March 2024
THESE TERMS DO NOT CONSTITUTE A PROSPECTUS OR AN OFFER DOCUMENT OF ANY SORT AND NO PART OF THESE TERMS SHALL BE TAKEN TO IMPLY AS BEING A PROSPECTUS OF ANY KIND OR AN ADVERTISEMENT FOR INVESTMENT, NOR SHALL IT BE CONSTRUED AS AN OFFER OR SOLICITATION OF AN OFFER TO ENCOURAGE OR FACILITATE THE PURCHASE OF SECURITIES IN ANY FORM, UNITS IN A BUSINESS TRUST, UNITS IN A COLLECTIVE INVESTMENT SCHEME, CAPITAL MARKETS PRODUCT OR ANY OTHER FORM OF INVESTMENT, IN ANY JURISDICTION. NO ACTION HAS BEEN OR WILL BE TAKEN IN RESPECT OF OBTAINING ANY APPROVAL BY THE COMPANY (AS DEFINED HEREIN) UNDER THE LAWS, REGULATORY REQUIREMENTS OR RULES OF ANY JURISDICTION. THE PROVISION OF THESE TERMS TO YOU DOES NOT IMPLY THAT THE APPLICABLE LAWS, REGULATORY REQUIREMENTS OR RULES HAVE BEEN COMPLIED WITH. NO REGULATORY AUTHORITY HAS EXAMINED, APPROVED OR CERTIFIED ANY PART OF THESE TERMS.
The following terms and conditions (“Terms”) govern the sale (“Community Sale”) of the right (the “Future Token Interest”) to receive the tokens known as “$SOMO” minted on the ERC-20 token standard (“Tokens”) between SOMO (BVI) Limited (Company Registration Number: 2141544), a BVI company limited by shares incorporated in BVI. (“Company”, “we” or “us” and “our” shall be construed accordingly), and You (as defined below) during the Token Sale Period, and the deliverance of the Tokens by the Token Issuer (as defined below). Please read these Terms carefully, as they set out such terms which exclude or limit the Company’s liability to You and matters which affect Your legal rights. If You do not agree to these Terms, please do not purchase any Future Token Interests. If You are in any doubt as to the action You should take, You should consult Your legal, financial, tax or other professional advisor(s).
“You” (or “Your”) refers to any person accessing or using the Website, and includes a person, company, corporation or other organisation that has connected its Wallet to the Website (each, a “User”, and collectively, the “Users”). These Terms will govern the relationship between the Company and each User on a several, independent and separate basis.
There is no guarantee, no representation, no warranty, no expectation and no promise that any functions, utilities or rights will, if ever, be accorded to the Future Token Interests or Tokens. You acknowledge and agree that the Company is undertaking the transaction solely for the Company’s own purposes and not as a business service performed for the benefit of You or any other person.
In these Terms, except to the extent that the context requires otherwise, capitalised terms shall have the meaning ascribed to them in Clause 3.1.
Only Users who are Eligible Persons may participate in this Community Sale. If You are not an Eligible Person, please disconnect Your Wallet, cease usage of and exit the Website immediately.
We may revise these Terms from time to time in our sole and absolute discretion, with or without notice to You and any changes will be published and made available on the Website. These changes shall take effect from the date of publication of the new terms, or such other date stated in the notice, and Your continued access or use of the Website from such date shall be deemed to constitute acceptance of the new terms in their entirety. It shall be Your sole responsibility to check the Website for such changes from time to time prior to connection of Your Wallet, usage of the Website and/or participation in the Community Sale. Please review these Terms periodically to ensure that You understand all of the terms and conditions that apply to Your access to and use of the Website.
The Community Sale will be conducted during the Token Sale Period via the Website.
Your access and use of the Website, and participation in the Community Sale is subject to these Terms, any Applicable Laws and other notices, policies or conditions uploaded by the Company to the Website.
By accessing and using any part of the Website, connecting Your Wallet to the same, and participating in the Community Sale or clicking the checkbox acknowledging acceptance of these Terms, You irrevocably and unconditionally agree to be bound by the latest version of the Terms without variation or modification. If You do not agree to these Terms, please disconnect Your Wallet (if connected), cease usage of the Website immediately, do not participate in the Community Sale and exit the Website immediately.
In these Terms, except to the extent that the context requires otherwise, the following words and expressions shall have the following meanings: “Affiliate” Means in relation to a person, any other person which, directly or indirectly, controls, is controlled by or is under the common control of the first mentioned person from time to time, where “control” means the power to direct the management or policies of such company, whether through the ownership of more than 50 per cent of the voting power of such company, through the power to appoint a majority of the members of the board of directors or similar governing body of such company, through contractual arrangements or otherwise, and references to “controlled” or “controlling” shall be construed accordingly.
“Applicable Laws” - Means any law applicable under these Terms to any and all relations between the User and the Company.
“Application Phase” - Means the period during which applicants will submit their applications.
