Customers accessing the ‘Elbaite’ platform in or from Australia will be contracting with Elbaite Pty Limited (ABN 88 623 185 875) which owns and operates a registered DCE (Digital Currency Exchange) in Australia, hereinafter referred to as “we”, “us”, “our” or “Elbaite”.
In these Terms and Conditions the following terms, unless the context otherwise indicates, will have the following meanings:
AML Act means the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and all associated regulations and rules.
AML Policy means the policies and programs maintained by Elbaite to comply with the AML Act.
AUD means the fiat currency known as Australian Dollars.
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria, Australia.
Buyer means a User or Client that purchases Cryptocurrencies through the Elbaite Platform.
Client Escrow Account means Elbaite’s account to which a Client transfers AUD currency for the settlement of Cryptocurrencies bought through the Elbaite Platform.
Regulator means AUSTRAC or such other relevant government authority.
Dispute means a dispute, controversy or claim between any of the parties as to:
Elbaite Platform shall mean and include Elbaite Web app app.elbaite.com (“Web version”) and Elbaite website www.elbaite.com (“Elbaite Website”) and other web assets on the Elbaite.com domain. Collectively along with the secure authentication for Elbaite Users is referred to as the “Elbaite Platform”.
Elbaite Services means the services made available from time to time on the Elbaite Platform, including the non-custodial cryptocurrency exchange.
Force Majeure shall mean and include any cause arising from or attributable to acts, or events, beyond the reasonable control of Elbaite, including natural calamity, strikes, terrorist action or threat, civil commotion, riot, crowd disorder, invasion, war, threat of or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, structural damage, epidemic or other natural disaster, calamity, attacks including through computer viruses, hacking, denial of service attacks, ransomware or other manmade disruptions or any law, order enactment, statutory direction, legislation, regulation, rule or ruling of government or any court of law or of a Government or regulatory authority.
Information includes but is not limited to designs, drawings, diagrams, illustrations, photographs, pictures, text, graphics, etc. protected by copyright.
KYC means Know Your Customer requirements under the AML CTF Act 2006 (Cth).
Seller means a User or Client that sells Cryptocurrency through the Elbaite Platform.
Terms and Conditions mean this agreement.
Cryptocurrency has the same meaning as “digital currency” as defined in the AML CTF Act 2006 (Cth) and includes any other token or cryptocurrency that Elbaite elects to list on the Elbaite Platform.
User or Client persons availing of the Elbaite Services directly or indirectly.
Trading in Cryptocurrency involves a high degree of risk to your capital. Cryptocurrencies may not be appropriate for all Users and Users should seek independent advice if necessary. Trading with Cryptocurrencies may result in a total loss of your investment.
All Users of the Elbaite Platform must understand that there are risks involved in the usage of the Elbaite Platform. Elbaite encourages all users to exercise prudence and trade responsibly.
These Terms and Conditions constitute an agreement between the Client and Elbaite as the operator of the Elbaite Platform and provider of Elbaite Services.
As this is a legally binding contract, the Client is required to carefully read through these Terms and Conditions and related notices before using any of Elbaite’s Services.
The use of our website to access the Elbaite Platform, Elbaite Services, our apps, and any of our content on any computer, mobile phone, tablet, console or other device is subject to these Terms and Conditions.
If any Client disagrees with these Terms and Conditions, the Client must not proceed to initiate account registration with Elbaite or seek to acquire any of the Elbaite Services.
To be eligible to access Elbaite’s Site and use Elbaite’s Services, the Client represents and warrants that they:
By accessing and using the Elbaite Platform, the Client acknowledges and declares that they are not on any trade or economic sanctions lists, such as the United Nations Security Council Sanctions List and its equivalent. You may not use Elbaite Services provided on the Elbaite Platform to engage in the following categories of activity (“Prohibited Uses”). The specific types of use listed below are representative, but not exhaustive:
We accept no liability for any fraudulent or illegal activity conducted via the Elbaite Platform by you or any other third party appointed by you.
Prohibited users are not to use or access the Elbaite Platform.
