarding any part of our Services (including, but not limited to our Services or external websites). This includes any implied warranties of merchantability, noninfringement, correctness, reliability, accuracy, or fitness for a particular purpose. The Company Parties do not warrant or guarantee that (1) access to our Services will fulfill your requirements; (2) your access and use of our Services will be timely, secure, uninterrupted, or error free; (3) data provided through our Services will be accurate; (4) any content, services, or features made available through our Services, or the Services themselves will be free of harmful components or viruses; or (5) data that you provide while using our Services will be secure. Certain jurisdictions do not allow the exclusion or limitation of implied warranties in contracts, so parts of this statement (14.1) may not apply to you. 

14.2 Personal Risks. You accept and acknowledge that there are inherent security risks associated with conducting business and providing information over the internet and our Site. You agree that we have no responsibility or liability for any security breaches unless they are due to our own gross negligence. You accept full responsibility for managing your own security and will implement reasonable and appropriate measures to protect access to (1) any device utilized in accessing or purchasing our Services; and (2) any username, password, or other login/identifying credentials. 

15. Limitation of Liability

15.1 You understand and agree that none of the Company Parties will be held liable to you or to any third party for any damages that you may incur, be they indirect, special, consequential, indirect, or exemplary, however caused and under any theory of liability, without limitation, any loss of data, loss of goodwill or business reputation, loss of profits (whether direct or indirect), cost of procurement of substitute goods or services, or any other loss be it tangible or intangible, even if we have been advised of the possibility of such loss or damage. 

15.2 You understand that we shall not be liable and we disclaim all liability to you in connection with any events out of our control, including but not limited to acts of God; labor disputes or industrial disturbances; software, electrical, hardware, telecommunications, or other utility failure; software or smart contract bugs or weaknesses; storms, earthquakes or other nature-related events; blockages; embargoes; pandemics; riots; acts of terrorism or war; acts or orders of government; technological change; and changes in interest rates or other monetary conditions. 

15.3 You acknowledge and agree that our total, aggregate liability to you for all claims you may bring forward arising from or relating to the Terms or your use or access of our Services (or lack thereof), whether in contract, strict liability, tort, or any other legal theory, is limited to either (1) the amount of fees you actually paid to us in the twelve (12) months prior to the date the claim arose, or (2) one hundred dollars (100 USD), whichever amount is greater. 

15.4 You acknowledge and agree that the Company and you have entered into an agreement based on the warranty disclaimers and limitations of liability set forth in these Terms, which reflect a reasonable and fair allocation of risk between you and the Company. 

15.5 Some jurisdictions do not allow the limitation or exclusion of incidental or consequential damages, and some jurisdictions limit disclaimers or limitations of liability for personal injury from consumer products. The above limitations may not apply to personal injury claims. 

16. No Responsibility for Transactions with the Custodian

We bear no responsibility for any transaction that occurs between you and the Custodian. We will not be liable for your losses or damages if any loss occurs regarding the USD or BTC custodied on your behalf by the Custodian.

17. Indemnification

17.1 To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless, and to reimburse the Company Parties from and against any and all actions, claims, damages, demands, actions, and proceedings (including fees and expenses of counsel), incurred by a Company Party arising from or relating to (1) your use of our Services and/or Site; (2) your obligations or responsibilities under the Terms; (3) your violation of or breach of the Terms; (4) any inaccuracy in any of your warranties or representations; (4) your violation of any rights of any person or entity, including privacy or proprietary rights; (f) your violation of any law or regulation; and/or (5) any of your actions or omissions that are unlawful, negligent, or constitute willful misconduct. 

17.2 The Company reserves the right, at your expense, to exercise sole control over the defense, of any claim subject to indemnification under this Section 17. This indemnity is in addition to any other indemnities presented in written agreement between you and the Company.

1. Dispute Resolution
   

Please read the following ARBITRATION AGREEMENT carefully because it limits the manner in which you can seek relief and requires you to arbitrate all disputes with us. 

18.1 You and the Company agree to resolve any dispute, claim, or controversy arising out of or relating to the Services or the Terms through confidential, final, and binding arbitration. 

