TERMS OF TOKEN SALE
IMPORTANT: These Terms of Token Sale (as may be amended, modified, changed or updated from time to time, the “Terms”) govern the use of the xbullion.io website (including any sub-domains and any services accessible thereon, the “Website”) and the sale of gold-backed tokens (“GOLD”) by xbullion Holdings a Cayman Islands exempted limited company (the “Company”) by purchasers thereof (“you” or “purchaser”).
By accessing the Website, you acknowledge that you have read, understand, and agree to be bound by these Terms so far as they relate to the use of the Website.
By purchasing GOLD (whether the Website or otherwise), transferring or taking physical delivery of GOLD, you acknowledge that you have read, understand, and agree to be bound by these Terms and agree that any purchaser or other transferee of GOLD shall be subject to these Terms.
Prior to purchasing GOLD or accessing the Website you should carefully consider these terms and, to the extent necessary, consult a lawyer, accountant, and/or tax professional, as applicable. If you have any questions regarding these Terms, please contact the Company at email@example.com.
If you do not agree to these Terms, as amended or modified by any subsequent amendment, change or update: (a) do not use the Website or any services, information, links or content contained on the Website (b) do not purchase GOLD (whether though the Website or otherwise), and (c) do not sell or transfer any GOLD you already hold (unless such sale is carried out in accordance with these Terms, as so amended, modified, changed or updated).
These Terms may be amended, changed, or updated by the Company at any time and whilst reasonable efforts will be made to alert holders of GOLD or potential purchasers of material changes hereto, such changes may be made without prior notice to you. Any holder of GOLD will be deemed to have accepted these Terms (as may be amended, changed or updated by the Company) by (and such amended terms will be effective immediately upon): (i) purchasing or transferring GOLD or taking physical delivery of the gold represented thereby following the date hereof or such amendment (whether from the Company or from or to a holder thereof through the Website or otherwise); or (ii) otherwise by express consent of both such holder of GOLD and the Company.
Notwithstanding the foregoing, the terms set out in paragraph 21 hereof and each other term hereof to the extent that it relates to the use of the Website (the “Website Terms”) may be modified, changed, supplemented or updated by the Company in its sole discretion at any time without advance notice and your continued use of the Website will confirm your acceptance of those Website Terms as modified, changed, supplemented or updated.
These Terms are first effective 31 July 2020.
Only Persons who are not Prohibited Persons and otherwise are approved by the Company are permitted to purchase GOLD. Any Person that is not eligible that purchases GOLD (whether from the Company or from a holder thereof through the Website or otherwise) will be in breach of these Terms and may have any Fiat, Digital Tokens, funds, proceeds or other property, confiscated (all as defined in Schedule 1), be restricted from purchasing or transferring GOLD, taking physical delivery of the gold represented thereby, and/or have restricted or no access to services available through the Website. By purchasing GOLD in any way other than through the Website, you also agree to these Terms and that any purchaser or other transferee of GOLD from you shall be subject to these Terms.
These Terms, together with the incorporated materials, constitute the entire agreement and understanding with respect to your access of the Website and any purchase and holdings of GOLD between you and the Company or any successor issuer of GOLD (together with any successors or assigns) (each of you and the Company being a “Party” and collectively, the “Parties”).
The Terms of Service (as defined below) are incorporated into these Terms by reference. Please note that all transactions involving GOLD may be subject to fees levied by the Company or affiliated entities from time to time or as otherwise agreed between you and the Company or such affiliates. In the event of any inconsistency between these Terms and any other pages, policies, terms, conditions, licenses, limitations, or obligations contained within or on the Website (including any whitepaper), these Terms shall prevail. By purchasing GOLD, you acknowledge and agree that any information in the any whitepaper issued regarding GOLD is of a descriptive nature only and is not intended to be legally binding on the Company or its affiliates.
The purchase of GOLD carries a high level of risk and is not appropriate for persons who do not possess the appropriate level of knowledge and experience to deal in them. The Company is under no obligation to assess the suitability of GOLD for purchasers or users of the Website and any comment or statement which may be made by the Company or any of its affiliates, agents or representatives in relation to GOLD should under no circumstances be considered as investment or legal advice and should not be received or relied upon as such.
The access or use of the Website is void where such access or use is prohibited by, would constitute a violation of, or would be subject to penalties under applicable Laws, and shall not be the basis for the assertion or recognition of any interest, right, remedy, power, or privilege.
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 Gold tokens.
By purchasing GOLD, you agree to the limitations of liability set out in paragraph 18 (Limitation of Liability) hereof. Purchaser agrees to buy, and the Company agrees to sell, GOLD in accordance with the following terms:
- 1. Interpretation
Definitions: In these Terms and all documents incorporated herein by reference, capitalised words shall have the meanings set out in the definitions in Schedule 1 unless otherwise indicated:
Headings: The headings and sub-headings in these Terms are for ease of reference only and are not to be taken into account in the construction or interpretation of any provision or provisions to which they refer.
Extended Meanings: Unless otherwise specified in these Terms, words importing the singular include the plural and vice versa and words importing gender include all genders.
Governing Law: These Terms shall be governed by and construed and enforced in accordance with the Laws of the Cayman Islands, and shall be interpreted in all respects as a Cayman Islands contract. Any dispute, controversy, claim or action arising from or related to your access or use of the Website or these Terms likewise shall be governed by the Laws of the Cayman Islands, exclusive of choice-of-law principles. For clarity, the acquisition and loss of rights in rem to the physical gold shall also be governed by the Laws of the Cayman Islands.
U.S. Financial Institutions: Persons, regardless of whether or not they are U.S. Persons with accounts that are U.S. Accounts, may be prohibited at the discretion of the Company from directly or indirectly holding or owning GOLD in any way or otherwise transacting on or using GOLD, or the Website, if the Company believes or suspects that they are making a deposit, withdrawal, or transfer of Fiat or Digital Tokens to, from, or through any U.S. Financial Institution to facilitate the purchase of GOLD.
- 2. GOLD Tokens
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.
Each GOLD token reflects ownership of an undivided specific interest in one gram of gold held in the Gold Reserves. Gold delivered upon the purchase of one GOLD Token will consist of one gram held by the Custodian on behalf of the GOLD token holders as Gold Reserves. Delivery to you of the associated specific interest in the Gold Reserves represented by each GOLD token shall be completed upon the purchase or transfer to you of such GOLD token and your acceptance of such delivery. Upon and following such delivery, you shall be deemed to have instructed the Custodian to hold the gold represented by the GOLD token on your behalf in accordance with the terms hereof and the Custodian shall so hold at its premises the Gold on your behalf as, and for so long as you remain, the holder of the GOLD token and the underlying gold represented thereby. The undivided interest in one gram on a specific bullion bar in the Gold Reserves owned through a GOLD token may be reallocated by the Company on behalf of the GOLD token holders, from time to time and without notice, to one gram on a different specific bar of gold in the Gold Reserves in order to facilitate transactions in and physical delivery of GOLD tokens as well as to address fractionalization of ownership. Each GOLD token holder, by holding a GOLD token, irrevocably consents to any such reallocation. Any reallocation will be automatic and instantaneous so that each GOLD token maintains its undivided specific ownership interest in one gram of gold held in Gold Reserves, at all times.
The Company holds physical gold in 1:1 direct proportion to the GOLD tokens on issue. The gold held in the Gold Reserves is:
- - at least 99.99% purity;
- - capable of being traded on international bullion markets;
- - insured in the Gold Reserves; and
- - audited quarterly by the Company’s auditing partners. The Company will endeavor to make audit reports available within a fortnight of them being received by the Company.