“Application Request” - Means the act of submitting applications
“Eligible Participant” - Means a person that has successfully completed the Eligible Participant Phase.
“Eligible Participant Phase” - Means the phase during which applicants will be able to participate in the sale.
“ETH” - Means Ether, the cryptographic token native to the Ethereum network and which, for the avoidance of doubt, does not refer to Ethereum Classic.
“Force Majeure Event” - Means any event beyond the Company’s reasonable control (and which does not relate to or arise by reason of the Company’s default or negligence), and could not have been reasonably mitigated, which renders impossible or hinders Company’s performance of these Terms, including, without limitation:
“Intellectual Property Rights” - Means any invention, patent, utility model right, copyright and related right, registered design, unregistered design right, trade mark, trade name, internet domain name, design right, design, service mark, database rights, topography rights, rights in get-up and trade dress, rights in goodwill or to sue for passing off and any other rights of a similar nature or other industrial or intellectual property rights owned or used by the Company in any part of the world whether or not any of the same is registered (or capable of registration), including applications and the right to apply for and be granted, extensions or renewals of and rights to claim priority from, such rights and all equivalent or similar rights or protections which subsist now or will subsist in the future.
“Interface” - The user interface hosted on the Website which enables Users to connect to and interact with the Community Sale.
“Max Token Supply” - Means the maximum number of $SOMO tokens that will be created being 1 billion.
“Network Fees” - Means the administrative or gas fees payable for the use of or execution of transactions on a network.
“Parent” - Means any entity (other than the Company) in an unbroken chain of entities ending with the Company, if each of the entities other than the Company owns securities possessing 50.1% or more of the total combined voting power of all classes of securities in one of the other entities in such chain.
“Person” - Means any individual, corporation, partnership, trust, limited liability company, association or other entity, including any decentralized autonomous organization or other similar decentralized or distributed entity.
“Predetermined Price Per Token” - Means such price announced by the Company on the Website or social media channels owned and controlled by the Company prior to the Community Sale.
“Project” - Means the “SOMO” project as described on the Website.
“Smart Contract” - Means digital computer protocol intended to facilitate, verify and enforce the purchase and/or distribution of Tokens.
“Subsidiary” - Means any entity (other than the Company) in an unbroken chain of entities beginning with the Company, if each of the entities other than the last entity in the unbroken chain owns securities possessing 50.1% or more of the total combined voting power of all classes of securities in one of the other entities in such chain.
“Successful Order” - An Order submitted for Future Token Interests that was completed within the full terms of the sale mechanics. Unsuccessful orders are subject to refunds by the Company to the participant at the Company's discretion. In order for an Order to be defined as successful the Order must have been completed. Otherwise the Order will be categorized as Unsuccessful.
“Transfer” - Means, with respect to any instrument, the direct or indirect assignment, sale, transfer, tender, pledge, hypothecation, or the grant, creation or suffrage of a lien or encumbrance in or upon, or the gift, placement in trust, or other disposition of such instrument or any right, title or interest therein, or the record or beneficial ownership thereof, the offer to make such a sale, transfer or other disposition, and each agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing.
"Token Affiliate" - Means any Affiliate of the Company, any Subsidiary or Parent of the Company, or any other Person (including any foundation formed by or with the cooperation of the Company) that, in each case, (a) receives a license or assignment of any material intellectual property from the Company (including, without limitation, any trademarks owned by the Company) and uses such intellectual property to effect a sale or other issuance of Tokens, (b) uses intellectual property that the Company has released under any free software or open source license to effect a sale or other issuance of Tokens, and any officer or key employee of the Company is rendering (or has rendered) material services to such Person, or (if an entity) any officers or key employees of the Company own a direct or indirect interest in such Person, or (c) is designated or otherwise granted rights by the Company or an Affiliate to such Person to administrate, manage or operate (in lieu of the Company or such Affiliate) any Protocol.
“Token Claim Period” - Means after the end of the Token Sale Period to ninety (90) days after 100% of Community Sale has been Released in accordance with a fifteen (24) months linear release schedule.
“Token Generation Event” - Means the date the Tokens are minted, generated or created, if ever, and available for issuance.
“Token Issuer” - Means the Company, or any Token Affiliate or their respective successors or assigns.
“Token Sale Period” - Means a period beginning on such date and time announced by the Company on the Website and ending when confirmed publicly by SOMO.
“Wallet” - Means the digital wallet or other related token storage mechanism connected by a User to the Website.
“Website” - The website angels.somo.xyz and any webpages hosted thereon.
Before participating in the Community Sale, You must conduct Your own due diligence and ensure that Your participation complies with Applicable Laws. You should consult with professional advisors regarding the Community Sale before participating in it. You shall not participate in the Community Sale if there are applicable legal restrictions in Your country of residence or domicile. It is Your sole responsibility to ensure that Your participation in the Community Sale is not prohibited, restricted, curtailed, hindered, impaired or otherwise adversely affected by any Applicable Law, regulation or rule in Your country of residence or domicile.
