TERMS OF TOKEN SALE
PLEASE READ THESE TERMS OF TOKEN SALE CAREFULLY. YOU ACKNOWLEDGE THAT THERE ARE CERTAIN RISKS ASSOCIATED WITH PURCHASING THE TOKENS DESCRIBED HEREIN AND AGREE TO ASSUME SUCH RISKS UPON ANY PURCHASE OF TOKENS. IN ADDITION, NOTE THAT THESE TERMS CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH, IF APPLICABLE TO YOU, AFFECT YOUR LEGAL RIGHTS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT PURCHASE THE TOKENS DESCRIBED HEREIN.
The following Terms of Token Sale (these “Terms”) govern your (“you” or the “Purchaser”) purchase of crypto- graphic tokens (“Tokens” and each a “Token”) from xbullion holdings, an exempted company incorporated with limited liability in the Cayman Islands (the “Company”). They should be read in conjunction with the white paper relating to the Token as updated from time to time (the “White Paper”). You and the Company are each a “Party” and, together, the “Parties” to these Terms. This document describes the sale of the Tokens and your rights as a Token holder.
Prior to purchasing Tokens, you should carefully consider these Terms. By purchasing Tokens you will be bound by these Terms and any terms incorporated hereafter. If you have any questions regarding these Terms, please contact the Company at firstname.lastname@example.org. If any of these Terms are unacceptable to you, do not purchase Token.
Do not purchase Tokens if you are not an expert in dealing with cryptographic tokens and blockchain-based soft- ware systems. Prior to purchasing Tokens, you should carefully consider these terms and, to the extent necessary, consult a lawyer, accountant, and/or tax professional, as applicable. If any of the following terms are unacceptable to you, do not purchase Tokens.
Purchases of Tokens should be undertaken only by individuals or companies that have significant experience with, and understanding of, the usage and intricacies of cryptographic tokens, including Ethereum-based tokens and blockchain-based software systems. Purchasers should have an expert understanding of the storage and transmission mechanisms associated with cryptographic tokens. While the Company will be available to assist the Purchaser of Tokens during the sale of the Tokens, the Company will not be responsible in any way for loss of any cryptocurrency, including Tokens, resulting from actions taken by, or omitted by Purchaser. If you do not have such experience or expertise, then you should not purchase Tokens or participate in the sale of the Tokens. Your participation in the sale of the Tokens is deemed to be your understanding and acknowledgment that you satisfy the requirements mentioned in this paragraph.
As further described herein, by purchasing Tokens, and to the extent permitted by law, you agree to not hold the Company or its respective past, present, and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and/or designees liable for any losses or any special, incidental, or consequential dam- ages arising from, or in any way connected, to the sale of Tokens, including losses associated with these Terms.
Purchaser agrees to buy, and Company agrees to sell, Tokens in accordance with the following terms:
1. Purpose of the Token
The xbullion’s gold-backed token (“GOLD”) is issued on the Ethereum blockchain and complies with the ERC-20 token standard for increased interoperability with all wallets, and amongst other blockchain applications.
The xbullion token (“GOLD”) will represent 1g of gold bullion stored in an insured vault and can be redeemable for the underlying gold bullion, which will assist keeping the price pegged to the underlying price of gold. At the time of Whitepaper release, the minimum amount redeemable is 1kg of gold. Xbullion tokens (“GOLD”) are not legal tender or money and are not monetary instruments.
The Company holds physical gold in 1:1 direct proportion to the tokens on issue. The gold held in xbullion vaults is:
1. at least 99.99% purity;
2. capable of being traded on international bullion markets;
3. insured in xbullion’s vaults; and
4. audited quarterly by xbullion’s auditing partners. The Company will endeavor to make audit reports available within a fortnight of them being received by the Company.
Tokens represent a right to redeem the physical gold bullion held in the Company’s vaults. The Company will send the gold to the Purchaser upon passing KYC and whitelisting, through insured courier services. The jurisdictions and regions where this service can be provided is subject to change. To confirm availability of the redemption service, please contact email@example.com. This right of redemption of a Token is strictly subject to the Token holder passing all required KYC and whitelisting checks to the satisfaction of the Company in its absolute discretion.
The redemption through insured courier services is subject to a changing fee structure and other conditions. Please contact firstname.lastname@example.org for more information and a quote for this service.
GOLD has an intrinsic fee, whereby 0.19% of the total amount of GOLD will be deducted when GOLD is transferred from a compatible address to another compatible address (“Transfer Fee”).
SECONDARY MARKET ACTIVITIES
GOLD is able to be traded on third party cryptocurrency exchanges and secondary markets (“Secondary Market”). The Company does not have control over GOLD which is purchased, sold or traded on such Secondary Markets.
The xbullion tokens are fully transferable to any Ethereum wallet, and the holder maintains ultimate custody and responsibility to ensure the token is stored in a secure wallet. xbullion tokens can also be kept on an exchange offering the tokens. The most secure method is to store the xbullion tokens in a secured wallet within the user’s custody with an offline backup to the wallet.
Scope of Terms
2. Overview of Token Sale
You may not participate in the sale of the Tokens if you are a citizen, resident (tax or otherwise), or green card holder of the United States, or a citizen or resident of China, Canada, Singapore, South Korea, the Cayman Islands or any other jurisdiction or territory which prohibits the sale and/or purchase of the Tokens.
B. You must be legally permitted to purchase, receive, possess, and make use of Token in your relevant jurisdictions. You warrant that you are of legal age to purchase the Tokens in the your jurisdiction.Token Type.