The Company may charge storage fees to all token holders starting no sooner than September 1, 2020 by issuing to the Company new GOLD tokens, thereby diluting the value of existing GOLD tokens. The storage fee will be in line with industry practice, and such storage fee will be passed on to all GOLD token holders on a pro rata basis. The full methodology and exact timing of the storage fee will be disseminated at least thirty (30) days prior to the implementation of such storage fees.
The storage fees are an obligation of all GOLD token holders. By purchasing GOLD tokens, you agree to assign the obligation to pay any and all storage fees tied to the GOLD tokens to subsequent holders of such GOLD tokens, and by receiving transfers of GOLD tokens, token holders agree to accept the assignment of such obligation.
GOLD has an intrinsic fee, whereby 0.19% of the total amount of GOLD will be deducted and paid to the Company when GOLD is transferred from a compatible address to another compatible address. Further fees may be incurred pursuant to the Relocation Terms (as defined below),
It is not the Company’s responsibility to ensure that GOLD is capable of being traded on third party cryptocurrency exchanges and secondary markets. The Company does not have control over GOLD which is purchased, sold or traded on such secondary markets and the terms of any such sales. Notwithstanding the foregoing, purchasers of GOLD will be deemed to have accepted these Terms upon receipt of any GOLD.
GOLD holders maintain ultimate custody and responsibility to ensure GOLD is stored in a secure wallet. Whilst GOLD may be kept on an exchange oﬀering the tokens, the most secure method of storing GOLD may be in a secured wallet within the user’s custody with an oﬄine backup to the wallet.
- 3. Overview of GOLD Token Sale
You must be legally permitted to purchase, receive, possess, and make use of GOLD in your relevant jurisdictions. You warrant that you are of legal age to purchase GOLD in your jurisdiction.
The Company reserves the right to bar transactions from or to, to undertake enhanced due diligence, or to suspend or terminate the administration of the Website for or with any user for any reason (or for no reason) at any time subject to any limitations imposed by applicable Laws. The Company may, in its sole discretion, perform enhanced due diligence procedures. At all times, you may be subject to enhanced due diligence procedures. If you decline to provide requested due diligence information or otherwise do not reply timely or substantively with the documentation or data requested, the Company has the absolute discretion to suspend or terminate the sale of GOLD to you immediately or to restrict the use of GOLD held by you.
Token Price: The price per GOLD token shall be the xbullion spot price of 1g of gold as displayed in the Website in $USD at the time the Purchaser’s purchase of GOLD is accepted by the Company.
Accepted Form of Payment in Token Sale: $USD (for the avoidance of doubt, the Company reserves the right to change the accepted form of payment at any time, at its sole discretion.)
Minimum Token Buy: 1 GOLD Token
- 4. How to Participate in the sale of GOLD
To purchase GOLD you will be required to complete the whitelisting instructions on the 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 your source of funds) which can be found at https://xbullion.io/wp-content/uploads/2020/09/1.8-AML-Compliance-Manual-XBULLION-15-Sept-2020.pdf, the “Compliance Procedures”) and to provide sufficient information to the Company such that you are able to demonstrate your eligibility to participate in the sale of GOLD in accordance with these Terms, all applicable laws, and other governing regulations and provisions. If purchasing from the Company, you shall transfer payment, in $USD, for the number of GOLD you wish to purchase to the Company’s receiving wallet address or nominated bank account, the details of which wallet & bank will be available after completing the KYC process).
- 5. After the sale of GOLD
Holders of GOLD should have no expectation of ownership or influence over the governance of the Company. If you wish to sell your GOLD, you shall ensure that the buyer of any such GOLD 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 GOLD and an individual’s holding of GOLD tokens is not required to be reflected, recognized, or recorded in any account or ledger maintained by the Companysave in connection with the Compliance Procedures.
- 6. Physical Delivery
Upon you receiving a GOLD token, you shall be deemed to have received delivery of the gold represented thereby and to have instructed the Custodian to hold the gold represented by the GOLD on your behalf in accordance with the terms hereof at its premises. Verified holders of GOLD may, subject to these Terms and the Relocation Terms (as defined below) opt to take physical delivery of the gold represented hereby (‘physical delivery’ being used herein to refer to the relocation of the gold represented by a GOLD to a location (other than that of the Custodian) directed by the holder of the GOLD).
As at the date of these Terms, the minimum amount of gold which may be physically delivered is 1kg of gold (represented by 1,000 GOLD) [and may be delivered in whole increments of 1kg thereafter]. GOLD tokens are not legal tender or money and are not monetary instruments.
Verified holders of GOLD may request the physical delivery of the underlying one gram of gold from the Gold Reserves subject to conditions (including minimum delivery size) and fees prescribed by the Company (or its nominee) and in effect at the time of the delivery request (the “Relocation Terms”) and holders will be required to consent to the Relocation Terms prior to any physical delivery being effected. There can be no guarantee that the Relocation Terms will be acceptable to you. In addition to the minimum delivery size and amongst other terms, the Relocation Terms shall set out procedures, risk of loss, fees and limitations in respect of insurance and delivery logistics (the costs which may be borne by the token holder in accordance with the Relocation Terms).]
Subject to the Relocation Terms, the Company will make commercially reasonable efforts to process a verified GOLD holder’s request for physical delivery of the gold promptly. However, it may take several business days for any physical delivery to be completed. The Company reserves the right to delay the physical delivery of the gold if the delay is necessitated by the illiquidity or unavailability or loss of any Gold Reserves backing the GOLD tokens or as otherwise required by Laws, the Relocation Terms or demanded or lawfully requested by any Government.
Gold bars do not generally contain exactly 1,000 grams of gold. The GOLD token holder seeking to take physical delivery of the gold bar will only take physical delivery of the number of GOLD tokens that corresponds to the number of grams on the applicable bullion bar and the remaining GOLD tokens will be returned to the token holder. In the unlikely event the gold bar to be delivered contains more than 1,000 grams of gold, the GOLD holder seeking to take physical delivery of the gold bar will be required to either (a) provide the applicable additional GOLD tokens so that the number of GOLD tokens held by the GOLD holder and to be cancelled following the physical deliver corresponds to the number of grams of gold on the applicable bullion bar, or (b) pay an additional amount of Fiat necessary to cover the cost of the excess gold (based on current market prices for gold in the Swiss gold market)
Subject to the Relocation Terms, a GOLD token holder can elect to receive physical delivery of their gold bar at a place of their choosing. The Company will send the gold to you upon passing KYC and whitelisting and otherwise subject to the Relocation Terms. To confirm availability of this service and the Relocation Terms, please contact firstname.lastname@example.org. The election to receive physical delivery is subject to a changing fee structure and other conditions set out in the Relocation Terms. Please contact email@example.com for more information and a quote for this service.
There is a risk that some or all of the Gold Reserves held by the Custodian could be lost, damaged or stolen or that access to some or all of the Gold Reserves could also be restricted. The loss or damage borne from any of these events would be borne by the holders of GOLD representing ownership in the affected bullion bars and not borne by GOLD holders with interests in bullion bars that are not lost, damages or stolen.
While the Company has contracted with the Custodian, the Company is vaulting the Gold Reserves with the Custodian as representative of the GOLD holders pursuant to the terms of an agreement (as may be amended from time to time, the “Custody Agreement”).