Access to the Website and participation in the Community Sale is intended for and extended only to a person or body corporate who satisfies the following (“Eligible Person”), and by participating in the Community Sale, You hereby represent and warrant to us as follows:
We may request for such documentation and information about You necessary to comply with any Applicable Laws (including anti-money laundering and countering the financing of terrorism laws). By participating in the Community Sale, You hereby agree and undertake to promptly provide and deliver to us such documents and information upon request. By submitting any of Your personal data and identification documents, You agree and acknowledge that such information as submitted is complete, accurate and authentic, and You shall promptly update us of any changes to Your information. You further acknowledge and accept that we may, in our sole and absolute discretion, decline to proceed with any sale of the Future Token Interests to You until any and all such requested documents and information have been provided to our satisfaction.
You are not permitted to access the Website and/or participate in the Community Sale if You are not an Eligible Person or are acting on behalf of a person who is not an Eligible Person and must disconnect Your Wallet, cease usage of and exit the Website immediately. You must not use any software or networking techniques, including use of a Virtual Private Network (VPN) to modify your internet protocol address or otherwise circumvent or attempt to circumvent this prohibition. Company reserves the right, but have no obligation, to monitor the access to the Community Sale. Furthermore, Company reserves the right, at any time, in its sole discretion, to block access to the Community Sale, in whole or in part, from any geographic location, IP address, or unique device identifier, or to any user who we believe is in breach of these Terms.
Additional criteria for Community Sale Users. In addition to the conditions and provision of the representations and warranties set out in Clause 4.2 above, participation in the Community Sale is conditioned on You notifying the Company through the Website of Your satisfaction of the following conditions prior to the Community Sale, and by participating in the Community Sale, You represent and warrant to the Company that You have satisfied such conditions described on the Website, including but not limited to the following:
(a) have successfully completed Your application to the Community Sale program throughhttps://somo.xyz/apply or through joining the SOMO community on Twitter https://twitter.com/playsomo
(b) that You have, through the use of an account that You own and have full control over, submitted Your application including any relevant information and have been invited to participate in the Community Sale;
(c) submitted to the Company the responses to questions within the application, including confirming You are not a resident or located within a non permitted jurisdiction.
The Community Sale will be conducted in the following phases (each as described in Clause 5.3 to 5.7):
(a) Application Phase;
(b) Eligible Participant Phase.
The date and time of the Application Phase and the Eligible Participant Phase will be announced by the Company on the Website or social media channels and will last for the duration of the Token Sale Period.
An Eligible Person may participate in the Application Phase via of the following ways:
(a) by Website application form at https://SOMOcoin.xyz/application
(b) by joining the SOMO community at https://twitter.com/playSOMO
During the Application Phase, the following shall occur:
(a) Subject to Clause 4.1, 4.2 and 4.4, each Eligable person may complete either:
(A) such amount of Future Token Interests it wishes to purchase as an indication of interest (“Indication”)
(B) wallet account connected to their application.
After completion of the Application Phase, an Eligible Person will be able to participate in the Eligible Participant Phase by visiting angels.somo.xyz only.
During the Eligible Participant Phase, the following shall occur:
(a) Subject to Clause 4.1, 4.2 and 4.4, each applicant may:
(A) such amount of Future Token Interests, denoted in ETH (or other crypto) it wishes to purchase (“Purchase Tokens”)
(B) confirm receipt and acceptance of terms and conditions, through completing purchase of Future Token Interests
You shall only participate in and interact with the Community Sale through the Interface. Any act or attempt to circumvent this condition shall constitute a material breach of these Terms in which case the following shall apply:
(a) You shall forfeit eligibility;
(b) the Token Issuer shall have no obligation to deliver, and You shall have no right to receive any Future Token Interests;
(c) You shall, at the Company’s request, return all Future Token Interests received or acquired by You;
(d) You shall be deemed to have waived all rights, claims and/or causes of action and released the Company, its Affiliates, representatives, employees, directors and agents from all responsibilities, liabilities, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown and shall forbear to sue the Company, its Affiliates, representatives, employees, directors and agents for any losses, damages or costs incurred as a result of, or in connection with the Community Sale.
At the end of the Token Sale Period, the amount of Future Token Interests purchased will determine the total number of Future Token Interests each Eligible Participant will receive from the Community Sale. The Company retains the right to modify the token allocation of any Eligible Participant for any reason.
Purchase Tokens Lock-up Restrictions.
(a) The Purchase Tokens are subject to transfer restrictions and cannot be distributed to Your Wallet (“Lock-up Restrictions”) until such time that they are Released in accordance with the Release Schedule. You undertake to the Company that until such time that the Lock-up Restrictions expire in respect of each tranche of the Purchase Tokens, You shall not, without the prior written consent of the Company, and shall not announce any intention to Transfer any Purchase Tokens purchased by You in accordance with these Terms.