18.2 The interpretation and enforcement of this dispute resolution provision is governed by the Federal Arbitration Act. Arbitration shall be initiated through the Judicial Arbitration and Mediation Services, Inc. (“JAMS”). Any arbitration shall be conducted (1) confidentially, (2) in English, (3) by JAMS, (4) before a single arbitrator with substantial experience in resolving commercial contract disputes, (5) in accordance with the JAMS Comprehensive Arbitration Rules & Procedures; and (6) in Los Angeles County, California. Payment of all arbitrator, administrative, and filing fees shall be governed by the JAMS Rules. Any judgement on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 

18.3 TO THE EXTENT PERMISSIBLE BY LAW, THE PARTIES WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, INSTEAD ELECTING THAT ALL DISPUTES AND CLAIMS BE RESOLVED BY ARBITRATION. Arbitration procedures are typically less expensive, more efficient, and more limited than court proceedings and are subject to limited review by a court. In the event that litigation should arise in any state or federal court, whether in a suit to vacate or enforce an arbitration decision or otherwise, you and the Company waive all rights to a jury trial, instead electing that the dispute be decided by a judge, to the fullest extent possible by law. You acknowledge that you have been advised that you may consult with an attorney in deciding to accept these Terms. 

18.4 You may not bring a claim as a plaintiff or class member in a class, consolidated, or representative action, and may only resolve disputes with us on an individual basis. We do not allow class actions, private attorney general actions, class arbitrations, or consolidation with other arbitrations. To the extent permitted by law, all disputes and claims must be brought in a party’s individual capacity, and not as a plaintiff or class member in any collective action, class, or representative proceeding. Claims of more than one user or customer cannot be litigated or arbitrated jointly. Neither the arbitrator nor the claimant may consolidate more than one person’s claims or engage in any joint litigation or class arbitration. You agree and acknowledge that you are waiving any right to participate in any purported class action or representative proceeding as a plaintiff or class representative. 

18.5 The Terms shall be governed by and construed in accordance with the laws of the state of Hawaii, without regard to its conflict of laws provisions.

1. External Sites
   

You may encounter hyperlinks or redirects to other websites or resources (“External Sites”) on our Site or other Services. These External Sites are provided as a convenience to you and we have no control over any of them. You agree and acknowledge that we do not endorse any products, services, advertisements, or other materials made available on these External Sites, nor are we responsible for the availability of them. In addition, you acknowledge and agree that we are not liable for any damage or loss that may result from the availability or unavailability of the External Sites, or that may result from any reliance by you on the accuracy, completeness, or existence of any products, services, or advertising, found on any External Sites. 

1. Entire Agreement
   

The entire agreement between you and us in relation to our Services, are constituted by these Terms and our Privacy Policy. These documents supersede all prior written and oral agreements, communication, and any other understanding relating to the Terms. Your agreement with the Custodian is not altered by these Terms. If there is a conflict between these Terms and those of the Custodian, the other agreement will control only if these Terms are specifically stated to be overridden.

1. Privacy Policy
   

For information regarding the collection, use, disclosure, and storage of your personal information please refer to the Privacy Policy. You agree to the collection, use, disclosure, and storage of your personal information as laid out in the Privacy Policy.

1. State Notices
   

In addition to reporting complaints or requesting information about your Account with us or our Services by emailing us at aloha@cloudnalu.com, if you are a California resident, then you may report complaints to the California Department of Business Oversight (1) by mail at Department of Business Oversight, Attn: Consumer Services, 1515 K Street, Suite 200, Sacramento, CA 95814, (2) online through its website at http://www.dbo.ca.gov/Consumers/consumer_services.asp, or (3) by phone at 866-275-2677.

For Hawaii Residents and Institutions, we are required to provide this notice to you upon using our services. As a participant of the Hawaii Digital Currency Innovation lab, Cloud Nalu is subject to the terms of the regulatory sandbox, created in partnership with Hawaii Technology Development Corporation and the Hawaii Department of Financial Institutions.  Cloud Nalu LLC is providing services to you as a participant in this special Hawaii project which ends on December 31, 2022. At the end of the project term, Cloud Nalu LLC may or may not be required to close all accounts for Hawaii customers and cease operations. Cloud Nalu LLC will notify Hawaii customers in advance if accounts must be closed. Customers may withdraw, transfer, or keep their digital assets and fiat dollars with our 3rd party Custodian, Prime Trust. Hawaii customers who choose to open accounts with Cloud Nalu LLC are advised that the virtual currency or digital currency purchased, whether as an investment, for making payments, or other purposes, may lose value, including the loss of some or all of your original purchase amount.