The Custodian holds the Gold Reserves on behalf of the GOLD holders, and each is an intended third-party beneficiary of the Custody Agreement, and is entitled, through the Company acting as its agent, to bring claims against the Custodian, subject to the limitations on claims and liability set forth in the Custody Agreement and these Terms. Any recovery of judgment in favor of the Company acting as agent for holder(s) of GOLD shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Company, its agents and counsel, be for the benefit of the holder(s) of GOLD in respect of which such judgment has been obtained. [Holders of GOLD shall have the right to direct in writing the time, method and place of conducting any proceeding for any remedy available to the holders of GOLD pursuant to the Custody Agreement, the Company shall have the right to decline to follow any such direction if the Company, being advised by counsel, determines that the action so directed may not lawfully be taken, or if the Company in good faith shall determine that the proceedings so directed would be illegal or subject it to personal liability or be unduly prejudicial to the rights of the holders of GOLD not parties to such direction. Nothing in these Terms shall impair the right of the Company to take any action deemed proper by the Company against the Custodian.]
Each GOLD holder, by purchasing GOLD, appoints the Company as its agent on its behalf with regard to (i) entering into the Custody Agreement to arrange for the Custodian to hold the gold represented by the GOLD held by the token holder on behalf of such token holder; (ii) the powers, rights, titles, benefits and interests (both present and future) constituted by and conferred on the token holder or for the benefit thereof under or pursuant to the Custody Agreement (including, without limitation, the benefit of all covenants, undertakings, representations, warranties and obligations given, made or undertaken to the any GOLD holder in the Custody Agreement. The Company hereby accepts such appointment pursuant to the terms set forth herein and therein.
In accordance with the Custody Agreement, the Custodian maintains insurance with regard to its business in such amount and on such terms and conditions as it considers appropriate, which is not expected to cover the full amount of Gold Reserves. The Company is not a beneficiary of any such insurance and does not have the ability to dictate the existence, nature or amount of coverage maintained by the Custodian.
- 7. Scope of Terms
- 8. Security
You are responsible for implementing all measures for securing the wallet, vault, or other storage mechanism you use to receive and hold GOLD purchased from the Company, including any requisite private key(s) or other credentials necessary to access such storage mechanism(s) and to ensure that your wallet, vault, or other storage mechanism is compatible with GOLD. If your private key(s) or other access credentials are lost, you may lose access to your GOLD. The Company is not responsible for any losses, costs, or expenses relating to lost access credentials, from the use of an incompatible or unsecure wallet or the inaccurate communication by you of a digital wallet address.
- 9. All Purchases of GOLD are Final; Refusal of Purchase Requests
All purchases of GOLD are final and non-refundable save as expressly set out in these Terms. By purchasing GOLD you acknowledge 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 Laws or regulation or in accordance with the Relocation Terms. If the Company believes, at its sole discretion, that any owner of GOLD creates a regulatory or other legal risk, or adverse effects for the Company or GOLD, the Company reserves the right, at its sole discretion, to buy all GOLD from such token holders at the current market price or to suspend or terminate the sale of GOLD to such person immediately or to restrict the use of GOLD held by such token holders. The Company reserves the right to refuse or cancel GOLD purchase requests at any time in its sole discretion.
- 10. Taxation of GOLD and Taxation Related to the sale of GOLD
The purchase price that you pay for GOLD is exclusive of all applicable taxes. You are responsible for determining what, if any, taxes apply to your purchase of GOLD, 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 GOLD.
You bear the sole responsibility in determining if the purchase of GOLD or the potential appreciation or depreciation in the value of GOLD over time has tax implications for you in your relevant jurisdiction.
By purchasing GOLD, you agree 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 GOLD.
- 11. Privacy
- 12. Acknowledgment and Assumption of Risks
You acknowledge and agree that there are risks associated with purchasing GOLD, holding GOLD, and using GOLD, as disclosed and explained herein and in Exhibit A hereto. If you have any questions regarding these risks, please contact us at firstname.lastname@example.org. BY PURCHASING GOLD, YOU EXPRESSLY ACKNOWLEDGE AND ASSUME THESE RISKS.
- 13. Prohibited Uses
You may not:
- - purchase GOLD or use the Website in order to disguise the origin or nature of illicit proceeds of, or to further, any breach of applicable Laws, or to transact or deal in any contraband Digital Tokens, Fiat, funds, property, or proceeds;
- - purchase GOLD or use the Website if any applicable Laws, including, but not limited to, AML Laws, CTF Laws, Anti-Corruption Laws, and Economic Sanctions Laws, prohibit, penalise, sanction, or expose the Company to liability under these Terms;
- - purchase GOLD or use the Website or any financial services of any U.S. Financial Institution, whether or not an Associate of the Company, to facilitate, approve, evade, avoid, or circumvent any applicable Laws, including, but not limited to, AML Laws, CTF Laws, Anti-Corruption Laws, and Economic Sanctions Laws;
- - purchase GOLD or use the Website to evade taxes under the Laws of the Cayman Islands, the United States, or any other jurisdiction(s) applicable to you;
- - purchase or redeem GOLD through the Website with anything other than Fiat, funds, keys, property, or Digital Tokens that have been legally obtained by you and that belong to you;
- - use the Website to interfere with or subvert the rights or obligations of the Company or the rights or obligations of any other site user or any other Person;
- - trade using misleading or inaccurate information presented to the Website or to the Company or take advantage of any technical glitch, malfunction, failure, delay, default, or security breach;
- - use the Website to engage in conduct that is detrimental to the Company or to any other Website user or any other Person;
- - take advantage of any technical glitch, malfunction, delay, default or security breach on the Website;
- - falsify any account, Website registration, exchange, or administration details provided to the Company or any of its Associates, impersonate another Person or misrepresent your affiliation with a Person;
- - falsify or materially omit any information or provide misleading or inaccurate information requested by the Company or any of its Associates;
- - cause injury to, or attempt to harm, the Company any of its Associates or any Person through your access to the Website;
- - promote discrimination based on race, religion, nationality, disability, sexual orientation, gender or gender identity, or age;
- - have more than one account and on the Website;
- - where you are subject to prohibitions or restrictions as set out in these Terms, access the Website or use any virtual private network, proxy service, or any other third-party service, network, or product with the effect of disguising your IP address or location, or access the Website from, or being subject to, the jurisdiction of any Prohibited Jurisdiction or Government or Government Official thereof;
- - utilise the Website for the financial or other benefit of a Prohibited Person; or
- - violate, promote, or cause a violation of, or conspire or attempt to violate these Terms or applicable Laws.