(b) The Tokens shall be released in tranches set out in the Release Schedule whereupon the Lock-up Restrictions cease to apply in respect of the Purchase Tokens (“Released”). Notwithstanding the commencement of the Community Sale, the Company reserves the right to an emergency stop functionality to terminate the distribution process for all unissued Tokens for any length of time. Use of this functionality shall be at the discretion of the Company but shall only be used in limited situations, such as:
"Amount of Purchase Tokens Schedule of Release of Purchase Tokens"
5.10. Claim process for Purchase Tokens.
Each Eligible Participant who successfully completed their Token Purchase will receive their token allocation. Each (“Purchaser”) may claim the Released Purchased Tokens from the Community Sale Smart Contract within the Token Claim Period in the following manner:
Any Released, but unclaimed Purchase Tokens after the Token Claim Period shall be transferred to the SOMO Growth Fund.
5.11. Risks associated with the Community Sale.
(a) You acknowledge that prior to purchasing the Future Token Interests, You have been warned of the risks associated with the Tokens and other relevant technologies mentioned in the Schedule. \
(b) You hereby agree that the Company and its Affiliates shall have no liability for any such losses arising from the risks set out in the Schedule. \
(c) Without prejudice to the generality of the risks described in the Schedule, in order to participate in the Community Sale, You are solely responsible for establishing, maintaining and securing full, uninhibited and secure access to the Wallet. You shall be responsible for implementing all reasonable and appropriate measures for securing the Wallet used to receive the Tokens, including any requisite private key(s) or other credentials necessary to access such storage mechanism(s). If Your private key(s) or other access credentials are lost, You may lose access to the Tokens. The Company, its Affiliates, representatives, employees, directors and agents shall not be responsible for any acts or omissions which result in Your loss of (including loss of access to) the Tokens payable under these Terms. In the event of any loss, hack or theft of Tokens from Your Wallet, You acknowledge and confirm that You shall have no right(s), claim(s) or causes of action in any way whatsoever against the Company, its Affiliates, representatives, employees, directors and agents. \
(d) In the event that You are unable to or otherwise fail to receive the Tokens due to the malfunctioning of Your Wallet, You shall have no right(s), claim(s) or causes of action in any way whatsoever against the Company, its Affiliates, representatives, employees, directors and agents whether for such Tokens.
5.12. Subsequent Token Sales. \
(b)The Company will use commercially reasonable efforts to ensure that the overall supply of Tokens will not exceed the Max Token Supply, but nevertheless an increase in the overall supply of Tokens that exceeds the Max Token Supply is not within the Company’s control. Notwithstanding the foregoing, any unsold Tokens at the time of the Token Generation Event shall initially be retained by the Company and can thereafter be dealt with by the Company in its sole and absolute discretion
6. REFUND
6.1. You acknowledge, agree, and confirm that there shall be no refund of any funds provided by You (including any Network Fees) as part of Your participation in the Community Sale in any form or manner, unless your Order was unsuccessful at which time the Company may decide to Refund you your Order. If your Order was unsuccessful you will not be eligible to receive Future Token Interests. If You do not agree to this, please do not purchase the Future Token Interests.
6.2. You acknowledge that any crypto attached to an Order may be subject to price fluctuations. The Company holds no responsibility for this price fluctuation, and in the situation that your Order was unsuccessful you would receive the exact amount back denominated in Crypto.
6.2 You acknowledge that the company withholds full right to cancel your Future Token Interests and refund you at any time without prior notice, in the event that you are refunded you will not be eligible to receive Future Token Interests.
7. INTELLECTUAL PROPERTY
7.1. All Intellectual Property Rights comprised in the information, text, graphics, logos, images, audio clips, data compilations, scripts, software, technology, sound or any other materials or works found in the Project shall vest in and remain the property of Company and/or its Affiliates.
7.2. These Terms shall in no way shall entitle You to any intellectual property of the Company or its Affiliates, including the Intellectual Property Rights for the Project and all text, graphics, user account interface, visual interface, photographs, trademarks, logos, artwork, and computer code, design, structure, selection, coordination, expression and other content connected to the Project. The arrangement of such content is owned by the Company or its Affiliates and is protected by national and international intellectual property rights protection laws. The Company and/or its Affiliates retain all Intellectual Property Rights, mostly but not limited to copyright over the source code forming the Tokens and the smart contracts related to the Project.
7.3. There are no implied licences under these Terms and the Company reserves any rights not expressly granted to You hereunder.
8. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
8.1. By participating in this Community Sale, You represent and warrant to the Company as follows:
(m) You are not a U.S. Person as defined in Rule 902(k) of Regulation S under the Securities Act. The offer and sale of the Tokens herein was made in an offshore transaction (as defined in Rule 902(h) of Regulation S), no directed selling efforts (as defined in Rule 902(c) of Regulation S) were made in the United States, and You are not acquiring the Tokens for the account or benefit of any U.S. Person;
THE TOKENS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, AND NEITHER THE CORPORATION NOR THE CORPORATION INTENDS TO REGISTER THEM. PRIOR TO THE ONE-YEAR ANNIVERSARY OF THE DATE OF SALE, THE TOKENS MAY NOT BE OFFERED OR SOLD (INCLUDING OPENING A SHORT POSITION IN SUCH TOKENS) IN THE UNITED STATES OR TO U.S. PERSONS AS DEFINED BY RULE 902(k) ADOPTED UNDER THE ACT, OTHER THAN TO DISTRIBUTORS, UNLESS THE TOKENS ARE REGISTERED UNDER THE ACT, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE. PRIOR TO THE ONE-YEAR ANNIVERSARY OF THE DATE OF SALE, YOU MAY RESELL SUCH TOKENS ONLY PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT OR OTHERWISE IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S OF THE ACT, OR IN TRANSACTIONS EFFECTED OUTSIDE OF THE UNITED STATES PROVIDED THEY DO NOT SOLICIT (AND NO ONE ACTING ON THEIR BEHALF SOLICITS) PURCHASERS IN THE UNITED STATES OR OTHERWISE ENGAGE(S) IN SELLING EFFORTS IN THE UNITED STATES AND PROVIDED THAT HEDGING TRANSACTIONS INVOLVING THESE TOKENS MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT. A HOLDER OF THE TOKENS WHO IS A DISTRIBUTOR, DEALER, SUB-UNDERWRITER OR OTHER SECURITIES PROFESSIONAL, IN ADDITION, CANNOT, PRIOR TO THE ONE YEAR ANNIVERSARY OF THE DATE OF SALE, RESELL THE TOKENS TO A U.S. PERSON AS DEFINED BY RULE 902(k) OF REGULATION S UNLESS THE TOKENS ARE REGISTERED UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS AVAILABLE.
(q) Neither You nor any person acting on Your behalf has engaged, or will engage, in any directed selling efforts to U.S. Persons with respect to the Tokens. The purchase of the Future Token Interests herein has not been pre-arranged with a buyer located in the United States or with a U.S. Person, and are not part of a plan or scheme to evade the requirements of the Securities Act(r) Neither You nor any person acting on Your behalf has undertaken or carried out any activity for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the Tokens. You agree not to cause any advertising of the Tokens to be published in any publication or posted in any public space and not to issue any circular relating to the Tokens in the United States; \
(s) Community Participation. You acknowledge and agree that the Tokens provide the holder the right to participate in a blockchain-powered community, featuring social community events and certain other benefits (the “Community”). You are currently a member of the Community and intend to acquire the Tokens for use in the Community as a Community member; \
(t) Consumptive Purpose Only. You acknowledge and agree that the Tokens may not be sold, transferred or converted into any value for any purposes other than the participation and expansion of the Community. By participating in the distribution of the Tokens, You hereby agree and acknowledge that (1) You are not doing so with the intent or expectation of profits from any appreciation in value or otherwise from the Tokens, and (2) You are receiving the Tokens with the sole intention of actively participating in the Community. You are acquiring a number of Tokens that You can and will consume in the Community over a reasonable time period; and \
(u) Qualified Consumer. __**You acknowledge and agree that You have sufficient understanding of the Community and functionality, usage, storage, transmission mechanisms and other material characteristics of fungible and non-fungible cryptographic tokens, token wallets and other token storage mechanisms, public and private key management, blockchain technology, and blockchain-based software systems to understand these Terms. You understand, acknowledge and agree that such knowledge allows You to participate in the Community and to appreciate the implications and risks of acquiring the Tokens herein.
8.2. By participating in this Community Sale, You hereby agree and acknowledge that: \
(a) the Tokens are not intended to constitute securities of any form, units in a business trust, units in a collective investment scheme, capital markets product, or any other form of regulated investment or investment product in any jurisdiction; \
(b) these Terms do not constitute a prospectus or offer document of any sort and is not intended to constitute an offer of securities of any form, units in a business trust, units in a collective investment scheme, capital markets product, or any other form of regulated investment or investment product in any jurisdiction or a solicitation for any form of investment in any jurisdiction; \
(c) none of the Tokens should be construed, interpreted, classified or treated as enabling, or according any opportunity to You to participate in or receive profits, income, or other payments or returns arising from or in connection with the Project, Tokens or the proceeds of any sale of Tokens, or to receive sums paid out of such profits, income, or other payments or returns; \
(d) while the Tokens are not intended to have any function and/or utility associated with them beyond what is already defined, as at the date of these Terms, nothing in these Terms shall prevent such development and/or modification; \
(e) no regulatory authority has examined or approved of these Terms, no action has been or will be taken under the laws, regulatory requirements or rules of any jurisdiction and the publication, distribution or provision of these Terms to You does not imply that the Applicable Laws, regulatory requirements or rules have been complied with; \
(f) You bear the sole responsibility to determine what tax implications (if any) Your participation in the Community Sale may have for You, and agree not to hold the Company, its Affiliates, representatives, employees, directors, agents or any other person liable for any tax liability associated with or arising therefrom; \
(g) none of the Company, its Affiliates, representatives, employees, directors and agents shall be liable for any lost profits or any special, incidental, direct, indirect, intangible, punitive, exemplary or consequential damages (including, but not limited to, where related to loss of revenue, income or profits, loss of use or data, or damages for business interruption), whether based in contract, tort, negligence, strict liability, or otherwise and whether within the parties’ reasonable contemplation or not, arising out of or in connection with any acceptance of or reliance on these Terms or any part thereof by You; and \