Tokens are ERC-20 cryptographic utility tokens built on the Ethereum blockchain and will be sold under the symbol “GOLD”. All Tokens will be of equal value and functionality.
C. Token Price.
The price per Token shall be the xbullion spot price of gold fed through the [xbullion platform] in $USD
Accepted Form of Payment in Token Sale: [$USD]1 (for the avoidance of doubt, the Company reserves the right to change its Accepted Form of Payment at any time, at its sole discretion.)
Minimum Token buy: 1 Token
3. How to Participate in the sale of the Tokens
To purchase Tokens, the Purchaser will be required to complete the whitelisting instructions on the Company’s website (including, without limitation, the satisfactory completion of the Company’s anti-money laundering and “know your client” policies and procedures (including a verification as to the Purchaser’s source of funds) (the “Compliance Procedures”) and to provide sufficient information to the Company such that Purchaser is able to demonstrate Purchaser’s eligibility to participate in the sale of the Tokens in accordance with these Terms, the Terms of Service, all applicable laws, and other governing regulations and provisions. The Purchaser shall transfer payment, in $USD, for the number of Tokens they wish to purchase to the Company’s receiving wallet address or nominated bank account if buying tokens Over The Counter (wallet & bank details available after completing the KYC process over the counter).
4. After the sale of the Tokens
Purchasers should have no expectation of ownership or influence over the governance of the Company. Prior to a Purchaser selling Tokens, such Purchaser shall ensure that the buyer of any such Token undertakes to comply with all the provisions of these Terms (including, without limitation, the satisfactory completion of the Compliance Procedures). No certificate will be issued in relation to Tokens and a Purchaser’s personal Token holding is not required to be reflected, recognized, or recorded in any account or ledger maintained by the Company save in connection with the Compliance Procedures.
You are responsible for implementing all measures for securing the wallet, vault, or other storage mechanism you use to receive and hold Tokens purchased from the Company, including any requisite private key(s) or other cre- dentials necessary to access such storage mechanism(s). If your private key(s) or other access credentials are lost, you may lose access to your Tokens. The Company is not responsible for any losses, costs, or expenses relating to lost access credentials.
6. All Purchases of Tokens are Final; Refusal of Purchase Requests
All purchases of Tokens are final and nonrefundable save as expressly set out in these Terms and the White Paper. By purchasing Tokens, the Purchaser acknowledges that neither the Company, its affiliates, directors, nor shareholders are required to provide a refund or allow a cancellation for any reason except as may be required by applicable law or regulation or a redemption in accordance with the White Paper. If the Company believes, at its sole discretion, that any owner of Tokens creates a material regulatory or other legal risk, or adverse effects for the Company or Token, the Company reserves the right to buy all Tokens from such Token owners at the current market price. The Company reserves the right to refuse or cancel Token purchase requests at any time in its sole discretion. Any right of redemption of a Token is strictly subject to the Token holder (from time to time) passing all required KYC and whitelisting checks to the satisfaction of the Company in its absolute discretion.
7. Taxation of Tokens and Taxation Related to the sale of the Tokens
The purchase price that you pay for the Token is exclusive of all applicable taxes. You are responsible for deter- mining what, if any, taxes apply to your purchase of Tokens, including, for example, sales, use, value added, and similar taxes. It is also your responsibility to withhold, collect, report, and remit the correct taxes to the appropriate tax authorities. The Company is not responsible for withholding, collecting, reporting, or remitting any sales, use, value added, or similar tax arising from your purchase of Tokens.
The Purchaser bears the sole responsibility in determining if the purchase of Tokens, or the potential appreciation or depreciation in the value of Tokens over time has tax implications for the Purchaser in the Purchaser’s relevant jurisdiction.
By purchasing Tokens, the Purchaser agrees not to hold any of the Company, its affiliates, shareholders, directors, or advisors liable for any tax liability associated with or arising from the purchase of Tokens.
9. Acknowledgment and Assumption of Risks
Purchaser acknowledges and agrees that there are risks associated with purchasing Tokens, holding Tokens, and using Tokens, as disclosed and explained herein and in Exhibit A hereto. If you have any questions regarding these risks, please contact us at email@example.com. BY PURCHASING TOKENS, YOU EXPRESSLY ACKNOWLEDGE AND ASSUME THESE RISKS.