- 14. Representations and Warranties
In consideration of the Company’s acceptance of your offer to purchase GOLD and recognising its reliance thereon, you covenant, agree, represent and warrant to the Company on any date on which you purchase or transfer GOLD that:
- - You have read, understand, and are in full compliance with these Terms (including all Exhibits) and the Terms of Service available to you and you understand that, by purchasing, or otherwise receiving, GOLD, you are accepting all of the terms and conditions set forth herein;
- - You have 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 GOLD;
- - You have obtained sufficient information about GOLD and the Company to make an informed decision to purchase GOLD and have otherwise had opportunity to contact the Company at email@example.com with any questions regarding purchasing GOLD;
- - You are acquiring GOLD solely for your 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 you are an individual purchasing GOLD on behalf of any entity, you are authorised to accept these Terms on such entity’s behalf and that such entity will be responsible for breach of You understand that your purchase of GOLD does not involve the purchase or receipt of shares, ownership, these Terms by you or any other employee or agent of such entity
- - You are legally permitted to purchase, receive, possess, and make use of GOLD in your jurisdiction; you are of legal age to purchase GOLD in your relevant jurisdiction, and you are not aware of any other legal reason to prevent you from receiving GOLD; and, further, you are not a Prohibited Person;
- - Your purchase of GOLD hereunder was not made using funds stemming from illegal or unethical activities or sources; and youare not purchasing or using GOLD for any illegal purpose, and will not use GOLD for any illegal purpose;
- - You will comply with any applicable tax obligations in your jurisdiction arising from your purchase of GOLD, and you accept that you bear sole responsibility for determining the tax implications, if any, relating to (i) the purchasing, allocation, use or ownership of GOLD, (ii) the potential appreciation or depreciation in the value of GOLD over time, if any, (iii) the sale and purchase of GOLD, and (iv) any other action or transaction related to GOLD;
- - You waive any right that you may have, or may obtain in the future, to participate in a class action lawsuit or a class wide arbitration against any entity or individual involved with the sale of GOLD;
- - Neither the Company nor any member of the Company has provided you with any advice regarding whether GOLD is a suitable token for you;
- - You understand that the Company is not currently required to register with the Cayman Islands Monetary Authority because GOLD is not a share, trust unit or partnership interest and accordingly is not currently considered an equity interest for the purposes of the Mutual Funds Law (2020 Revision) of the Cayman Islands. You understand that the Cayman Islands Monetary Authority has therefore not reviewed these Terms and has not passed any judgment on the merits of the Company or acquiring GOLD. The Cayman Islands Monetary Authority will have no oversight of the operations of the Company or GOLD. The Virtual Assets (Service Providers) Law 2020 has recently been passed which, when it is in force, will require the Company to be regulated and register with the Cayman Islands Monetary Authority.
- - You understand that any new laws imposed in the Cayman Islands (or amendments to the existing laws of the Cayman Islands could, among other things: (i) prohibit the sale, purchase or transfer of GOLD or otherwise make holding them illegal, (ii) require the Company to register itself or GOLD 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 GOLD, and that such new laws or amendments could be imposed very quickly and without warning;
- - You are not making a regulated investment, as this or any similar term may be interpreted by any regulatory agency in its relevant jurisdiction;
- - You take sole responsibility for any restrictions and risks associated with receiving and holding GOLD, including, without limitation, those set out in Exhibit A;
- - To the extent permitted by law, you understand that the Company makes no warranty whatsoever, either expressed or implied, regarding the future success of GOLD, the gold market, or the Ethereum network or any other network on which the Company may ultimately build the Company’s network and the GOLD;
- - You accept that you are obtaining GOLD on an “as is” and “under development” basis and accept that the Company is providing GOLD without being able to provide any warranties in relation to GOLD, including, but not limited to, title, merchantability or fitness for a particular purpose;
- - You have not and will not supply the Company with inaccurate or misleading information relating to your purchase of GOLD including, without limitation, as to your identity and source of funds. You 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 your purchase of GOLD and allocate GOLD to you, and you 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 you have supplied to the Company;
- - You acknowledge and agree that any instructions received or undertaken through your login credentials or from your authorised e-mail address on file with the Company are deemed to be valid, binding, and conclusive, and that the Company and its Associates may act upon those instructions without any liability or responsibility attaching to it;
- - If you are using the Website or purchasing GOLD on behalf of a legal entity, (i) such legal entity is duly organised and validly existing under the applicable laws of the jurisdiction of its organisation; and (ii) you are duly authorised by such legal entity to act on its behalf;
- - You will not trade or otherwise transact with the Company with anything other than Fiat, funds, or Digital Tokens that have been legally obtained by you and that belong to you;
- - You are currently in compliance with, and must, at your own cost and expense, comply with all Laws that relate to or affect these Terms, including, but not limited to, AML Laws, CTF Laws, Anti-Corruption Laws, Economic Sanctions Laws, Tax Information Exchange Laws or other tax Laws;
- - You consent to any and all tax and information reporting under AML Laws, CTF Laws, Anti-Corruption Laws, Economic Sanctions Laws, Tax Information Exchange Laws or other tax Laws as the Company may reasonably determine;
- - Neither you nor any of your Affiliates shall use any Digital Tokens, Fiat, property, proceeds or funds directly or indirectly (i) on behalf of or for the benefit of a Prohibited Person or any Person subject to the jurisdiction of a Prohibited Jurisdiction; (ii) in violation of or as prohibited, restricted, or penalised under applicable Economic Sanctions Laws; or (iii) in any way that would violate, be inconsistent with, penalised under, or cause the omission of filing of any report required under applicable AML Laws, CTF Laws, or Economic Sanctions Laws;
- - You have not (i) violated; (ii) been fined, debarred, sanctioned, the subject of Economic Sanctions-related restrictions, or otherwise penalized under; (iii) received any oral or written notice from any Government concerning actual or possible violation by you under; or (iv) received any other report that you are the subject or target of sanctions, restrictions, penalties, or enforcement action or investigation under, any applicable Laws, including, but not limited to, AML Laws, CTF Laws, Anti-Corruption Laws, or Economic Sanctions Laws;
- - Neither you nor any of your Affiliates is: (i) itself or owned (beneficially or of record) or controlled by a Sanctioned Person; (ii) involved in any transaction, transfer, or conduct that is likely to result in you or your Affiliates becoming a Sanctioned Person; (iii) residing or domiciled in, or transferring Digital Tokens, Fiat, funds, or property to, from, or through any Digital Tokens Wallet, or other account in, or engaging in any transaction on the Website from a Prohibited Jurisdiction; or (iv) a Government or Government Official of a Prohibited Jurisdiction;
- - Neither you nor any of your Affiliates has directly or indirectly offered, promised, given, or authorised any payment, or offered, promised, given, or authorised the giving of anything else of value, including, but not limited to, any Digital Tokens or Fiat, to a Government Official or individual employed by another entity in the private sector in violation of any applicable Anti-Corruption Laws;
- - You will accurately and promptly inform the Company if you know or have reason to know whether any of the foregoing representations or warranties no longer is correct or becomes incorrect.
- 15. Capacity and Experience
You are responsible for the decision to acquire GOLD and have legal competence and capacity to accept these Terms through your purchase of GOLD. By purchasing GOLD hereunder, you acknowledge that you have the knowledge, expertise, and experience in financial matters to evaluate the risks of acquiring GOLD, are 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 your entire GOLD acquisition and that you are qualified and authorised to make such an acquisition decision and, to the extent deemed necessary, have consulted your own advisors and legal counsel regarding the acquisition of GOLD. In making the decision to acquire GOLD, you have 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 you are acting on behalf of an entity, by purchasing GOLD hereunder you acknowledge that you have 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 GOLD.
- 16. Indemnification
To the fullest extent permitted by applicable Laws, you hereby agree 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 (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 GOLD, (ii) Purchaser’s responsibilities or obligations under these Terms, (iii) Purchaser’s violation of these Terms, (iv) any action brought by the Company against the Custodian on behalf of you in your capacity as a holder of GOLD, (v) your access to or use of the Website; or (vi) Purchaser’s violation of any rights of any other person or entity in connection with GOLD and/or these Terms. The Company reserves the right to exercise sole control over the defense, at your 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 you and the Company.