(h) You waive the right to participate in a class action lawsuit or a class wide arbitration against the Company, its Affiliates, representatives, employees, directors and agents and/or any person involved in the Community Sale. \
9. RESTRICTIONS ON USE OF THE WEBSITE
9.1. A User must not do or attempt to do any of the following, or use the Website to do any of the following:
10. DISCLAIMERS
10.1. The Tokens, the Community Sale, and the Website are provided on an “as-is” and “as-available” basis without warranties or representations of any kind. The Company, its Affiliates, representatives, employees, directors and agents do not make, and hereby disclaim, to the maximum extent permitted by all Applicable Laws, any representation or warranty in any form whatsoever, whether implied, express or statutory, including any representation or warranty:
(a) in relation to the accuracy, correctness, reliability, timeliness, non-infringement, title, merchantability or fitness for any particular purpose of any contents or functions on the Website; \
(b) in relation to the Tokens, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement; \
(c) that the Website will be free of all viruses or other harmful elements; \
(d) that the Tokens or the delivery mechanism for Tokens in the Community Sale or any subsequent distributions will be free of viruses or other harmful components; \
(e) that certain products, company names or material displayed on the Website do not contain intellectual property belonging to third parties. The Company does not warrant or represent that if a User uses such material it will not infringe the legal rights of these third parties; \
(f) the Company, its Affiliates, representatives, employees, directors and agents shall also not be liable for any damage or loss of any kind caused as a result (including, without limitation direct, indirect, special or consequential damages) of the use of the Website and participation in the Community Sale, including (without limitation) any damage or loss suffered as a result of reliance on the contents contained in or available from the Website, or any system, server or connection failure, error, interruption or delay in transmission; and \
(g) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE WEBSITE, COMMUNITY SALE, OR TOKENS
10.2. As at the date of these Terms, the Tokens do not have any functions, utilities or rights whatsoever attached to them and there is no guarantee, no representation, no warranty, no expectation and no promise that any functions, utilities or rights will, if ever, be accorded to them. By participating in this Community Sale, You expressly acknowledge and agree to this, and waive all rights, claims and/or causes of action and release the Company, its Affiliates, representatives, employees, directors and agents from all responsibilities, liabilities, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown and forbear to sue the Company, its Affiliates, representatives, employees, directors and agents for any losses, damages or costs incurred as a result of, or in connection with the Community Sale.
10.3. To the maximum extent permitted by all Applicable Laws, regulations and rules, the Company, its Affiliates, representatives, employees, directors and agents hereby expressly disclaim their liability and shall in no case be liable to You or any person for: \
(a) postponement, suspension and/or abortion of the Project, launch of Tokens and/or Community Sale; \
(b) any failure, or disruption to, the Project, the Community Sale, the operations of the Company, the Website or any other technology (including but not limited to smart contract technology) associated therewith, due to any reason, including but not limited to occurrences of hacks, mining attacks (including but not limited to double-spend attacks, majority mining power attacks and “selfish-mining” attacks), cyber-attacks, distributed denials of service, errors, vulnerabilities, defects, flaws in programming or source code or otherwise, regardless of when such failure, malfunction, breakdown, or disruption occurs; \
(c) any failure, malfunction, virus, error, bug, flaw, defect in the technology connected with or use for affecting the Community Sale or Your participation in the Community Sale; \
(d) any prohibition, restriction or regulation by any government or regulatory authority in any jurisdiction applicable to the Project, the Community Sale, or Your participation in the Community Sale; \
(e) loss of possession of the credentials for accessing, or loss or destruction of the private keys of, any wallet, including Your Wallet, in any manner and to any extent; \
(f) failure to disclose information relating to the Project or Community Sale; \
(g) any risks associated with Your participation in the Community Sale or holding of Tokens; and \
(h) all other risks, direct, indirect or ancillary, whether in relation to Your participation in the Project, Community Sale and/or holding of Tokens which are not specifically or explicitly contained in or stated in these Terms. \
11. LIMITATION OF LIABILITY
11.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, REPRESENTATIVES, EMPLOYEES, DIRECTORS AND AGENTS BE LIABLE FOR ANY LOST PROFITS OR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, INTANGIBLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, WHERE RELATED TO LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, OR DAMAGES FOR BUSINESS INTERRUPTION), WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE AND WHETHER WITHIN THE PARTIES’ REASONABLE CONTEMPLATION OR NOT, ARISING OUT OF OR IN CONNECTION WITH AUTHORISED OR UNAUTHORISED USE OF THE WEBSITE, OR IN ANY WAY RELATED TO THE COMMUNITY SALE, THE PROJECT OR OTHERWISE RELATED TO THESE TERMS, EVEN IF THE COMPANY HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE WITHIN THE REASONABLE CONTEMPLATION OF THE PARTIES. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
11.2. Without prejudice to Clause 11.1, and to the maximum extent permitted by Applicable Laws, You hereby agree that the aggregate liability of the Company, its Affiliates, representatives, employees, directors and agents and such other persons involved in the Community Sale in tort, contract or otherwise, arising out of or in connection with the participation in the Community Sale shall in any event be limited to the purchase consideration paid to the Company, less any Refunds.