10. Representations and Warranties
In consideration of the Company’s acceptance of the Purchaser’s offer to purchase Tokens and recognizing its reliance thereon, the Purchaser covenants, agrees, represents, and warrants to the Company that:
- - The Purchaser has read, understands, and is in full compliance with these Terms (including all Exhibits), and the Purchaser understands that, by purchasing, or otherwise receiving, a Token, the Purchaser is accepting all of the terms and conditions set forth herein;
- - The Purchaser has sufficient understanding of the functionality, usage, storage, transmission mechanisms, and other material characteristics of cryptographic tokens, token storage mechanisms (such as token wallets), blockchain technology, and blockchain-based software systems to understand these Terms and to appreciate the risks and implications of purchasing Tokens;
- - The Purchaser has obtained sufficient information about Tokens and the Company to make an informed decision to purchase Tokens and has otherwise had opportunity to contact the Company at firstname.lastname@example.org with any questions regarding purchasing Tokens;
- - The Purchaser is acquiring the Tokens solely for the Purchaser’s own account and not as nominee or custodian for another person or entity and not as nominee or custodian for another person or entity; provided, however, that if the Purchaser is an individual purchasing Tokens on behalf of any entity, the Purchaser is authorized to accept these Terms on such entity’s behalf and that such entity will be responsible for breach of these Terms by the Purchaser or any other employee or agent of such entity (references to “Purchaser”, “you” and the like in these Terms refer to the Purchaser and such entity, jointly);
- - The Purchaser is legally permitted to purchase, receive, possess, and make use of Tokens in its relevant jurisdiction; the Purchaser is of legal age to purchase Tokens in the Purchaser’s relevant jurisdiction, and the Purchaser is not aware of any other legal reason to prevent it from obtaining Tokens; and, further, the Purchaser is not (i) a citizen, resident (tax or otherwise), or green card holder of the United States, or a citizen or resident of China, Singapore, Canada, South Korea or the Cayman Islands, (ii) a citizen or
resident of a geographic area in which access to or use of the Token is prohibited by applicable law, decree, regulation, treaty, or administrative act, or (iii) a citizen or resident of, or located in, a geographic area that is subject to U.S., Cayman Islands or other sovereign country sanctions or embargoes, and the Purchaser agrees that if the Purchaser’s country of residence or other circumstances change such that the representations in this clause are no longer accurate, that Purchaser will immediately cease the re- stricted use of the Token, as applicable;
- - The Purchaser understands that its purchase of Tokens does not involve the purchase or receipt of shares, ownership, or any equivalent in any existing or future public or private company, corporation, or other entity in any jurisdiction;
- - The Purchaser’s purchase of Tokens hereunder was not made using funds stemming from illegal or unethical activities or sources; and the Purchaser is not purchasing or using Tokens for any illegal purpose, and will not use Tokens for any illegal purpose;
- - The Purchaser will comply with any applicable tax obligations in its jurisdiction arising from its purchase of Tokens, and the Purchaser accepts that it bears sole responsibility for determining the tax implications, if any, relating to (i) the purchasing, allocation, use or ownership of Tokens, (ii) the potential appreciation or depreciation in the value of Tokens over time, if any, (iii) the sale and purchase of Tokens, and (iv) any other action or transaction related to Tokens;
- - PURCHASER WAIVES ANY RIGHT THAT IT MAY HAVE, OR OBTAIN IN THE FUTURE, TO PARTICI- PATE IN A CLASS ACTION LAWSUIT OR A CLASS WIDE ARBITRATION AGAINST ANY ENTITY OR INDIVIDUAL INVOLVED WITH THE SALE OF TOKENS;
- - Neither the Company nor any member of the Company has provided the Purchaser with any advice regarding whether Tokens is a suitable token for the Purchaser;
- - The Purchaser understands that the Company is not currently required to register with the Cayman Islands Monetary Authority because the Tokens are not shares, trust units or partnership interests and accordingly are not currently considered equity interests for the purposes of the Mutual Funds Law (2020 Revision) of the Cayman Islands (“MFL”).
- - The Purchaser understands that the Cayman Islands Monetary Authority has therefore not reviewed the Tokens or these Terms and have not passed any judgment on the merits of the Company or acquiring the Tokens. The Cayman Islands Monetary Authority will have no oversight of the operations of the Company, the Tokens. New legislation is proposed which will require the Company to be regulated and register with the Cayman Islands Monetary Authority.
- - The Purchaser understands that the Cayman Islands Government has not yet proposed or passed any legislation expressly regulating crypto currencies, cryptographic tokens, initial coin offerings or token generating events and its regulatory intentions are unclear. The Purchaser understands that any new laws imposed in the Cayman Islands (or amendments to the existing laws of the Cayman Islands, such as the MFL) could, among other things: (i) prohibit the sale, purchase or transfer of the Tokens or otherwise make holding them illegal, (ii) require the Company to register itself or the Tokens with the Cayman Islands Monetary Authority and become subject to its supervision, (iii) require the Company to move to another jurisdiction and/or (iv) adversely affect or destroy the value of a Purchaser’s Tokens, and that such new laws or amendments could be imposed very quickly and without warning;
- - The Purchaser is not making a regulated investment, as this or any similar term may be interpreted by any regulatory agency in its relevant jurisdiction;
- - The Purchaser takes sole responsibility for any restrictions and risks associated with receiving and holding Tokens, including, without limitation, those set out in Exhibit A;
- - To the extent permitted by law, Purchaser understands that the Company makes no warranty whatsoever, either expressed or implied, regarding the future success of Token, or the Ethereum network or any other network on which the Company may ultimately build the Company’s network and the Tokens;
- - The Purchaser accepts that Purchaser is obtaining Tokens on an “as is” and “under development” basis and accepts that the Company is providing Tokens without being able to provide any warranties in relation to Tokens, including, but not limited to, title, merchantability or fitness for a particular purpose; and
- - The Purchaser has not and will not supply the Company with inaccurate or misleading information relating to Purchaser’s purchase of Tokens including, without limitation, as to the Purchaser’s identity and source of funds. The Purchaser will supply the Company with all accurate information, documentation or copy documentation that the Company may require in order to allow the Company to accept the Purchaser’s purchase of Tokens and allocate Tokens to the Purchaser, and the Purchaser will provide the Company with any additional information which may be reasonably required in order that the Company can fulfill its legal, regulatory, and contractual obligations, including but not limited to any anti-money laundering and “know your customer” obligations and/or any change to the information that the Purchaser has supplied to the Company.