- 17. Disclaimer of Warranties
GOLD 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 TOKENS, 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 GOLD IS RELIABLE, CURRENT OR ERROR-FREE, MEETS YOUR REQUIREMENTS, OR THAT DEFECTS IN GOLD WILL BE CORRECTED. THE COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE TOKENS, THE USE OF GOLD, OR THE DELIVERY MECHANISM FOR GOLD IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DOES NOT WARRANT THAT THE USE OF GOLD 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 GOLD, 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 you in connection with the sale of GOLD.
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 you.
- 18. Limitation of Liability
You acknowledge and agree 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 the Company or any of the Company Parties 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 none of the Company or any of its Company Parties shall 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 GOLD, or arising out of any interaction with smart contract implemented in relation to GOLD. You acknowledge that the Company is not liable for the conduct of third parties, including the Company Parties and other purchasers of GOLD, and that the risk of purchasing and using GOLD rests entirely with you. To the maximum extent permissible under law, under no circumstances will the Company be liable to you for more than the amount you have paid to the Company for the purchase of GOLD. 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 you.
- 19. Release
To the fullest extent permitted by applicable law, you release 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. You expressly waive any rights you 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 you may know or suspect to exist in its favor at the time of agreeing to this release.
- 20. Arbitration
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 arbitrators 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 representative 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.
- 21. Website Terms
- A. Third Party Content
The Company may display third-party content, advertisements, links, promotions, logos and other materials on the Website for your convenience only. The Company and its Affiliates do not approve of, control, endorse or sponsor any third parties or third-party content, and make no representations or warranties of any kind regarding third-party content, including, without limitation, the accuracy, validity, legality, copyright compliance, or decency of such content. Neither the Company nor its Affiliates is responsible or liable for your use of or interaction with any third-party content. Neither the Company nor its Affiliates are responsible for any of the content on third-party sites linked to the Website nor are they obliged to review or approve of such sites or their content. Neither the Company nor its Affiliates warrant that the links to these third-party sites work or are up-to-date.
- B. Individual User Content
If you post, upload, input, provide or submit your personal information to the Company, including by way of example only, your name, email address, IP address, cryptocurrency wallet address, text, code or other information and materials, create an account on the Website or provide any feedback to the Company or its Affiliates, you must ensure that the content provided by you is true, accurate, up to date and complete and that any such content does not breach or infringe the intellectual property rights of any third-party. Neither the Company nor its Affiliates endorse any user content that is transmitted, stored or processed via the Website or which is sent to the Company or its Affiliates and neither the Company nor its Affiliates are responsible or liable for any such content. If you post content to the Website you are solely responsible and liable for all such content and represent and warrant to the Company that (i) you own all intellectual property rights (or have obtained all necessary permissions) to provide that content to the Company; (ii) your content will not violate any agreements or confidentiality obligations; and (iii) your content will not violate, infringe or misappropriate any intellectual property right or other proprietary right, including the right of publicity or privacy, of any other person or entity.
You agree to notify the Company immediately of any unauthorized use of any content you have posted to the Website or any other breach of your security which may affect the Company or any of its Affiliates. Neither the Company nor any of its Affiliates will be liable for any loss or damages that you may incur as a result of someone else using your content. However, you could be held liable for losses incurred by the Company or another party due to someone else using your content. You may not use anyone else’s content at any time without the permission of that person or entity.
By posting, uploading, inputting, providing or submitting your content to the Company or its Affiliates, you grant the Company and its Affiliates a non-exclusive, worldwide, perpetual, right and permission to use, reproduce, copy, edit, modify, translate, reformat, create derivative works from, distribute, transmit, publicly perform and publicly display your content and to sub-license such rights to others. Any content submitted by you on the Website may be accessed by the Company and its Affiliates globally.
Although the Company and its Affiliates have no obligation to screen, edit or monitor content posted by users of the Website, the Company and each of its Affiliates reserve the right, and have absolute discretion, to remove, screen or edit such content. Furthermore, if the Company or any of its Affiliates have reason to believe that there is likely to be a breach of security, breach or misuse of the Website, if you breach any of your obligations under these Terms or for any other reason at our discretion, we may suspend your use of the Website or any services available thereon at any time.
- C. Feedback
If you decide to submit questions, comments, suggestions, ideas, original or creative materials or other information to the Company or any of its Affiliates you do so at your own risk and not based on any request or solicitation from the Company or any of its Affiliates. The Company and its Affiliates reserve the right to use your feedback for any purpose at no charge and without compensation to you. Do not send feedback if you expect to be paid or want to continue to own or claim rights to it. If you decide to send feedback, you acknowledge and understand that neither the Company nor any of its Affiliates makes any assurances that your feedback will be treated as confidential or proprietary.
- D. Acceptable Use
You must only use content on the Website for its stated purposes. You must not use the Website to:
- - publish, post, send, upload, submit, display or disseminate any information or material and/or otherwise make available or engage in any conduct that is unlawful, discriminatory, harassing, libelous, defamatory, abusive, threatening, harmful, offensive, obscene, tortious or otherwise objectionable;
- - display, upload or transmit material that encourages conduct that may constitute a criminal offence, result in civil liability or otherwise violate or breach any applicable laws, regulations or code of practice;
- - interfere or violate the legal rights (such as rights of privacy and publicity) of others or violate others use or enjoyment of the Website;
- - violate any applicable laws or regulations;
- - use the Website or links on the Website in any manner that could interfere with, disrupt, negatively impact or inhibit other users from using the Website or links on the site or that could damage, disable, overburden or impair the functioning of the Website or our servers or any networks connected to any of our servers in any manner;
- - create a false identity for the purpose of misleading others or otherwise misrepresent yourself to be another person or a representative of another entity or otherwise misrepresent that you have an affiliation with a person, entity or group;
- - mislead or deceive the Company or any of its Affiliates, their respective representatives and any third parties who may rely on the information provided by you, by providing inaccurate or false information, which includes omissions of information;
- - disguise the origin of any material transmitted through the services provided by the Website (whether by forging message/packet headers or otherwise manipulating normal identification information);
- - violate, infringe or misappropriate any intellectual or industrial property right of any person (such as copyright, trademarks, patents, or trade secrets, or other proprietary rights of any party);
- - upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property;
- - send, upload, display or disseminate or otherwise make available material containing or associated with spam, junk mail, advertising or any other form of unauthorized advertising or promotional material;
- - access any content, area or functionality of the Website that you are prohibited or restricted from accessing or attempt to bypass or circumvent measures employed to prevent or limit your access to any content, area or functionality of this Website;
- - obtain unauthorized access to or interfere with the performance of the servers which host the Website or provide the services on this site or any servers on any associated networks or otherwise fail to comply with any policies or procedures relating to the use of those servers;
- - attempt to gain unauthorized access to any services or products, other accounts, computer systems, or networks connected to any of our servers through hacking, password mining, or any other means;
- - obtain or attempt to obtain any materials or information through any means not intentionally made available through the Website or its services;
- - harvest or otherwise collect, whether aggregated or otherwise, data about others including email addresses and/or distribute or sell such data in any manner;
- - use any part of the Website other than for its intended purpose; or
- - use the Website to engage in or promote any activity that violates these Website Terms.
- E. Aggregated Information
- F. Intellectual Property
You may link to the Website provided you do so in a way that is fair and legal and does not damage the Company’s (or any of its Affiliates’) reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on the Company’s part without prior, express, written consent.