12. THIRD PARTY LIABILITY
To the fullest extent permitted by Applicable Laws, You hereby indemnify, defend and hold the Company, its Affiliates, representatives, employees, directors and agents and such other persons involved in the Community Sale harmless from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses, and/or liabilities (including but not limited to reasonable legal fees incurred and/or those necessary to successfully establish the right to indemnification) filed/incurred by any third party against the Company, its Affiliates, representatives, employees, directors and agents and such other persons involved in the Community Sale, which arise out of a breach by You of any warranty, representation, or obligation hereunder or Your use of the Tokens, Community Sale, or Website.
13. CONFIDENTIALITY
13.1. As used in these Terms, “Confidential Information” means any information and data of any kind that a disclosing party (“Discloser”) designates as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential whether disclosed before, on or after the date of the latest version of these Terms by the Discloser or any of its representatives, to the receiving party (“Recipient”) or any of its representatives, and includes without limitation, these Terms, technology, information and/or personal data provided by the Discloser, its Affiliates, representatives, employees, agents, independent contractors, advisors or consultants, whether disclosed or communicated verbally, in writing, or in any other tangible form, and whether relating to the Discloser’s business, operations, processes, plans, strategies, requirements, inventions, product or service information, pricing, know-how, design rights, trade secrets, software, systems, market opportunities, negotiations, discussions, and contracts with other companies, customers, investor information, business affairs, the existence, nature, status and content of discussions or negotiations between the parties, including any termination of those discussions or negotiations, any copy, report, forecast, valuation, analysis, compilation, study, memorandum, note or other document or material prepared by or for the Recipient or any of its representatives that contains or reflects or is otherwise based upon (whether in whole or in part) any of the information described herein, including, without limitation information relating to the Discloser’s business operations or business relationships, financial information, transaction records, fee arrangements, transactions, accounts, personal data, pricing information, business plans, customer lists, data, records, reports, trade secrets, software, formulas, inventions, techniques, strategies and any data or information designated as confidential by the Discloser or which would be understood by a reasonable person as being of a confidential nature. Notwithstanding anything to the contrary in this Clause 14, this Clause 14 may be waived for disclosure of the Terms by the Company in the Company’s sole and absolute discretion.
13.2. The Recipient will not disclose the Confidential Information to any third party without the prior written consent of the Discloser, except as provided to such party’s officers, directors, agents, employees, consultants, contractors and professional advisors who need to know the Confidential Information for the purposes of performance of these Terms and who are informed of, and who agree to be or are otherwise bound by obligations of confidentiality no less restrictive than, the obligations set forth herein. The Recipient will protect such Confidential Information from unauthorised access, use and disclosure and shall exercise in relation to such Confidential Information no lesser security and control measures and degree of care than those which the Recipient applies to its own confidential information. The Recipient shall not use the Discloser’s Confidential Information for any purpose other than to perform its obligations or exercise its rights under these Terms. The obligations herein shall not apply to:
(a) any information that is or becomes generally publicly available through no fault of the Recipient; \
(b) any information that the Recipient obtains from a third party (other than in connection with these Terms) that, to the Recipient's best knowledge, is not bound by a confidentiality agreement prohibiting such disclosure; and \
(c) any information that is independently developed or acquired by the Recipient without the use of or reference to Confidential Information of the Discloser.
13.3. Confidential Information includes all documents and other tangible objects containing or representing Confidential Information and all copies or extracts thereof or notes derived therefrom that are in the possession or control of the Recipient and all of the foregoing shall be and remain the property of the Discloser. At the Discloser’s request, the Recipient shall return or destroy all Confidential Information; provided, however, the Recipient may retain one (1) copy of Confidential Information: \
(a) if required by Applicable Laws; or \
(b) pursuant to a bona fide and consistently applied document retention policy, \
provided, further, that in either case, any Confidential Information so retained shall remain subject to the confidentiality obligations of these Terms.
13.4. If the Confidential Information disclosed under these Terms or any other agreement that the Company may enter into with the User includes the personal data of the Discloser and/or personal data of any individual:
(a) the Discloser hereby consents to the collection, processing, use and disclosure of its personal data by the Recipient in accordance with these Terms and our privacy policy; and \
(b) the Discloser hereby undertakes, represents and warrants to the Recipient that the Discloser has notified such individual of the purposes for which the Recipient may use his/her personal data and has obtained such individual’s consent for the collection, processing, use and disclosure of his/her personal data by the Recipient in accordance with these Terms.
