Terms of Service

Immutable Passport - Terms and Conditions

1. Introduction

1.1 These Passport terms and conditions (“Passport Terms”) govern the relationship between Immutable Pty Limited (“we”, “us” or “our”) and its group companies in connection with our offer of Passport to end users of Passport (“Users”, “you” or “your”). By accessing or continuing to use Passport, you agree to abide by these Passport Terms as updated and amended from time to time, and if you do not agree with any of the Passport Terms, you should cease using Passport. These Passport Terms supplement our Privacy Policy, which the User hereby acknowledges they have read and understood.

1.2 To the extent that these Passport Terms conflict with any other applicable terms, these Passport Terms will prevail.

1.3 Passport is a non-custodial wallet and authentication solution. Passport operates on blockchain technology and is underpinned by public and private key cryptography. Your use of Passport involves various risks, including losses relating to Digital Assets. Passport may be integrated by a third party service (“Third Party Services”), such as a software application (e.g. a game) built on the Immutable platform. Before you use Passport you should read the documentation explaining how to use Passport and associated services.

2. Overview of Passport services

2.1 Your use of Passport will be subject to these Passport Terms, unless otherwise agreed in writing. If you engage any Third Party Services, those services may be subject to the third party’s own terms and conditions which are separate to these Passport Terms.

2.2 We offer Passport to Users on an exclusive basis. Users will be considered to be using Passport by:

(a) creating a Passport Account;

(b) connecting your Passport Account to a Third Party Service; or

(c) accessing any of the services available through Passport whether available through us, our Affiliates or third parties, (together “Engagement” or “Engage”).

3. Passport Access

3.1 Access to Passport is available through the Websites but may also be made available through Third Party Sites, including our Affiliates’ websites, who provide Passport as an integrated component to their services.

3.2 Passport is provided for your personal, non-commercial use only. You may not use Passport, or any of its functions, to further any unauthorised commercial purpose, including any advertising or advertising revenue generation activity on your own website without express, prior written consent.

4. Acknowledgements

4.1 You acknowledge and agree that:

(a) we provide Passport solely on a proprietary basis of our own account and if we transact with you, we do so solely on a bilateral basis;

(b) Passport is a non-custodial wallet solution and we do not take custody of your Digital Assets or any other assets in providing the Passport service;

(d) we are not providing and will not provide fiduciary, advisory, brokerage, exchange, custody, trust or other similar services to you, or in connection with any transaction subject to these Passport Terms;

(e) you are solely responsible for any decision to create a Passport Account subject to these Passport Terms, including the evaluation of any and all risks related to such creation including the compatibility with the provider of your selected authentication and login method, and we do not make any representations or warranties as to the security or availability of cryptographic wallets, or that your access will be uninterrupted, timely or secure at all times;

(f) you are responsible for maintaining adequate security and control of your selected authentication and login method (e.g. your email or social accounts), any and all passwords, hints, non-custodial wallet keys, 2-factor authentication devices or backups, or any other codes that you use to access your Passport Account. Any loss of access to, or loss or compromise of the foregoing information and/or your personal information may result in oss of access to your Passport Account and/or unauthorised access to your Passport Account by third-parties and the loss or theft of your assets;

(g) a significant degree of technical sophistication is required to safely deal in cryptographic wallets;

(h) we are not responsible for any loss caused by your failure to act in accordance with our policies, procedures or reasonable directions;

(i) we do not guarantee any outcomes, return (financial or otherwise) or tangible benefit to you from using Passport; and

(j) Passport may be made available to you through our Affiliates or other Third Party Sites. We provide Passport to you ‘AS-IS’ and at your own risk and without warranties of any kind. No developer or entity involved in creating Passport, including Immutable and its Affiliates, will be liable for any Loss or Claim whatsoever associated with your use, inability to use, or your interaction with Passport or other users of Passport, including any Consequential Loss or loss of cryptocurrencies, tokens, or anything else of value.