The Website is protected by copyright, trademark, and other intellectual property or proprietary rights laws in various jurisdictions. All rights not expressly granted to you in these Terms are reserved. Except as expressly authorized by the Company you will not (a) license, sublicense, rent, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any Person all or any part of the Website in any way; (b) copy, modify, republish, distribute, or make derivative works based upon all or any part of the Website; (c) “frame” or “mirror” all or any part of Website on any other server or wireless or Internet-based device; or (d) reverse engineer or access all or any part of the Website in order to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions, or graphics of all or any part of the Website, or (iii) copy any ideas, features, functions, or graphics of all or any part of the Website.
- G. Disclaimer
The Website and all information, products and services provided through it are provided “as is” and on an “as available” basis without any representations, warranties, promises or guarantees whatsoever of any kind including, without limitation, any representations, warranties, promises or guarantees regarding the accuracy, currency, completeness, adequacy, availability, suitability or operation of the Website, any products or services we may provide through it or the information or material it contains.
- A. Complete Agreement
These Terms set forth the entire understanding between you and the Company with respect to the purchase and sale of GOLD and the use of the Website. For facts relating to the sale and purchase, you agree to rely only on these Terms in determining purchase decisions and understand that the Terms govern the sale of GOLD and supersede any public statements about GOLD made by third parties or by the Company or individuals associated with the Company (including any Company Parties), past and present and current.
- B. Severability
You and the Company agree that if any provision of these Terms is found illegal or unenforceable, 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 you 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 or otherwise in writing between the Parties, 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. You agree that the remedies to which the Company is entitled include, but are not limited to, (i) injunctions to prevent breaches of these Terms and to enforce specifically the terms and provisions hereof, and you waive the requirement of any posting of a bond in connection with such remedies, (ii) the right to recover the amount of any Losses by set off against any amounts that the Company would otherwise be obligated to pay to you, and (iii) the right to seize and recover against any of your GOLD other Digital Tokens, Fiat or other funds, or your interests therein, that are held by the Company or any of its Associates.
- D. Third Party Rights
Any Company Party 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 to 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 (including any Company Party other than the Company) who is not a party to these Terms shall not be required for any termination or rescission to any variation, waiver, assignment, 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.
- E. Amendments; Updates to the Terms
These Terms may be amended, changed, or updated by the Company at any time and whilst reasonable efforts will be made to alert holders of GOLD or potential purchasers of material changes hereto, such changes may be made without prior notice to you. Any holder of GOLD will be deemed to have accepted these Terms (as may be amended, changed or updated by the Company) by (and such amended terms will be effective immediately upon): (i) purchasing or transferring GOLD or taking physical delivery of the gold represented thereby following the date hereof or such amendment (whether from the Company or from or to a holder thereof through the Website or otherwise); or (ii) otherwise by express consent of both such holder of GOLD and the Company.
Notwithstanding the foregoing, the Website Terms may be modified, changed, supplemented or updated by the Company in its sole discretion at any time without advance notice and your continued use of the Website will confirm your acceptance of those Website Terms as modified, changed, supplemented or updated.
- F. Assignment
The Company may assign its rights and obligations under these Terms. Any of the rights, duties, and obligations contained or incorporated herein, are not assignable by you without prior written consent of the Company. Any attempt by you to assign these Terms without written consent of the Company is void. Subject to the foregoing, these Terms, and any of the rights, duties, and obligations contained or incorporated herein, shall be binding upon and inure to the benefit of the heirs, executors, administrators, personal or legal representatives, successors and assigns of you and of the Company. None of the provisions of these Terms, or any of the rights, duties, and obligations contained or incorporated herein, are for the benefit of or enforceable by any creditors of you or the Company or any other persons. These Terms shall survive the transfer of any GOLD by you.
- G. Electronic Delivery of Reports, Electronic Acceptance and Other Communications
You agree and consent to receive electronically all communications, agreements, documents, notices, and disclosures that the Company may provide in connection with your purchase and use of GOLD. The Company will provide such communications to you by posting them on the Website and/or by emailing them to you at the primary email address associated with your account registered with the Company. You acknowledge and agree that you shall not be entitled to receive any information from the Company in paper format. If you do not have reliable access to the internet or e-mail, you should not acquire GOLD. You accept 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 interfered 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 you have any doubts about the authenticity of an electronic communication purportedly sent by the Company, you are required to contact the purported sender immediately.
Any notice to be served on the Issuer by the Purchaser may be served by sending it to the following email address: firstname.lastname@example.org. Such notice shall be deemed effective and received by the Company on the date on which the electronic mail is sent to the Company, provided if such notice is sent on a day which is not a business day in Sydney, Australia or after 17:00 (5.00 p.m.) (Australia Eastern Standard Time) on any business day in Sydney, Australia, it will instead be deemed to have been given at 9:00 a.m. (Australia Eastern Standard Time) on the next business day. All notices provided to the Company must be in English.
These Terms may be agreed to by the purchaser electronically through the use of tick boxes or other means of indicating acceptance. The indication by the purchaser of their acceptance of these Terms through such means shall be deemed to be as valid as if the purchaser had manually signed these Terms and shall be deemed to form a binding contract between the purchaser and the Company on the date of such acceptance by the Purchaser. The Company shall be authorized to rely on such electronic acceptance, and shall not be required to undertake any investigation into the validity of such acceptance.
- H. Cooperation with Legal Authorities
You acknowledge and agree 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. You hereby acknowledge and agree that you have read, understand, and are bound by the additional terms set forth in Exhibit B related to such cooperation efforts made by the Company.
- I. Further Assurance
You agree to do anything (including, but not limited to, obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed) which the Company asks and considers necessary to: (i) bind the Purchaser and any other person intended to be bound in connection with any provision in these Terms; (ii) confirm whether the Purchaser is complying with applicable law and these Terms; and/or (iii) comply with the Company’s or any of its Associates’ legal, regulatory and governance requirements.
- J. Language
Currently, only English versions of any Company’s communications are considered official. The English version shall prevail in case of differences in translation.
- K. Relationship of the Parties
Neither these Terms, nor purchasing GOLD, create any form of partnership, joint venture, or any other similar relationship between you and the Company. Except as otherwise provided herein, these Terms are intended solely for the benefit of you and the Company and are not intended to confer third-party beneficiary rights upon any other person or entity, save that these Terms confer rights and remedies on the Company Parties as set forth in paragraphs 16 (Indemnities), 18 (Limitation of Liability) and 19 (Release). Notwithstanding any other term of this agreement, the consent of any person who is not a Party to these Terms (including, without limitation, any Company Parties, excluding the Company) is not required for any amendment to, variation of or release, rescission, or termination of, these Terms.
- L. Survival
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.
- M. Force Majeure:
The Company is not responsible for damages caused by delay or failure to perform undertakings under these Terms when the delay or failure is due to fires; strikes; floods; power outages or failures; acts of God or the state’s enemies; acts of any Government or Government Official; any and all market movements, shifts, or volatility; computer, server, or Internet malfunctions; security breaches or cyberattacks; criminal acts; delays or defaults caused by common carriers; acts or omissions of other Persons; or, any other delays, defaults, failures or interruptions that cannot reasonably be foreseen or provided against. In the event of force majeure, the Company is excused from any and all performance obligations under these Terms.
- N. Intellectual Property:
The Company and its Associates retain all right, title and interest in each their respective intellectual property, including, without limitation, inventions, ideas, concepts, code, discoveries, processes, marks, methods, software, compositions, formulae, designs, techniques, information and data, whether or not patentable, copyrightable or protectable in trademark (and where patentable, copyrightable or protectable, whether or not so protected) and any trademarks, copyrights or patents based thereon. Nothing in these Terms shall confer or be deemed to confer on any Purchaser any rights or licenses in such intellectual property and no Purchaser may use any such intellectual property for any reason without the prior written consent from the Company or the Associate, as relevant.