11. Capacity and Experience
The Purchaser is responsible for the decision to acquire Tokens and has legal competence and capacity to accept these terms through the Purchaser’s purchase of Tokens. The Purchaser has the knowledge, expertise, and ex- perience in financial matters to evaluate the risks of acquiring Tokens, is aware of the risks inherent in acquiring and the method by which the assets of the Company are held and/or traded and can bear the risk of loss of its entire Token acquisition. The Purchaser is qualified and authorized to make such an acquisition decision and, to the extent deemed necessary, has consulted its own advisors and legal counsel regarding the acquisition of To- kens. In making the decision to acquire Tokens, the Purchaser has not relied on any advice or recommendation from the Company nor any placement agent associated with the Company, or any of their affiliates. To the extent that the Purchaser is acting on behalf of an entity, the Purchaser has the full power and authority under such entity’s governing instruments to do so and that entity has the full power and authority under its governing instruments to acquire Tokens.
To the fullest extent permitted by applicable law, the Purchaser hereby agrees to indemnify and hold harmless the Company and its respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, legal and financial advisers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (the “Company Parties” and each a “Company Party”) from and against all claims, demands, actions, damages, losses, costs and expenses (including reasonable attorneys’ fees) that arise from or relate to: (i) Purchaser’s purchase or use of Tokens, (ii) Purchaser’s responsibilities or obligations under these Terms, (iii) Purchaser’s violation of these Terms, or (iv) Purchaser’s violation of any rights of any other person or entity in connection with Tokens and/or these Terms. The Company reserves the right to exercise sole control over the defense, at the Purchaser’s expense, of any claim subject to indemnification under this section, including choice of legal counsel. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in any other written agreement between the Purchaser and the Company.
Any Company Party or other identifiable person who is not a party to these Terms may enforce any rights granted to such party pursuant to these Terms in its own right as if it was a party to these Terms. Except as expressly provided in the foregoing sentence, a person who is not a party these Terms shall not have any rights to enforce any term of these Terms. Notwithstanding anything to the contrary, the consent of or notice to any person who is not a party to these Terms shall not be required for any termination or rescission to any variation, waiver, assign- ment, novation, release or settlement under these Terms at any time. The Company may rely conclusively upon and shall incur no liability in respect of any action taken upon any notice, consent, request, instructions or other instrument believed in good faith to be genuine, howsoever given. The Company will protect and indemnify its agents, delegates, service providers, officers, directors and other representatives against liability.
13. Disclaimer of Warranties
THE TOKENS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. THE COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES AS TO THE TO- KENS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, QUIET ENJOYMENT, SATISFACTORY QUALITY,
AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE TOKENS ARE RELIABLE, CURRENT OR ERROR- FREE, MEET THE PURCHASER’S REQUIREMENTS, OR THAT DEFECTS IN THE TOKENS WILL BE CORRECTED. THE COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE TOKENS, THE USE OF THE TOKENS, OR THE DELIVERY MECHANISM FOR TOKENS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DOES NOT WARRANT THAT THE USE OF THE TOKENS WILL BE UNINTERRUPTED.
As specified more fully in Exhibit A, transactions using crypto currency and blockchain technology, such as those involving the sale of Tokens, are at risk to multiple potential failures, including but not limited to, high network volume, computer failure, blockchain failure of any kind, and user failure. The Company is not responsible for any loss of data, cryptocurrencies, Tokens, hardware or software resulting from (i) any such failures, or (ii) any actions taken by Purchaser in connection with the sale of the Tokens.
The disclaimers and other risk disclosures contained in these Terms will apply to the fullest extent permitted by applicable law. Some jurisdictions do not allow the exclusion of certain warranties or disclaimer of implied terms in contracts with consumers, so some or all of the exclusions of warranties and disclaimers in this section may not apply to the Purchaser.
14. Limitation of Liability
The Purchaser acknowledges and agrees that, to the fullest extent of the law the disclaimer of liability contained herein apply to any and all damages or injury whatsoever caused by or related to (i) the Company under any cause or action whatsoever of any kind in any jurisdiction, including, without limitation, actions for breach of warranty, breach of contract or tort, including negligence, and that the Company shall not be liable for any indirect, incidental, special, punitive, exemplary, or consequential damages, including loss of profits, loss of revenues, loss of goodwill, or loss of data, in any way whatsoever arising out of the use of, or inability to use, or purchase of, or inability to purchase Token, or arising out of any interaction with the Token associated smart contract implemented in relation to Token. Purchaser acknowledges that the Company is not liable for the conduct of third parties, including other purchasers of Token, and that the risk of purchasing and using Token rests entirely with the Purchaser. To the maximum extent permissible under law, under no circumstances will the Company be liable to any Purchaser for more than the amount the Purchaser has paid to the Company for the purchase of Token. The liability limitations and exclusions in this section will apply to the fullest extent permitted by law. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations of this section may not apply to the Purchaser.
To the fullest extent permitted by applicable law, the Purchaser releases the Company and the other Company Parties from responsibility, liability, claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. The Purchaser expressly waives any rights it may have under any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which the Purchaser may know or suspect to exist in its favor at the time of agreeing to this release.
Any dispute or difference arising out of or in connection with these Terms or the legal relationships established by these Terms, including any question regarding its existence, validity or termination (each, a “Dispute”), shall be referred to and finally resolved by arbitration under the JAMS Rules which will be deemed to be incorporated by reference into this clause, save for any waiver of any rights the parties would otherwise have to any form of appeal or recourse to a court of law or other judicial authority, which rights are expressly reserved. The number of arbitra- tors shall be three. The seat of the arbitration shall be London, England. The language of the arbitration shall be English.