5. Pre-Approved Transactions

5.1 Certain third party applications that have integrated Passport may have enabled Pre-Approved Transaction functionality. This means that as a Passport user, when you engage in certain transactions that we have deemed low risk (e.g. crafting), you may be asked to confirm the transaction as part of the third party application experience (i.e. in-app) but you will not be asked to confirm the transaction as part of a separate Passport experience (i.e. out-of-app); in other words, you pre-approve such low risk transactions. This feature has been introduced to reduce transaction friction and improve user experience for certain low-risk transactions.

5.2 By agreeing to use Passport, you acknowledge and agree to the use of Pre-Approved Transaction functionality where applicable. As with any blockchain transaction, you also acknowledge that transactions confirmed using the Pre-Approved Transaction functionality may involve transaction costs, including but not limited to blockchain network or gas fees. If you do not agree to the use of Pre-Approved Transaction functionality then you should immediately cease using Passport.

5.3 While all care has been taken in the design and roll out of Pre-Approved Transaction functionality, Immutable and its Affiliates, to the maximum extent permitted by law, do not accept responsibility for any Loss (including Consequential Loss), however caused and whether or not foreseeable (whether in contract, tort, for breach of statutory duty or otherwise), even if we have previously been advised of the possibility of such loss or damage which you may directly or indirectly suffer in connection with your use of Pre-Approved Transaction functionality.

6. Termination

6.1 Termination by convenience: you may terminate this Agreement for any reason by ceasing to use the Passport service.

6.2 Termination with cause

(a) We may terminate a User’s right to access Passport with immediate effect:

(1) if your use of Passport presents a security risk or could adversely impacts our systems or services;

(2) if any of the warranties in clause 7.1 are breached;

(3) if you commit any material breach of your obligations under these Passport Terms, and you fail to remedy such breach (if capable of remedy) within 30 days of receipt of notice from us;

(4) if our relationship with any third-party partner who provides technology we use to provide the Passport service expires, terminates or requires us to change the way we provide the Passport service; or

(5) if your use of Passport could subject us or our Affiliates to any third party liability; and/or

(6) in order to avoid violating any Applicable Law.

6.3 Effect of termination

Termination of these Passport Terms does not affect the rights of the parties which have accrued prior to the termination. Subject to the foregoing, upon termination all your rights under these Passport Terms immediately terminate. If we terminate your Passport Account, we may liaise with third parties, including our Affiliates, to terminate any access or material you may have through the Third Party Services which involves a Passport Account.

7. Warranties

7.1 User warranties

(a) You warrant and assure us that:

(1) you are sufficiently experienced and educated in the operation of, and dealing with, digital wallets to make decisions regarding the operation of digital wallets;

(2) you have all necessary experience, resources, certificates, licenses, permits and approvals to procure or create a Passport Account, and to meet all other obligations under and in accordance with these Passport Terms and all Applicable Laws;

(3) any Engagement with Passport is undertaken at your own risk and we will not be liable for any Loss of any kind including Consequential Loss and including any loss of Digital Assets from your Passport Account arising from any loss of access to your selected authentication and login method (e.g. your email or social accounts), breach of security or unauthorised access or unexpected operation of any smart contracts;

(4) none of the activity in which you Engage with Passport is derived from or for any illegal or unlawful purpose. You will substantiate the source of, or purpose of, interactions with Passport if requested by us;

(5) you are the lawful owner of each Passport Account and each Passport Account is owned and operated solely for your benefit, and no other person or entity has any right, title or interest in any Passport Account, unless otherwise agreed with us in writing;

(6) you have full legal capacity to access Passport in your jurisdiction of residence. If you do not have full legal capacity in your jurisdiction of residence, you can only access Passport with the consent of or under the supervision of your parent or legal guardian;

(7) you have sole control of any third party communication channel used to communicate and interact with Passport and you have secured the password(s) and credentials for accessing that Third Party Service;

(8) you will only use a Passport Account for lawful purposes. You warrant you will not do any act that is unlawful or prohibited by any Applicable Laws, including but not limited to any act which would constitute a breach of privacy, or engaging with Passport to defame or libel us, our employees or any other person;