As Elbaite operates a non-custodial exchange, the Client must apply for and open a wallet capable of holding cryptocurrencies and exchanging cryptocurrencies prior to the commencement of trading on the Elbaite Platform.
Any wallet used to buy and sell cryptocurrency via the Elbaite Platform must be acquired by the Client and managed by the Client. Elbaite does not hold your cryptocurrency in a centralised wallet.
Elbaite shall be authorised to act upon any digital instructions transmitted by the Client. In this regard, Elbaite will be entitled to carry out any instructions or orders as per the Client’s instructions.
When a User uses the Elbaite Services on the Elbaite Platform to purchase cryptocurrencies, the User acknowledges that:
Elbaite charges a 1.1% fee of the AUD purchase price, including applicable taxes, to Buyers for facilitating the purchase of cryptocurrencies through the Elbaite Platform. Cryptocurrency network fees, e.g. for transferring BTC or ETH, occur outside the Elbaite Platform.
When a User uses the Elbaite Services on the Elbaite Platform to sell cryptocurrencies, the User acknowledges that:
Elbaite strives to maintain the accuracy of information posted on the Elbaite Platform however it cannot guarantee the accuracy, suitability, reliability, completeness, performance or fitness for the purpose of the content through the Elbaite Platform and, to the maximum extent permitted by law, will not accept liability for any loss or damage that may arise directly or indirectly from the content.
Information on Elbaite’s Platform can be subject to change without notice and is provided for the primary purpose of facilitating Users to arrive at independent decisions. Elbaite does not provide specific or general financial/cryptocurrency advice or recommendations.
While Elbaite emphasises online interface security to ensure the continuity and security of its services (announcements will be made in the event of downtime/maintenance), it will be non-accountable to Users for an act of God, Force Majeure, malicious targeted hacking, terrorist attacks and other unforeseen circumstances.
All Users must not use any anonymous network or protocol to access the Elbaite Platform. You will not access the Elbaite Platform by any means other than the interfaces we provide for doing so.
Elbaite reserves the right to cancel, rollback or block transactions of all types on its platform in the event of abnormal, suspicious or fraudulent transactions or based on its internal AML Policy.
Elbaite will not ask for any password from its users except for Users to login to the Elbaite Platform and use Elbaite’s Services.
By using the Elbaite Platform and Elbaite’s Services, the Client declares that all information provided by the Client to Elbaite is true, accurate and complete.
All relevant AUD settlements made by Clients into the Client Escrow Account shall be kept separate from money belonging to Elbaite, unless and until such amounts are returned to the Client or are transferred to a Seller on the Elbaite Platform or become due and payable to Elbaite in accordance with these Terms and Conditions or are otherwise paid away or transferred in accordance with applicable law and regulations.
By accepting these Terms and Conditions, the Buyer provides Elbaite the authority to transfer to the relevant Seller (of cryptocurrency to the Buyer), any AUD settlement amount paid by the Buyer into the Client Escrow Account in consideration for that purchase.
We are required by law to adopt and maintain an Anti-Money Laundering and Counter-Terrorism Financing (AML/CTF) program to identify, mitigate and manage money laundering and terrorism financing risks.
This requires Us to identify and verify the identity of customers for whom we act in exchange of AUD transactions for the purchase or sale of digital currencies. We may also be required to report to AUSTRAC suspicious matters or transactions.
We are required by various Commonwealth laws which regulate AML/CTF matters to retain records for as long as you trade with Us and for up to seven years after your trading with Us ceases. You acknowledge that you are willing to comply with all requests for information from Us (including but not limited to the matters set out in clauses 8.1, 8.2 and 8.3 below) required to satisfy these legal obligations.
In addition to providing this information, to facilitate compliance with global industry and government legislated standards for data retention, the Client acknowledges Elbaite must by law keep a record of such information for the lifetime of the Client’s engagement on the Elbaite Platform plus 7 (seven) years after ceasing.