Any dispute arising out of or related to these Terms is personal to you and the Company and will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of rep- resentative proceeding. There will be no class arbitration or arbitration in which an individual attempts to resolve a dispute as a representative of another individual or group of individuals. Further, a dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
A. Complete Agreement
These White Paper and the Terms set forth the entire understanding between the Purchaser and the Company with respect to the purchase and sale of Tokens. For facts relating to the sale and purchase, the Purchaser agrees to rely only on these Terms in determining purchase decisions and understands that the Terms govern the sale of Tokens and supersede any public statements about the Tokens made by third parties or by the Company or individuals associated with the Company, past and present and current.
The Purchaser and the Company agree that if any provision of these Terms is found illegal or unenforce- able, in whole or in part, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of these Terms, which shall continue to be in full force and effect.
C. No Waiver
The failure of the Company to require or enforce strict performance by the Purchaser of any provision of these Terms or the Company’s failure to exercise any right under these Terms shall not be construed as a waiver of the Company’s right to assert or rely upon any such provision or right in that or any other instance. The express waiver by the Company of any provision, condition, or requirement of these Terms shall not constitute a waiver of any future obligation to comply with such provision, condition, or requirement. Except as expressly and specifically set forth in these Terms, no representations, statements, consents, waivers, or other acts or omissions by the Company shall be deemed a modification of these Terms nor be legally binding.
D. Amendments; Updates to the Terms
The Company reserves the right, in the Company’s sole and absolute discretion, to change, modify, add, or remove portions of these Terms at any time, including, without limitation, as is reasonably required to comply with applicable law or regulation, by posting the amended terms on its website. Any Purchaser will be deemed to have accepted such changes by purchasing Tokens following such amendment, and such amended terms will be effective immediately. These Terms may not be otherwise amended except by express consent of both the Purchaser and the Company.
The Company may assign its rights and obligations under these Terms.
F. Electronic Delivery of Reports and Other Communications
The Purchaser agrees and consents to receive electronically all communications, agreements, docu- ments, notices, and disclosures that the Company may provide in connection with the Purchaser’s pur- chase and use of Tokens. The Company will provide such communications to the Purchaser by posting them on its website and/or by emailing them to the Purchaser at the primary email address associated with the Purchaser’s account registered with the Company. The Purchaser acknowledges and agrees that it shall not be entitled to receive any information from the Company in paper format. If the Purchaser does not have reliable access to the internet or e-mail, the Purchaser should not acquire Tokens. The Purchaser accepts that such electronic communications may not be secure and may contain computer viruses or other defects, may not be accurately replicated on other systems, or may be intercepted, deleted, or inter- fered with or without the knowledge of the sender or the intended recipient. The Company makes no warranties in relation to these matters. The Company reserves the right to intercept, monitor, and retain
e-mail messages to and from their systems as permitted by applicable law. If the Purchaser has any doubts about the authenticity of an electronic communication purportedly sent by the Company, the Purchaser is required to contact the purported sender immediately.
G. Cooperation with Legal Authorities
The Purchaser acknowledges and agrees that the Company intends to cooperate with all law enforcement inquiries, subpoenas, or requests provided that such inquiries, subpoenas, or request are fully supported and documented by the law in the relevant jurisdictions in the Company’s judgment. The Purchaser hereby acknowledges and agrees that the Purchaser has read, understands, and is bound by the additional terms set forth on Exhibit B related to such cooperation efforts made by the Company.
Currently, only English versions of any Company’s communications are considered official. The English version shall prevail in case of differences in translation.
I. Governing Law
These Terms, the arbitration clause contained in them, and all non-contractual obligations arising in any way whatsoever out of or in connection with these Terms are governed by, construed, and take effect in accordance with the laws of the Cayman Islands.
J. Relationship of the Parties
Neither these Terms, nor purchasing Tokens, create any form of partnership, joint venture, or any other similar relationship between the Purchaser and the Company. Except as otherwise provided herein, these Terms are intended solely for the benefit of the Purchaser and the Company and are not intended to confer third-party beneficiary rights upon any other person or entity.
Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms.
These Terms do not limit any rights that the Company may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to the Company, pursuant to these Terms or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to the Company.
All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms.
CERTAIN RISKS RELATING TO THE PURCHASE, SALE AND USE OF TOKENS
Important Note: As noted elsewhere in these Terms, Tokens are not being structured or sold as securities or any other form of investment product. Accordingly, none of the information presented in this Exhibit A is intended to form the basis for any investment decision, and no specific recommendations are intended. The Company ex- pressly disclaims any and all responsibility for any direct or consequential loss or damages of any kind whatsoever arising directly or indirectly from: (i) reliance on any information contained in this Exhibit A, (ii) any error, omission, or inaccuracy in any such information, or (iii) any action resulting from such information.
By purchasing, holding, and using Tokens, the Purchaser expressly acknowledges and assumes the fol- lowing risks:
DISCLOSURES REGARDING TOKENS
Tokens are provided on an ‘as is’ basis
The Tokens are provided on an “as is” basis. The Company Parties and each of their respective directors, officers, employees, shareholders, affiliates and licensors make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Tokens, including any warranty that the Tokens will be uninterrupted, error-free or free of harmful components, secure or not otherwise lost or damaged. Except to the extent prohibited by applicable law, the Company Parties and each of their respective directors, officers, employees, shareholders, affiliates and licensors disclaim all warranties, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment, and any warranties arising out of any course of dealings, usage or trade.