(9) you will not reverse engineer the code associated with Passport or upload files which contain viruses or malware which may cause damage to our property or the property of other individuals or use Passport in a manner that is otherwise detrimental to or in violation of our security protocols;

(10) you will not damage, disrupt, interfere with or misuse a Passport Account or Passport services, including by data mining, hacking, data harvesting or scraping, the launching of any automated program or script including web crawlers, web robots, web indexers, bots, viruses or worms or any program, which makes excessive server requests or impairs the operation and/or performance of Passport as determined by us in our sole discretion;

(11) all information supplied by you is true and accurate as at the time it is given, and that any information you provide has been given in accordance with best practice security measures and no other party, other than you or your authorised representative, has used, or has access to, the seed phrases, private keys or analogous passwords required to effect transfers from your Passport Account;

(12) as far as you are aware, there are no facts, circumstances or other information which:

(A) you have not fully and fairly disclosed in a manner and to the extent that would allow us to make a reasonable assessment of those facts, matters and circumstances prior to execution of these Passport Terms; and

(B) is of such nature and materiality that a reasonable person, had they been made aware, could not reasonably be expected to offer these services;

(13) you are not involved in any capacity in any claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry, mediation or arbitration (nor which are pending or threatened) that may affect us or your ability to comply with these Passport Terms;

(14) you have had the opportunity to obtain independent legal advice in relation to the terms and effect of these Passport Terms;

(15) if requested by us, you will identify and substantiate the source of all funds in your Passport Account;

(16) you:

(A) are not subject to sanctions or otherwise designated on any sanctions list or equivalent maintained by the UNSC, OFAC and/or DFAT or any other applicable regime; or

(B) are not located in a Restricted Jurisdiction.

7.2 Continuous warranties

You represent and warrant that each of the warranties in clause 7.1 are true and accurate, and not misleading or deceptive as at the date of these Passport Terms and subject to clause 7.3, on an ongoing basis, and, except as expressly stated, will be true, accurate and not misleading or deceptive.

7.3 Notification

You must disclose to us anything that has or will constitute a material breach of any warranty under clause 7.1, or cause any warranty under clause 7.1 to be untrue or inaccurate, as soon as practicable after you become aware of it.

7.4 Knowledge and awareness

Where a warranty is given ‘to the best of a party’s knowledge, belief or awareness’, or ‘as far as the party is aware’ or with a similar qualification as to the relevant party’s awareness or knowledge, the party giving the warranty will be deemed to know or be aware of a particular fact, matter or circumstance if that party’s directors or senior management employees are aware of that fact, matter or circumstance, or would have become aware if they had made reasonable enquiries.

7.5 Mutual warranties

(a) Each party warrants and assures the other party that:

(1) If a legal entity:

(A) it is duly incorporated and validly exists under the law of its place of incorporation; and

(B) it is not subject to an Insolvency Event.

(2) If an individual or a legal entity:

(A) the execution and delivery of this agreement has been properly authorised by all necessary action of each party; and

(B) this agreement constitutes a legal, valid and binding agreement enforceable in accordance with its terms by appropriate legal remedy.

7.6 Warranties and Disclaimer

(a) Passport is provided to you strictly on an “as is” and “as available” basis. You acknowledge that:

(1) your use of Passport is at your own risk and may also be subject to the terms and conditions of the websites, products and services of third parties, including our Affiliates, through which you may access your Passport Account;

(2) prior to accepting these Passport Terms, you have been given a reasonable opportunity to examine and satisfy yourself as to the contents of these Passport Terms;

(3) at no time prior to accepting these Passport Terms have you relied on our skill or judgement, and you acknowledge that it would be unreasonable for you to do so.

(b) To the maximum extent permitted by law, all other warranties or conditions which are not guaranteed by law are expressly excluded, including liability for Consequential Loss caused by breach of any express or implied warranty or condition. In particular, we do not warrant:

(1) that your access to Passport will be free from interruptions, errors or viruses; or

(2) the accuracy, adequacy or completeness of any material, service or interface provided by third parties, including our Affiliates.