The Client also authorises Elbaite to make inquiries, either directly or through third parties, that are deemed necessary to verify the Client’s identity or to protect the Client and/or Elbaite against financial crimes such as fraud, and misappropriation.
Elbaite must adhere to KYC requirements. Elbaite may undertake remote KYC procedures and video onboarding. This may include biometric identification.
The KYC procedures may be created or undertaken by any Elbaite appointed service provider (such as a third-party KYC service provider) possessing all the relevant and necessary credentials to conduct the KYC and due diligence in accordance with the AML CTF Act 2006 (Cth) and our AML Policy.
The Client is bound to follow all on-screen instructions and adhere to all requirements that emanate from the onboarding within the Elbaite Platform.
All Users must sign up to the Elbaite Platform before using the Elbaite Platform via our standard application procedure. To sign up, the Client must provide their real name in full, email address and such other requested information including valid identification documents.
Elbaite reserves the right to not provide Elbaite Services at all, or limit the scope of Elbaite Services to Users who cannot verify their identity and/or set up a necessary level of security and/or failed to prove sufficient requested documentation.
Where Elbaite is required under applicable law and regulations to report transactions with the Client to a Regulatory Body or otherwise, the Client must obtain and provide Elbaite with any information as Elbaite may require. The Client shall not be permitted to place orders unless and until it has provided the information required.
Elbaite may, in its sole discretion and without liability to you, with or without prior notice:
The Client shall be solely and fully responsible for any loss or expenses incurred by the Client during the use of Elbaite Service if the Client cannot be reached through the contact information provided by the Client.
The Client hereby acknowledges and agrees that they have the obligation to keep all information provided to Elbaite up to date if there are any changes.
Elbaite may or may not accept an application to become a Client in its absolute discretion, including if the Client fails to pass the relevant appropriateness checks. If the Client's application is accepted by Elbaite, the Client shall be notified.
Any crediting or debiting of the Client Escrow Account is net of any bank fees, commissions or other charges or costs (including any applicable taxes, including withholding taxes) and you hereby expressly authorise Elbaite to make any such deductions.
Elbaite may receive interest in respect of the Client Escrow Account but will not pay any portion of such amounts to the Client. The Client hereby waives any right to receive interest on any positive balance of the Client Escrow Account.
The Client Escrow Account shall be denominated in Australian dollars only.
Elbaite will only pay AUD to the Client’s registered bank account. If the Client has notified a change in their payment details in writing, in advance, is verified as being the same party (the Client) and this is in compliance with applicable law and regulations then we will make that payment to that changed account. Third party payments will not be made.
The Client shall be solely responsible for the safekeeping of all information relating to the Client’s logins and password for the Elbaite Platform.
The Client hereby covenants that the Client:
Elbaite will not be responsible for any loss or consequences caused by the Client’s failure to comply with the above terms and conditions.
The Client will not use the Elbaite Platform for the purpose of obtaining, processing, distributing, viewing, assessing, analysing, copying or replicating any information, methods or processes related to the Elbaite Platform (including without limitation by way of data scraping, the use of collection or accumulation tools and robotic or scripted responses). This is also includes (but not limited to) that;
If the Client violates any of the provisions of these Terms and Conditions and thereby causes any legal consequence, the Client shall independently undertake all of the legal liabilities in the Client’s own name and indemnify Elbaite from all actions, claims, losses or costs arising from such violation;
The Client will not use any data or information displayed on the Elbaite Platform for commercial purposes without the prior consent of Elbaite.
By accessing the Elbaite Service, the Client agrees that Elbaite shall have the right to unilaterally determine whether the Client has violated any of the above covenants and take action without receiving the Client’s consent or giving prior notice to the Client. Examples of such actions include, but are not limited to:
The Client consents to the Elbaite Platform’s KYC checks and procedures and under no circumstance may Elbaite refund any money or grant access to the Elbaite Platform before all necessary procedures have been vetted and consent is formally authorised for the Client to access the Elbaite Platform.
Without prejudice to the aforesaid, any funds which are kept in the Client Escrow Account will be ‘frozen’ until the relevant procedures are completed and under no circumstance may they be ‘exchanged’ or ‘withdrawn’.