Lack of development of market of Tokens
There are no warranties that Tokens will be listed or made available for exchange for other cryptocurrency and/or fiat money. It shall be explicitly cautioned that if Tokens are made available on an exchange, such exchange, if any, may not be subject to regulatory oversight, and the Company does not give any warranties in relation to any exchange services providers. Because there has been no prior public trading market for Tokens, the sale of the Tokens may not result in an active or liquid market for Tokens, and the price of Tokens may be volatile. Token holders may not be able to dispose of Tokens easily and where no secondary market develops, a Token holder may not be able to liquidate at all. Proposed transfers of the Tokens may be blocked by the Company in circumstances where the proposed transferee has not already completed the Company’s KYC and AML procedures (including, without limitation, verification of identity and source of funds) to its satisfaction. Purchasers should be aware of the restrictions on their subsequent sale.
Risks relating to highly speculative prices
The valuation of cryptocurrency in a secondary market is usually not transparent, and highly speculative. The Tokens do not hold any ownership rights to the Company’s assets and, therefore, are not backed by any tangible asset. The value of Tokens in the secondary market, if any, may fluctuate greatly within a short period of time. There is a high risk that a Purchaser could lose its entire contribution amount. In the worst-case scenario, Tokens could be rendered worthless. The Tokens constitute an agreement from xbullion that it will re-purchase the Tokens for their value in gold bullion.
The sale of the Tokens and the performance of the Company’s activities set out in these Terms, the white paper and the development roadmap may be interrupted, suspended or delayed due to force majeure circumstances. For the purposes of these Terms, “force majeure” shall mean extraordinary events and circumstances which could not be prevented by the Company and shall include: changes in market forces or the technology, acts of nature, wars, armed conflicts, mass civil disorders, industrial actions, epidemics, pandemics (including COVID-19), lockouts, slowdowns, prolonged shortage or other failures of energy supplies or communication service, acts of
municipal, state or federal governmental agencies, other circumstances beyond the Company’s control, which were not in existence at the time of Token Sale.
Unlike bank accounts or accounts at financial institutions, Tokens are uninsured unless you specifically obtain private insurance to insure them. Thus, in the event of loss or loss of utility value, there is no public insurer or private insurance arranged by the Company to offer recourse to a Purchaser.
The Company is not a regulated mutual fund
The Company is not regulated as a mutual fund for the purposes of the Mutual Funds Law (2020 Revision) of the Cayman Islands (“MFL”) on the basis that Tokens are not shares and the Company is therefore not a registrable mutual fund. In addition, the Tokens are not redeemable at the option of the Purchaser and so the Tokens and the Company are considered ‘closed-ended’. Accordingly, neither a copy of these Terms nor details about the Company have been filed with the Cayman Islands Monetary Authority (“CIMA”). Because the Company is not a regulated mutual fund, the Company is not subject to the supervision of CIMA and the Company is not required to have its accounts audited nor submit such accounts to CIMA. New legislation is proposed which will require the Company to be regulated and register with the Cayman Islands Monetary Authority.
If the Company were regulated as a mutual fund under the MFL, it would need to comply with regulatory requirements designed to protect investors, including the requirement to limit the minimum aggregate Token purchase amount to US$100,000 or its equivalent in any other currency in order for it not to be licensed or administered by a licensed mutual fund administrator. The Company would also need to pay a prescribed initial registration fee.
These are matters which would be required in connection with an initial registration under the MFL. The Company would also then have ongoing obligations under the MFL following its initial registration, including the obligation to file with CIMA prescribed details of any changes to these Terms; to file annually with CIMA accounts audited by an approved auditor and a fund annual return; and to pay a prescribed annual fee.
If Company were a regulated mutual fund, it would also be subject to the supervision of CIMA, and CIMA would have wide powers to take certain actions if certain events occur.
Risk of unfavourable regulatory action in one or more jurisdictions
The regulatory status of cryptographic tokens, digital assets, and blockchain technology is undeveloped, varies significantly among jurisdictions and is subject to significant uncertainty. It is possible that certain jurisdictions may adopt laws, regulations, policies or rules directly or indirectly affecting the Ethereum network, or restricting the right to acquire, own, hold, sell, convert, trade, or use Tokens. Developments in laws, regulations, policies or rules may alter the nature of the operation of the blockchain network upon which the Tokens are dependent. There can be no assurance that governmental authorities will not examine the operations of Company Parties and/or pursue enforcement actions against Company Parties. All of this may subject Company Parties to judgments, settlements, fines or penalties, or cause Company Parties to restructure their operations and activities or to cease offering certain products or services, all of which could harm Company Parties’ reputations or lead to higher operational costs, which may, in turn, have a material adverse effect on the Tokens.
Purchaser bears responsibility of legal categorization
There is a risk that Tokens might be considered a security in certain jurisdictions, or that they might be considered to be a security in the future. The Company does not provide any warranty or guarantee as to whether the Tokens will be a security in the jurisdiction of the Purchaser. Each Purchaser will bear all consequences of Tokens being considered a security in their respective jurisdiction. Every Purchaser is responsible to confirm if the acquisition and/or disposal of Tokens is legal in its relevant jurisdiction, and each Purchaser undertakes not to use Tokens in any jurisdiction where doing so would be unlawful. If a Purchaser establishes that the purchase or use of Tokens is not legal in its jurisdiction (or would only be legal if the company had taken additional steps such as registration or licensing), it should not acquire Tokens and immediately stop using or possessing Tokens.