8. Fees

8.1 Our fees: while we don’t currently charge fees to Users for the creation of a Passport Account, we may, and reserve the right to, impose fees for certain features of Passport in future.

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8.2 Other fees: the buying, selling, trading and receiving of Digital Assets may be subject to other fees such as blockchain transaction fees, marketplace fees and other third-party fees. The User is responsible for any such fees.

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9. Indemnity and Release

(a) You must indemnify us, our Affiliates, Personnel and licensors (the “Indemnified Parties”) and keep the Indemnified Parties indemnified at all times to the fullest extent permitted by law in respect of any Loss or Claim which the Indemnified Parties may suffer, sustain or incur arising from, or connected with, a breach of these Passport Terms by you without limitation.

(b) By Engaging with Passport, you agree to release us from any Claims to the fullest extent permitted by law in respect of any Loss or Claim howsoever arising including in respect of your use of Passport, including any Claim for Consequential Loss of any kind.

10. Limitation of liability

10.1 Compliance with laws – No monitoring responsibilities

(a) We will have no Liability or responsibility for your compliance with laws or regulations governing your Engagement with Passport. Further, you are solely responsible for compliance with all applicable requirements of any laws, rules, and regulations of governmental authorities having jurisdiction over your interactions with Passport and/or your business operations generally.

(b) You further acknowledge that neither us nor any of our Personnel is, and will not be, by virtue of providing Passport, an advisor or fiduciary to you and, given the non-custodial nature of the Passport Account, Immutable does not hold your Digital Assets and expressly disclaims any trust in respect of your Digital Assets.

10.2 Third Party Services

We will not be liable for the performance, errors or omissions of third parties or decentralised networks such as, by way of example and not limiting: email account providers, social media account providers, other third party authentication and identity solutions, blockchain networks (whether private/permissioned or public), providers of third party software applications (such as games) that integrate Passport into their applications, telecommunications and other companies not under our reasonable control, third parties providing services to the blockchain industry generally, such as, companies and other entities providing processing and payment or transaction services (including “Layer 2” or similar “roll-up” or optimisation services), banking partners, custody services, market making services and/or third party pricing services.

10.3 No liability for Consequential Loss

Neither party will be liable to the other for any Loss or Claim in the nature of Consequential Loss.

10.4 Our liability

To the maximum extent permitted by law, we do not accept responsibility for any Loss (including Consequential Loss), however caused and whether or not foreseeable (whether in contract, tort, for breach of statutory duty or otherwise), even if we have previously been advised of the possibility of such loss or damage which you may directly or indirectly suffer in connection with:

(a) your use of Passport or any linked services (including interference with or damage to your computer or mobile devices arising in connection with any such use);

(b) Passport being interrupted or unavailable;

(d) any failure or lack of any security measures relating to Passport, or any third party including in relation to the storage or transfer of Digital Assets;

(e) viruses, malicious codes or other forms of interference affecting Passport or any linked services;

(f) your use of or reliance on information contained on or accessed through Passport, the Websites or any linked services, which information may be incorrect, incomplete, inadequate or outdated;

(g) goods or services supplied pursuant to or in any way connected with Passport;

(h) unauthorised access to or use of servers and/or any information stored on them; or

(i) any failure or omission on our part to comply with our obligations as set out in these Passport Terms.

10.5 Specific warnings

You must ensure that your access to Passport is not illegal or prohibited by laws which apply to you in the jurisdiction in which you are located. You agree that you will not rely on any information contained on our Website or Third Party Sites or the availability of such information and that any decision you make in relation to Passport will be as a result of your own independent assessment of such information. Even though we intend on providing accurate information, we cannot guarantee that the information on the Websites is accurate, complete or updated, or free from technical inaccuracies or typos.

11. Release

You agree to release us, our Affiliates and licensors from any Claims to the fullest extent permitted by law in respect of any Loss or Claim how so ever arising including in respect of your use of the Services and including any Claim for Consequential Loss of any kind and Loss relating to delays, inaccuracies or incomplete services caused by us or our third party suppliers.