If the Client’s alleged violation causes any losses to a third-party, you shall solely undertake all the legal liabilities in your own name and hold Elbaite harmless from any loss, fine or extra expenses. If, due to any alleged violation Elbaite incurs any losses, is claimed by any third party for compensation or suffers any punishment imposed by any administrative authorities, the Client will indemnify Elbaite against any losses and expenses caused thereby, including legal fees on a full indemnity basis.
In case of any abnormal behaviour, fluctuation or delay in transactions beyond Elbaite’s control then for such instances Elbaite is not liable to the Client.
In the event of a dispute with us please access our Complaints Policy.
Elbaite grants you a non-exclusive, revocable, non-transferable licence to use the software on a server controlled by us for the sole purpose of accessing and obtaining the material on the Elbaite Platform.
Elbaite will provide access to the Elbaite Platform on an “as is” and “commercially available” condition and to the maximum extent permitted by law does not offer any form of warranty with regards to the Elbaite Platform’s reliability, stability, accuracy and completeness of the technology involved. The Elbaite Platform serves merely as a venue for transactions where general cryptocurrency information can be acquired, and cryptocurrency transactions can be conducted.
Elbaite Pty Ltd (Elbaite) is not a financial adviser. The employees, officers and directors at Elbaite do not give advice, either general or specific.
You should consider seeking independent legal, financial, taxation or other advice regarding your use of the Elbaite platform or any other services you utilise as a customer of Elbaite. You are responsible for ensuring any advice is from a registered or authorised advisor. Be on notice that social media is flooded with fake recommendations and news about cryptocurrency, Elbaite will not contact you through any of these channels.
Elbaite is not liable for any loss caused, whether due to negligence or otherwise arising from the use of, or reliance on, the information provided directly or indirectly, by use of our website or other written material from Elbaite.
The Elbaite Platform and the Information contained within are protected by copyright. The Information is the property of Elbaite, or third parties that have allowed Elbaite to publish the copyrighted Information.
The trademarks, service marks and logos of Elbaite are the property of Elbaite and its respective owners. The software, text, images, illustrations, data compilations, graphics, data, prices, trades, charts, graphs, video and audio used on the Elbaite Platform and anything additional relating to Elbaite Services belongs to Elbaite and should not be copied, reproduced, modified, republished, uploaded, posted, transmitted, scraped, collected or distributed in any form or by any means, whether manual or automated.
If a Client has a dispute with one or more users of the Elbaite Platform, the Client agrees that neither we nor our affiliates or service providers, nor any of our respective officers, directors, agents, joint venturers, employees and representatives will be liable for any claims, demands and damages (actual and consequential) of any kind or nature arising out of or in any way connected with such disputes.
Elbaite will not be liable for any loss caused to the Client due to the discontinuation of any cryptocurrency that is being offered through the Elbaite Platform.
Elbaite shall not be liable for any disruption of service, whereby the User is denied access to the Elbaite Platform.
Elbaite shall not be liable for any loss caused to the User through loss of any monetary amount held in the Client Escrow Account for any reason whatsoever, save and except due to a wilful and malicious commission or omission by Elbaite directly resulting in such loss.
Elbaite shall not be liable for any discontinuation, alteration, suspension or termination of any part of the services offered on the Elbaite Platform caused or occasioned by any Force Majeure event or any change in applicable Law with respect to cryptocurrencies.
Elbaite shall not be liable for any damage, loss or cost suffered by Users (or any person) as a result of Users directing Elbaite to transfer AUD to an incorrect bank account.
Elbaite shall not be liable for the transferring of cryptocurrencies to Buyers on the Elbaite Platform.
In the event a Seller sends the Cryptocurrency bought by the Buyer to the wrong wallet (not in accordance with the instructions provided by the Buyer):
In the event a Buyer provides the incorrect wallet information to the Seller and the Seller transfers the Cryptocurrency to the wallet in accordance with the Buyer’s instructions, the Seller will not be considered at fault and payment (AUD) will be released to the Seller.