- O. Remedies
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.
- P. Different Terms
Prior or further sales of GOLD to other persons may be on different terms and conditions, and at a different price and conversion rate to those set out in these Terms. The Company reserves the right to distribute GOLD in any manner they determine in their sole discretion (including to persons who may work for the Company’s or any of its Associates’ business or future business).
- Q. No Petition
The Purchaser hereby covenants that it shall not take any action to present a petition or commence any case, proceeding, proposal or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement in the nature of insolvency proceedings, adjustment, winding-up, liquidation, dissolution, composition or analogous relief with respect to the Company or the debts or obligations of the Company.
“Affiliate” means, in relation to either Party, a direct or indirect subsidiary of the Party, a holding company of the Party, and any other subsidiary of that holding company;
“AML” means anti-money laundering, including, but not limited to, all Laws applicable to the Parties prohibiting money laundering or any acts or attempted acts to conceal or disguise the identity or origin of; change the form of; or move, transfer, or transport, illicit proceeds, property, funds, Fiat, or Digital Tokens, including, but not limited to, the promotion of any unlawful activity such as fraud, tax evasion, embezzlement, insider trading, financial crime, bribery, cyber theft or hack, narcotics trafficking, weapons proliferation, terrorism, or Economic Sanctions violations, which may also require internal controls to detect, prevent, report, and maintain records of suspected money laundering or terrorist financing;
“Anti-Corruption” means all Laws applicable to each Party prohibiting corruption or bribery of Government Officials, kickbacks, inducements, and other related forms of commercial corruption or bribery;
“Associates” means the Company and each and every one of its shareholders, directors, officers, Affiliates, employees, contractors, agents, partners, insurers, and attorneys;
“Controlling Person” means any Person who owns more than a 25 percent interest in any Person [or affiliate];
“Copyrights” has the meaning set out in paragraph 21 (L) of these Terms;
“Custodian” means the custodian(s) of the Gold Reserves;
“CRS” means the common reporting standard or the Standard for Automatic Exchange of Financial Account Information;
“CTF” means counter-terrorist financing;
“Digital Tokens” means a digital representation of value that functions as (i) a medium of exchange; (ii) a unit of account; (iii) a store of value, and/or (iv) other similar digital representations of rights or assets, which is neither issued nor guaranteed by any country or jurisdiction and does not have legal tender status in any country or jurisdiction, typically including blockchain-based assets or rightsincluding sovereign cryptocurrency or virtual currency (and shall include, for the avoidance of doubt, GOLD);
“Digital Tokens Wallet” means a software application (or other mechanism) that provides a means for holding, storing, and transferring Digital Tokens, including a user’s digital address, Digital Tokens balance, and cryptographic keys;
“Economic Sanctions” means financial sanctions, trade embargoes, export or import controls, anti-boycott, and restrictive trade measures enacted, administered, enforced, or penalized by any applicable Laws, including, but not limited to, those relating to gold or precious metals;
“FATCA” means the United States Foreign Account Tax Compliance Act, as enacted by Title V, Subtitle A of the Hiring Incentives to Restore Employment Act, P.L 111-147 (2010), as amended;
“FATF” means the Financial Action Task Force;
“Fiat” means the money or currency of any country or jurisdiction that is: (i) designated as legal tender; and, (ii) circulated, customarily used, and accepted as a medium of exchange in the country or jurisdiction of issuance;
“FinCEN” means the Financial Crimes Enforcement Network of the U.S. Department of the Treasury;
“Gold Reserves” means specific gold bullion bars meeting the criteria set out in paragraph 2 hereof and held by the Custodian in a custodial vault, identifiable by a unique serial number;
“GOLD” means the Digital Tokens available for sale at the Website from time to time and further described in these Terms;
“Government” means any national, federal, state, municipal, local, or foreign branch of government, including, but not limited to, any department, agency, subdivision, bureau, commission, court, tribunal, arbitral body, or other governmental, government appointed, or quasi-governmental authority or component exercising executive, legislative, juridical, regulatory, or administrative powers, authority, or functions of or pertaining to a government instrumentality, including, but not limited to, any parasternal company, or state-owned (majority or greater) or controlled business enterprise;
“Government Approval” means any authorization, license, permit, consent, approval, franchise, concession, lease, ruling, certification, exemption, exception, or waiver by or with any Government necessary to conduct the business of either Party or the execution, delivery and performance of the Website or any transaction entered into under these Terms;
“Government Official” means an officer or employee of any Government, a director, officer, or employee of any instrumentality of any Government, a candidate for public office, a political party or political party official, an officer or employee of a public international organization, and any Person who is acting in an official capacity for any of the foregoing, even if such Person is acting in that capacity temporarily and without compensation;
“Laws” means all laws, statutes, orders, regulations, rules, treaties, and/or official obligations or requirements enacted, promulgated, issued, ratified, enforced, or administered by any Government that apply to you or the location at which the gold is stored;
“Losses” means, collectively, any claim, application, loss, injury, delay, accident, cost, business interruption costs, or any other expenses (including, but not limited to, attorneys’ fees or the costs of any claim or suit), including any incidental, direct, indirect, general, special, punitive, exemplary, or consequential damages, loss of goodwill or business profits, work stoppage, data loss, computer failure or malfunction, or any and all other commercial losses;
“Marks” has the meaning set out in paragraph 21(L) of these Terms;
“OFAC” means Office of Foreign Assets Control of the U.S. Department of the Treasury;
“Person” includes an individual, association, partnership, corporation, company, other body corporate, trust, estate, and any form of organization, group, or entity (whether or not having separate legal personality);
“Prohibited Jurisdiction” means any of: (i) Cuba, Democratic People’s Republic of Korea (North Korea), the Government of Venezuela,Iran, Pakistan, Syria or Crimea (a region of Ukraine annexed by the Russian Federation); and (ii) any jurisdiction for which the sale of GOLD, or any offer or solicitation in respect of GOLD, would require registration or licensing not obtained by the Company, or otherwise would be unlawful or that restricts or licenses the activities of the kind that can be accessed or used through the Website (and where the Company does not comply with such restrictions or has obtained such license);
“Prohibited Person” means any Person who is (i) a Sanctioned Person; (ii) located in a Prohibited Jurisdiction or a citizen or resident of, Government or Government Official of, or Person in or subject to jurisdiction of, any Prohibited Jurisdiction; (iii) U.S. Person; (iv) citizen or resident of Canada, the Cayman Islands or Switzerland; (v) Person from or in any jurisdiction that does not meet international AML–CTF standards (including any jurisdiction identified by the FATF as high-risk, non-cooperative, or strategically deficient jurisdictions, including, but not limited to, Bahamas, Botswana, Cambodia, Ghana, Iceland, Mongolia, Panama, Serbia, Trinidad and Tobago, Yemen and Zimbabwe); (vi) Person that is a Government Official or Politically Exposed Person within the meaning of the FATF’s 40 Recommendations; (vii) Person that presents a risk of any exposure to penalties, sanctions, or other liabilities under AML Laws, CTF Laws, Anti-Corruption Laws, Economic Sanctions Laws, or tax Laws that may apply; (viii) Person that the Company determines is acting in the United States or Territory or Insular Possession of the United States (whether or not by, to, through, or from any U.S. Financial Institution) in violation of, causing any other Person, including, but not limited to, any of the Associates, to violate, attempting or conspiring to violate, or evading or circumventing these Terms or applicable Laws; and (ix) Person that fails to meet any user due diligence standards, requests, or requirements of the Company, or otherwise appears to be of high risk, including, but not limited to, any of the foregoing factors.