12. Privacy

12.1 We may collect Personal Information about you in order to enable you to access and use the Passport service, to enable you to perform transactions through Passport, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy and Collection Statement.

12.2 We may disclose that information to third party service providers who help us deliver our Services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, third party payment processors and our business partners) or as required by law. If you do not provide this information we may not be able to provide you with access to the Passport service. In certain circumstances, we may disclose your Personal Information to third parties located, or who store data, outside Australia.

12.3 Our Privacy Policy contains further information about:

(a) how we store and use your Personal Information;

(b) how you can access and seek correction of your Personal Information;

(d) our complaint handling process.

12.4 By providing Personal Information to us, you acknowledge you have read and understood our Privacy Policy and Collection Statement.

13. Intellectual Property

13.1 All legal rights, title and interest in and to all elements of Passport and the content of Passport (including its “look and feel”, text, graphics (all art, drawings and artistic works), images, logos, icons, photographs, editorial content, films, sound recordings, literary works, software, design, systems, methods, information, computer codes, compilation of content, other codes, data and other material) (“Applicable Intellectual Property”), and all rights in and associated with the Applicable Intellectual Property (including without limitations all copyright, trademarks, service marks and trading names) is owned by us or licensed to us by third parties and protected under Applicable Laws.

13.2 Other than for the purposes of, and subject to the conditions prescribed under Applicable Laws, and except as expressly authorised by these Passport Terms or in writing by us, you may not in any form or by any means:

(a) modify, copy, adapt, reproduce, store, distribute, transmit, print, display, perform, reproduce, publish, licence, or create derivative works from any part of Passport or the Applicable Intellectual Property; or

(b) commercialise or commercially exploit, transfer, or sell any content, software, information, products, or services obtained from any part of Passport or the Applicable Intellectual Property without prior written approval.

14 General

14.1 Governing law and jurisdiction

These Passport Terms are governed by the laws of New South Wales and Australia. Subject to clause 13.2, the Parties agree to submit any dispute or Claim arising out of, relating to or in connection with the agreement created by these Passport Terms, including it subject matter, or formation, existence, validity or termination, to the exclusive jurisdiction of the courts of New South Wales and the New South Wales division of the Federal Court of Australia and the courts of appeal from them.

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14.2 Disputes

Any dispute or Claim relating to these Passport Terms or the provision of Passport, other than a claim for equitable or injunctive relief, will be resolved by binding arbitration. Senior representatives of the parties with authority to settle the dispute will, within five days of a written request from one party to the other, meet in good faith to resolve the dispute. If the dispute is not wholly resolved at the meeting, the dispute shall be resolved by arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Rules. The seat of the arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.

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14.3 Precedence

Where there is inconsistency between these Passport Terms and other content displayed as part of Passport the content of these Passport Terms will prevail to the extent of any inconsistency.

14.4 Notice

Unless a provision of these Passport Terms expressly states otherwise, a notice, consent, approval, waiver or other communication (“Notice”) in connection with these Passport Terms:

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(a) by us, may be given: (i) via the Websites; (ii) sending a message to the email address associated with a Passport Account; or (iii) using other public communication channels;

(b) by you, may be given by sending a message to support@immutable.com.

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14.5 Amendment

We reserve the right to amend these Passport Terms from time to time in our absolute and sole discretion. Amendments will be effective as of the date and time posted to the Websites and your continued use of Passport is deemed acceptance of such amended terms.

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14.6 Force Majeure

We will not be liable for any delay or failure to perform our obligations under these Passport Terms if such delay is due to any circumstances beyond our reasonable control (including but not limited to epidemics, pandemics, blockchain congestion or attacks, Government sanctions or orders, whether known or unknown at the time the parties enter into these Passport Terms) (“Force Majeure Event”).

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14.7 Waiver

A provision of these Passport Terms or a right created under it may not be waived except in writing signed by the party granting the waiver.