Acquiring Tokens in exchange for cryptocurrency will most likely continue to be scrutinised by various regulatory bodies around the world, which may impact the usage of Tokens. The legal ability of the Company to provide or support Tokens in some jurisdictions may be eliminated by future regulation or legal actions. In the event that the Company determines that the purchase or usage of Tokens is illegal in a certain jurisdiction, the Company may cease operations in that jurisdiction, or adjust Tokens in a way to comply with applicable law.
The Purchaser bears responsibility for complying with transfer restrictions.
Tokens may be placed on third-party exchanges, giving future purchasers and users an opportunity to openly buy Tokens.
GENERAL SECURITY RISKS
Risk of theft and hacking
Token generation events and initial coin offerings are often targeted by hackers and bad actors. Hackers may attempt to interfere with the Purchaser’s digital wallet, (the “Purchaser’s Wallet”), the xbullion Smart Contract 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. Any such attack may result in theft of a Purchaser’s Tokens.
Tokens purchased by a Purchaser may be held by a Purchaser in the Purchaser’s Wallet or vault, which requires a private key, or a combination of private keys, for access. Accordingly, loss of requisite private key(s) associated with Purchaser’s Wallet or vault storing the Tokens will result in loss of such Tokens. Moreover, any third party that gains access to such private key(s), including by gaining access to login credentials of a hosted wallet or vault service Purchaser uses, may be able to misappropriate Purchaser’s Tokens. The Company is not responsible for and shall be held harmless in respect of any such losses.
Risk of incompatible wallet service
The wallet or wallet service provider used for the acquisition and storage of the Tokens has to be technically compatible with the Tokens. The failure to assure this may result in the Purchaser not being able to gain access to its Tokens.
Risk of weaknesses or exploitable breakthroughs in the field of cryptography
Advances in cryptography, or other technical advances such as the development of quantum computers, could present risks to cryptocurrencies, Ethereum and Tokens, which could result in the theft or loss of Tokens.
Internet transmission risks
There are risks associated with using Tokens including, but not limited to, the failure of hardware, software, and internet connections. The Company shall not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Tokens, howsoever caused. Transactions in cryptocurrency may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Cryptocurrency transactions are deemed to be made when recorded on a public ledger, which is not necessarily the date or time when the transaction is initiated.
Legal structure of Token generator
The Company is an exempted company incorporated in the Cayman Islands pursuant to the Companies Law
(Revised) of the Cayman Islands. An exempted company is a body corporate which has separate legal personality capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit, and having perpetual succession. The constitution of an exempted company is contained in two documents, the memorandum of association and the articles of association (the “Articles”). The Articles typically provide that there must be at least one director of a Cayman company. Generally, the Articles will specify that the management of a Cayman company is the responsibility of, and is carried out by, its board of directors. If the Articles permit it, a Cayman company may indemnify officers and directors of the company from all liabilities and expenses incurred by search persons in the performance of their duties.
The memorandum of association of a Cayman Islands company must specify the authorised share capital of such company. The memorandum of association will state the aggregate amount of the authorised share capital, together with details of the number of shares into which it is divided and the par value of those shares. As a Token holder, you are not a party to the memorandum of association or the Articles and are not entitled to any right or interest in or to shares of the Company and have no rights to appoint or remove the board of directors of the Company.
Because Tokens confer no governance rights of any kind with respect to the Company, all decisions involving the Company’s products or the Company itself will be made by the Company at its sole discretion. These decisions could adversely affect the value and/or utility of any Token you own.
Dependence on management team
The ability of the project team which is responsible for maintaining competitive position of the Company is dependent to a large degree on the services of a senior management team. The loss or diminution in the services of members of such senior management team or an inability to attract, retain and maintain additional senior management personnel could have a material adverse effect on the Company and the value of the Tokens. Competition for personnel with relevant expertise is intense due to the small number of qualified individuals, and this competition may seriously affect the Company’s ability to retain its existing senior management and attract additional qualified senior management personnel, which could have a significant adverse impact on the value of the Tokens.
Disclosures relating to conflicts of interest
Any of the Company Parties may be engaged in transactions with related parties and conflicts of interest may arise, potentially resulting in the conclusion of transactions on terms not determined by market forces.
Cryptographic tokens such as Token are a new and largely untested technology. In addition to the risks included in this Exhibit A of these Terms, there are other risks associated with your purchase, possession, and use of Token, including unanticipated risks. Such risks may further materialize as unanticipated variations or combinations of the risks discussed in this Exhibit A of these Terms.
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Certain information presented within the Company’s publications and digital marketing and media may contain forward-looking statements or information (collectively “forward-looking statements”) that relate to the Com- pany’s current expectations and views of future events. In some cases, these forward-looking statements can be identified by words or phrases such as “may”, “will”, “expect”, “anticipate”, “aim”, “estimate”, “intend”, “plan”, “seek”, “believe”, “potential”, “continue”, “is/are likely to” or the negative of these Terms, or other similar ex- pressions intended to identify forward-looking statements.
The Company has based these forward-looking statements on its current expectations and projections about future events and financial trends that it believes may affect its financial condition, results of operations, business strat- egy, financial needs, or the results of the sale of the Tokens or the value or price stability of Token.