If the value of the cryptocurrency sent by the Seller is less in value than what was intended by the transaction, Elbaite will request that the Seller send the balance in order for the payment (of AUD) to be released to the Seller. Payment will only be released to the Seller if/when the whole of the value intended to be transferred is transferred.
If the value of the cryptocurrency sent by the Seller is in excess of what was intended by the transaction, Elbaite will pay (in AUD) the Seller the amount which the Buyer had agreed to pay and will request that the Buyer return the cryptocurrency which was in excess of what the transaction contemplated. Once Elbaite has made the request to the Buyer, and despite the outcome of the request, noting that Elbaite cannot force a Buyer to return the cryptocurrency, Elbaite will cease to have any involvement in the matter.
Elbaite shall not be liable for any damage, loss or cost suffered by Users (or any person) as a result of unauthorised use of a User’s account on the Elbaite Platform or any failure of security measures.
Elbaite shall not be liable for any damage, loss or cost suffered by Users (or any person) as a result of unauthorised use of a User account including an unauthorised instruction or any failure or lack of security measures.
An inability to perform our obligations under these terms due to factors beyond Elbaite’s control, including Force Majeure events.
The User shall not be entitled to any damages for any reason whatsoever including for consequential or compensatory damages against Elbaite for any reason including suspension, cancellation or termination of the User account or for cessation of any or all services on the Elbaite Platform.
The User shall only be entitled to refund/recovery of the AUD currency being held in the Client Escrow Account, subject to deductions of amounts owed to Elbaite and other legal, regulatory or statutory dues or those stipulated under applicable law, and to the permissibility of such refund or recovery under applicable law.
All cryptocurrency purchases are final and there are no refunds or cancellations, except as otherwise provided in these Terms and Conditions or as required by law. Elbaite does not have the ability to facilitate any cancellation requests, and therefore all cryptocurrency purchases are irreversible.
At no point in time will Elbaite, its directors, shareholders, employees, representatives, officers, affiliates or assigns be held liable for any claims whatsoever for cessation of services or termination of any part of the Elbaite Platform or any disruption with respect to access to the Elbaite Platform.
In the event that a User has received, acquired, or accumulated any cryptocurrencies or assets due to an error, glitch or loophole, Elbaite may take reasonable actions to recover the funds or assets. Elbaite will notify Users if such an error has occurred on the basis that Users agree that it is Elbaite’s right to recover the misappropriated funds or assets.
To the maximum extent permitted by law, THE MAXIMUM CUMULATIVE LIABILITY OF ELBAITE IN ANY EVENT, FOR ANY CLAIM, DAMAGES, TORT SHALL BE LIMITED TO THE FEES FOR THE SERVICES RENDERED BY ELBAITE IN RELATION TO THE APPLICABLE TRANSACTION TO WHICH THE CLAIM RELATES. IF THE CLAIM DOES NOT RELATE TO ANY TRANSACTION IN PARTICULAR, THEN ELBAITE’S MAXIMUM CUMULATIVE LIABILITY SHALL BE LIMITED TO THE FEES RECEIVED FROM THE USER, AS CONSIDERATION OR FEES FOR THE SERVICES RENDERED BY ELBAITE IN RELATION TO THE TWO TRANSACTIONS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM IS MADE BY THE USER.
Elbaite will not be liable for any breach of these Terms and Conditions where the breach is due to abnormal and unforeseeable circumstances beyond Elbaite’s control, the consequences of which would have been unavoidable despite all effects to the contrary, nor is Elbaite liable where the breach is due to the application of mandatory legal requirements.