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14.8 Assignment

(a) These Passport Terms are for the benefit of the parties and their successors and assigns. The parties and their successors and assigns are bound by these Passport Terms.

(b) We may assign our rights under these Terms of Service without your consent, including at any time.

14.9 Severance

If any portion of these Passport Terms is void, voidable, unenforceable, illegal, prohibited or otherwise invalid in a jurisdiction, that will not invalidate the remaining provisions of these Passport Terms nor affect the validity or enforceability of that provision in any other jurisdiction where it is not invalid.

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14.10 Entire agreement

These Passport Terms constitute the entire agreement of the parties in respect of the subject matter of these terms and supersede all prior discussions, representations, undertakings and agreements. Neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty, except those expressly set out in these Passport Terms.

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14.11 Relationship

Nothing in these Passport Terms constitutes the parties as partners or agents or fiduciaries of the other and no party has any authority to bind the other legally or equitably save as expressly stated in these Passport Terms.

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14.12 Taxes

Each party will be responsible, as required under Applicable Law, for identifying and paying all taxes that are imposed on that party or with respect to the transactions contemplated by use of Passport. Users should consult a tax advisor regarding any tax consequences associated with the purchase, sale, trade or receipt of any Digital Assets through the use of Passport.

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15. Definitions

In these Passport Terms:

Affiliates means as to any corporation, partnership, limited liability company, association, trust, unincorporated entity or other legal entity (each a “Person”), any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the specified Person. The term “control” as used herein (including the terms controlling, controlled by, or under common control with) shall mean possession, directly or indirectly of at least fifty percent (50%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation), or the power to direct or cause the direction of the management or policies of an entity whether through ownership of securities, by contract or otherwise;

Applicable Law means any mandatory statute, law, regulation, ordinance, rule, determination, judgement, rule of law, order, decree, permit, requirement, or any provision of condition or any permit, license or other authorisation issued by any governmental and/or judicial authority having or asserting jurisdiction over the matter in question, whether now or hereafter in effect, in any jurisdiction, that is applicable to a party;

Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, however arising whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or otherwise and where and to the extent the context permits, includes all associated Loss;

Consequential Loss includes any Loss or Claim in the nature of consequential, indirect, incidental, punitive, exemplary, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of chance, loss of reputation, loss of use and/or loss or corruption of data, loss of expectations, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;

Engage or Engages or Engaging or Engagement has the meaning given in clause 2.2;

Digital Assets mean cryptographically secured tokens (whether fungible or non-fungible) recorded on a public blockchain;

Insolvency Event means for a given person, that (1) (a) such person admits in writing its inability to pay its debts generally as they become due, or makes a general assignment for the benefit of creditors, or (b) any proceeding is instituted by or against such person seeking to adjudicate it bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property, or (c) such person generally does not pay its debts as such debts become due and, in the case of any proceeding instituted against such person, such proceeding remains unstayed for more than thirty (30) days or an order or decree approving or ordering any of the foregoing shall be entered or (2) such person takes any corporate action to authorize any such action.

Loss includes any loss, damage, cost, charge, liability or expense (including legal costs and expenses) and Consequential Loss of any kind;

Non-Cooperative Jurisdiction means any country or territory that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organisation, such as the Financial Action Task Force;

Passport means the non-custodial wallet and authentication solution owned by us;

Passport Account means the individual wallet and authenticated identity created by a User for use on our Websites or with our Affiliates or with a Third Party Service;

Personnel means any employee, contractor, subcontractor, agent, partner, shareholder, ultimate beneficial owner, director or officer of a party;

Pre-Approved Transaction has the meaning further described in clause 5;

Restricted Jurisdiction means a jurisdiction where Users are restricted from using the Services in accordance with Applicable Law, including but not limited to those promulgated by the UNSC, OFAC or DFAT;

Third Party Sites means online websites, applications or services that we do not own or control, including those of our partners; and

Websites mean https://www.immutable.com/ and/or any other website we may operate from time to time.

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