Any forward-looking statements made by the Company are not guarantees of future performance and are subject to certain risks, uncertainties and assumptions that are difficult to predict; therefore, actual results may differ ma- terially from those expressed or forecasted in any forward-looking statements. The risks and uncertainties include, without limitation, those noted in these Terms and this Exhibit A. The Company undertakes no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except to the extent that we are required to do so by law. Given such risks, any prospective Purchaser in this Token Sale should not place undue reliance on these forward-looking statements.
The information contained herein is not a substitute for a thorough due diligence investigation by Purchaser. The Company has not made any investigation, and makes no warranty or representation, with respect to the Com- pany’s compliance with the regulations of any jurisdiction. The Company makes no warranty or representation whatsoever regarding the accuracy or completeness of the information provided herein. All potential Purchasers must take appropriate measures to verify all of the information set forth herein.
All information presented within the Company’s publications and digital marketing and media including but not limited to websites, brochures, white papers and presentations are intended for illustrative purposes only and are not guaranteed by the Company or its affiliates and subsidiaries and are expressly disclaimed from inclusion in these Terms.
ADDITIONAL COMPLIANCE TERMS
The Company (and/or its delegate) may request such evidence as is necessary to verify the identity and source of funds of a prospective Purchaser and to confirm the anti-money laundering status of any transferring Token holder. If, as a result of any information or other matter which comes to their attention, resident in the Cayman Islands knows or suspects, or has reasonable grounds for knowing or suspecting, that another person is engaged in criminal conduct or is involved with terrorism or terrorist property and the information for that knowledge or suspicion came to their attention in the course of business in the regulated sector, or other trade, profession, business, or employment, the person will be required to report such knowledge or suspicion to: (i) the Financial Reporting Authority of the Cayman Islands, pursuant to the Proceeds of Crime Law (Revised) of the Cayman Islands if the disclosure relates to criminal conduct or money laundering; or (ii) a police constable not below the rank of inspector, or the Financial Reporting Authority, pursuant to the Terrorism Law (Revised) of the Cayman Islands, if the disclosure relates to involvement with terrorism or terrorist financing and property. Such a report shall not be treated as a breach of confidence or of any restriction upon the disclosure of information imposed by any enactment or otherwise.
The Company prohibits acceptance of funds by any persons or entities that are acting, directly or indirectly: (i) in contravention of any U.S. or international laws and regulations, including anti-money laundering regulations or conventions; (ii) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), as such list may be amended from time to time; (iii) for a senior foreign political figure, any member of a senior foreign political figure’s immediate family or any close associate of a senior foreign political, unless the Company, after being specifically notified in writing that the Purchaser is such a person, conducts further due diligence, and determines that such acquisition shall be permitted; or (iv) for a foreign shell bank (such persons or entities in (i) – (iv) are collectively referred to as “Prohibited Persons”).
Tax Information Exchange Obligations
Purchaser acknowledges that the Company may be subject to certain obligations (the “Tax Information Exchange Obligations”) to gather and disclose to the competent authorities information relating to purchasers of Token under: (i) the United States Foreign Account Tax Compliance Act provisions enacted under the United States Hiring Incentives to Restore Employment Act and any guidance, or regulations relating thereto (FATCA); (ii) any other legislation, regulations, or guidance enacted in any jurisdiction which seeks to implement similar tax reporting, tax information exchange, reporting, and/or withholding tax regimes (including the OECD Common Reporting Standard on the automatic exchange of financial account information); (iii) any intergovernmental Application between the Cayman Islands (or any Cayman Islands government body) and the U.S. or any other jurisdiction (including any government bodies in any other such jurisdiction), entered into, in order to comply with, facilitate, supplement, or implement the legislation, regulations or guidance described in (i) and (ii), including the OECD Multilateral Competent Authority Application; and (iv) any legislation, regulations or guidance in the Cayman Islands that give effect to the foregoing.
Purchaser hereby agrees to execute properly and provide to the Company in a timely manner any documentation or other information that the Company or its agents may request in writing from time to time in connection with the Tax Information Obligations. Purchaser waives any provision under the laws and regulations of any jurisdiction that would, absent a waiver, prevent or inhibit the Company’s compliance with applicable law as described in this paragraph, including but not limited to by preventing either (i) the Purchaser from providing any requested information or documentation, or (ii) the disclosure by the Company and its agents of the provided information or documentation to applicable regulatory authorities.
Without limitation, Purchaser hereby agrees to provide any documentation or other information regarding Purchaser and Purchaser’s beneficial owners requested by the Company or its agents in connection with the Tax Information Exchange Obligations. If Purchaser provides information and/or documentation that is in anyway misleading, or Purchaser fail to provide the Company or its agents or delegates with the information and
documentation that has been requested, (whether or not such action or inaction leads to compliance failures by the Company, or a risk of the Company or its token holders being subject to withholding tax or other penalties), the Company reserves the right:
- - to take any action and/or pursue all remedies at the Company’s disposal including, without limitation, compulsory reversion of Purchaser’s acquisition of Token in full or in part; and
- - to hold back from any reversion proceeds in respect of the Token so reverted, any liabilities, costs, expenses, or taxes arising (directly or indirectly) from such action or inaction.
Further, Purchaser shall have no claim against the Company, or any of the Company’s agents or delegates, for any form of damages or liability as a result of actions taken or remedies pursued by or on behalf of the Company in order to comply with the Tax Information Exchange Obligations.