13.5. The Discloser acknowledges and agrees that any consent given pursuant to these Terms in relation to personal data shall survive death, incapacity, bankruptcy or insolvency of any such individual and the termination or expiration of these Terms. \
14. TERMINATION
14.1. The Company reserves the right to temporarily suspend or permanently disable any User’s access and/or use of all or any part of the Website at any time for any reason, including where the Company is required to do so by Applicable Laws or pursuant to a request by any government or regulatory body, or where the Company suspects that User to be in breach of these Terms, without notice.
14.2. These Terms shall expire and terminate with respect to each User (without relieving the parties of any obligations arising from a prior breach of or non-compliance with these Terms or accrued obligations) upon Release of all of the Purchase Tokens such User may receive pursuant to these Terms.
14.3. Upon expiry or termination of these Terms, each User hereby waives all rights in respect of the Website, Tokens and any consideration payable for the Tokens, and releases the Company, its Affiliates, representatives, employees, directors and agents from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence) in respect of the Website and Tokens.
14.4. Clauses 4.2, 5.9, 5.10, 6.1, 7-13, 14.3, 14.4 and 15 shall survive any termination or expiration of these Terms.
15. MISCELLANEOUS
You may not assign or transfer this Agreement, by operation of law or otherwise, Company’s prior written consent, and any attempt by you to do so, without such consent, will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement, including its schedules and exhibits, is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver. This Agreement will be governed by and construed in accordance with the laws of BVI without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any dispute, controversy or claim arising under, out of, in connection with or in relation to these Terms, including any dispute as to its existence, validity, interpretation, performance, breach or termination and any dispute relating to any non-contractual obligations arising out of or in connection with it shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of BVI for the time being in force and the conduct of the arbitration thereof shall be under the administration of BVI. The language of the arbitration shall be English. This arbitration agreement shall be governed by the laws of BVI and the parties irrevocably consent to the personal jurisdiction and venue therein. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by official postal mail services, with delivery confirmation, or sent by email, with receipt confirmed. This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as originals.
SCHEDULE
RISK DISCLOSURES
You understand that the Tokens, blockchain technology, Ethereum blockchain and other associated and related technologies are new and untested and are outside of the Company’s and/or its Affiliates’ exclusive control. Adverse changes in market forces or the technology, broadly construed, may prevent or compromise the Company’s and/or its Affiliates performance under the Terms.
3. Risks associated with Ethereum blockchain
The Tokens are based on the Ethereum blockchain. As such, any malfunction, unintended function or unexpected functioning of the Ethereum blockchain may cause the Tokens to malfunction or function in an unexpected or unintended manner.
4. Risk of theft and hacking
Hackers or other groups or organisations may attempt to interfere with various parties’ digital asset wallets (including Yours), the Project, the Website, the protocols or smart contracts used to distribute the Tokens, or the availability of Tokens in any number of ways, including without limitation, denial of service attacks, Sybil attacks, spoofing, smurfing, malware attacks, or consensus-based attacks.
5. Risk of security weaknesses in the Website, protocol, Token distribution infrastructure and/or the Tokens’ source code or any associated software and/or infrastructure
There is a risk that the software or infrastructure underlying the Website, protocol and the Tokens may unintentionally include weaknesses or bugs in the source code interfering with the use of, distribution of, or causing the loss of Tokens.
The Company gives no warranty and/or guarantee that the Tokens can be or will be listed or made available for exchange for other cryptographic tokens, non-fungible tokens and/or fiat money on any platform, exchange, or website, and no guarantee is given whatsoever with regards to the liquidity or compatibility of such platform, exchange or website.
undesirable to obtain the necessary regulatory approval(s) to operate in such jurisdiction. In scenarios such as the foregoing, the utility, liquidity, and/or trading price of Tokens will be adversely affected and/or Tokens may cease to be traded.
You acknowledge that there are risks associated with using the Tokens including, but not limited to, the failure of hardware, software, and internet connections.
9. Insufficient interest in the Company, the Project and Tokens
It is possible that the Project or Tokens will not be used by a large number of individuals, businesses and other organisations and that there will be limited public interest in the creation and development of its functionalities. Such a lack of interest in the Project and/or Tokens could negatively impact the development of the Project and usage and value of Tokens.
10. Project and Tokens, as developed, may not meet Your expectations
The Project and the Tokens are currently under development and may undergo significant changes before release. Your expectations regarding the form and functionality of the Project and Tokens may not be met upon release of the Project and Tokens, additional products and services for any number of reasons, including a change in the design and implementation plans and execution of the implementation of the Tokens.
11. Unanticipated risks
Cryptocurrencies, non-fungible tokens and blockchains are new and untested technology. In addition to the risks set forth here, there are risks that the Company cannot foresee and it is unreasonable to believe that such risks could have been foreseeable and mitigated by the Company. Risks may further materialise as unanticipated.