In addition to the liability cap above, in no event shall Elbaite, our affiliates or our service providers, or any of our or their respective officers, directors, agents, employees or representatives, be liable for any of the following types of loss or damage arising under or in connection with these Terms and Conditions or otherwise:
14.5. Termination of this agreement
In case of any of the following events, Elbaite shall have the right to directly terminate these Terms and Conditions by cancelling the Client’s user account on the Elbaite Platform, and shall have the right to permanently freeze (cancel) the authorisations of the Client’s Escrow Account:
Should the access to the Elbaite Platform be terminated, the transactional information required for meeting data retention standards will be securely stored for seven years. In addition, if a transaction is unfinished during the account termination process, Elbaite shall have the right to notify the Client’s counterparty of the situation at that time.
Elbaite maintains full custody of the AUD and User data/information which may be turned over to the authorities in event of account suspension/closure arising from fraud investigations, AML investigations or violation of the law or Elbaite’s Terms and Conditions (e.g. trading on Elbaite from a sanctioned country).
It is the responsibility of the User to abide by local laws in relation to the legal usage of Elbaite Services.
All users of the Elbaite Platform and any of Elbaite’s Services acknowledge and declare that the source of their funds come from a legitimate manner and are not derived from illegal activities. Elbaite maintains a stance of cooperation with law enforcement authorities globally and will not hesitate to seize, freeze, terminate the AUD of any User in their Client Escrow Account which are flagged or investigated by legal mandate.
To the maximum extent permitted by law Elbaite shall not be liable for any loss caused to User due to a data breach of confidential information of the User, including of the User account details or User password, including when such breach has occurred due to the User sharing such details with third parties or due to the User’s failure to follow reasonable due diligence. Elbaite shall also not be liable or responsible for any disclosure by User of any User account details, including on account of a phishing attack or other third-party disruption.
Elbaite processes all personal information in accordance with applicable law and regulations relating to the processing, privacy, and use of personal information.
Elbaite may collect, hold and process personal information about the Client from the way in which the Client engages with Elbaite (such as by ﬁlling in the application, placing orders, or if the Client contacts Elbaite by post, email, telephone, in person or by any other means), through the Client’s interactions with Elbaite and/or the Elbaite Platform.
All payments to be made under these Terms and Conditions must be made in AUD by the following method: EFT (Electronic Funds Transfer) to the bank account specified by Elbaite.
A party may not assign or otherwise deal with any of its rights or obligations under these Terms and Conditions without the prior written consent of each other party that must not be unreasonably withheld. However, Elbaite may, without the consent of the User assign its rights under these Terms and Conditions in the case of the sale of all or part of the Elbaite Platform.
Elbaite reserves the right to modify or change these Terms and Conditions at any time and at its sole discretion. Elbaite will provide reasonable notice of these changes to Users and will modify or change the terms by updating the Terms and Conditions.
Any and all modifications or changes to the Terms and Conditions will be effective on the date noted in the notice provided to Users. As such, your continued use of Elbaite Services acts as acceptance of the amended Terms and Conditions. If the User does not agree with any such modification or change, then the User should cease using the Elbaite Platform.
No failure to exercise or delay in exercising any right given by or under these Terms and Conditions to a party constitutes a waiver and the party may still exercise that right in the future.
Waiver of any provision of these Terms and Conditions or a right created under it must be in writing signed by the party giving the waiver and is only effective to the extent set out in that written waiver.
If any provision of these Terms and Conditions is void, voidable by a party, unenforceable, invalid or illegal and would not be so if a word or words were omitted, then that word or those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms and Conditions without affecting the validity or enforceability of the remaining provisions of these Terms and Conditions.
On completion or termination of the transactions contemplated by these Terms and Conditions, the rights and obligations of the parties set out in these Terms and Conditions will not merge and any provision that has not been fulfilled remains in force.
Each party agrees to promptly do all things reasonably necessary or desirable to give full effect to these Terms and Conditions, including obtaining consent and signing documents.
Time is of the essence in these Terms and Conditions.
These Terms and Conditions contain the entire agreement between the parties about their subject matter and supersede all previous communications, representations or agreements between the parties on the subject matter.
These Terms and Conditions are governed by the laws of Victoria, Australia.
The parties submit to the non-exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia and any courts that may hear appeals from those courts about any proceedings in connection with these Terms and Conditions.
Last Updated: November 2023