“Prohibited Use” has the meaning set out in paragraph 13 of these Terms;
“Sanctions List” means the “Specially Designated Nationals and Blocked Persons” (“SDN”) List and the Non-SDN Lists, including, but not limited to, the “Sectoral Sanctions Identifications List”, published by OFAC; the Section 311 Special Measures for Jurisdictions, Financial Institutions, or International Transactions of Primary Money Laundering Concern published by FinCEN; and, any other foreign terrorist organization or other sanctioned, restricted, or debarred party list, or under Economic Sanctions, AML, or CTF Laws of or by Governments of the Cayman Islands (including any sanctioned, restricted, or debarred party list under the Laws of the United Kingdom and applicable in the Cayman Islands), United States and the United Nations;
“Sanctioned Person” refers to any Person or Digital Tokens Wallet address that is: (i) specifically listed in any Sanctions List; (ii) directly or indirectly owned 50 percent or more by any Person or group of Persons in the aggregate, or a Digital Tokens Wallet associated with such Person or Persons, referred to in any Sanctions List, or Government or Government Official of any Prohibited Jurisdiction; or (iii) that is subject to any Government Approval or otherwise sanctioned, restricted, or penalized under applicable Laws;
“Tax Information Exchange Laws” means Laws relating to the exchange of information relating to taxes between Governments, including, but not limited to, FATCA and CRS;
“Terms” means these terms and conditions of sale and service, as they may be changed, amended, or updated from time to time.
“Territory or Insular Possession of the United States” means the Commonwealth of Puerto Rico; the U.S. Virgin Islands; Guam; the Commonwealth of the Northern Mariana Islands; and all other territories and possessions of the United States, other than the Indian lands (as that term is defined in the Indian Gaming Regulatory Act);
“United States” or “U.S.” means the several states of the United States and the District of Columbia;
“U.S. Account” means any account that is held by one or more U.S. Persons or non-U.S. entities that have one or more Controlling Persons who is a U.S. Person;
“U.S. Citizen or U.S. Resident” includes any U.S. citizen, U.S. lawful permanent resident, individual who meets the “substantial presence” test described in section 7701(b)(3) of the U.S. Internal Revenue Code of 1986 (as amended), protected individual under section 1324b(a)(3) of the U.S. Immigration and Nationality Act, or individual who holds a passport issued by the United States Government;
“U.S. Financial Institution” means any U.S. Person and any of its affiliates, branches, offices, or agents incorporated, organized, or located in the United States or Territory or Insular Possession of the United States that is engaged in the business of: (i) accepting deposits; (ii) making, granting, transferring, holding, or brokering remittances, loans, or credits; or (iii) purchasing or selling foreign exchange, securities, commodity futures or options, or procuring purchases and sellers thereof, whether as principal or agent, and this term applies to affiliates, branches, offices, and agencies of any foreign financial institution that are located in the United States or Territory or Insular Possession of the United States, but not such foreign financial institution’s affiliates, branches, offices, or agencies located outside the United States and Territory or Insular Possession of the United States;
“U.S. Person” means:
- - a S. Citizen or U.S. Resident;
- - a corporation, partnership, or other entity established or organized in or under the Laws of the United States;
- - any estate of a decedent who was a S. Citizen or U.S. Resident;
- - any trust if (i) a court within the United States is able to exercise primary supervision over the administration of the trust, and (ii) one or more United States Persons have the authority to control all substantial decisions of the trust;
- - any Person organized or incorporated outside the United States and the Territory or Insular Possession of the United States in which any of the foregoing, whether singularly or in the aggregate, directly or indirectly (i) holds a 50 percent or greater equity interest by votes or value, (ii) holds a majority of seats or memberships on the board of directors of the entity, or (iii) authorizes, establishes, directs, or otherwise controls the actions, policies, personnel decisions, or day-to-day operations of the Person; or
- - any pension plan for the employees, officers or principals of a legal entity unless the pension plan is primarily for foreign employees of such entity.
CERTAIN RISKS RELATING TO THE PURCHASE, SALE AND USE OF GOLD
Important Note: As noted elsewhere in these Terms, GOLD is not being structured or sold as a security 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 expressly 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 GOLD, you expressly acknowledges and assumes the following risks:
DISCLOSURES REGARDING GOLD
GOLD is provided on an ‘as is’ basis
GOLD is 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 GOLD, including any warranty that the GOLD 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 GOLD
There are no warranties that GOLD will be listed or made available for exchange for any other Digital Token and/or Fiat. It shall be explicitly cautioned that if GOLD is 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 GOLD, the sale of GOLD may not result in an active or liquid market for GOLD, and the price of GOLD may be volatile. Holders of GOLD may not be able to dispose of GOLD easily and where no secondary market develops, a GOLD token holder may not be able to liquidate at all. Proposed transfers of GOLD 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. You should be aware of the restrictions on their subsequent sale.
Risks relating to highly speculative prices
The valuation of Digital Tokens in a secondary market is usually not transparent, and highly speculative. GOLD does not hold any ownership rights to the Company’s assets and, therefore, is not backed by any tangible asset. The value of GOLD in the secondary market, if any, may fluctuate greatly within a short period of time. There is a high risk that you could lose your entire contribution amount. In the worst-case scenario, GOLD could be rendered worthless. GOLD constitutes an agreement from the Company that it will re-purchase GOLD for their value in gold bullion.
Unlike bank accounts or accounts at financial institutions, GOLD is uninsured unless you specifically obtain private insurance to insure it. 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 you.
Risk of unfavourable regulatory action in one or more jurisdictions
The regulatory status of Digital Tokens 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 GOLD. Developments in laws, regulations, policies or rules may alter the nature of the operation of the blockchain network upon which the GOLD is 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 GOLD.
Purchaser bears responsibility of legal categorisation
There is a risk that GOLD might be considered a security in certain jurisdictions, or that it might be considered to be a security in the future. The Company does not provide any warranty or guarantee as to whether GOLD will be a security in your jurisdiction. You will bear all consequences of GOLD being considered a security in your jurisdiction. You are responsible for satisfying yourself that the acquisition and/or disposal of GOLD is legal in your jurisdiction, and you undertake not to use GOLD in any jurisdiction where doing so would be unlawful. If you establish that the purchase or use of GOLD is not legal in your jurisdiction (or would only be legal if the Company had taken additional steps such as registration or licensing), you should not acquire GOLD and immediately stop using or possessing GOLD.
Acquiring GOLD in exchange for Digital Tokens will most likely continue to be scrutinised by various regulatory bodies around the world, which may impact the usage of GOLD. The legal ability of the Company to provide or support GOLD 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 GOLD is illegal in a certain jurisdiction, the Company may cease operations in that jurisdiction, or adjust GOLD in a way to comply with applicable Law.
You bear responsibility for complying with transfer restrictions in respect of GOLD.
GOLD may be placed on third-party exchanges, giving future purchasers and users an opportunity to openly buy GOLD.
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 your digital wallet, the Company’s smart contract or the availability of GOLD 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 the theft of your GOLD.
GOLD purchased by you may be held by you in a Digital Tokens 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 your Digital Tokens Wallet or vault storing the GOLD will result in loss of such GOLD. 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 used by you may be able to misappropriate your GOLD. 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 GOLD has to be technically compatible with GOLD. The failure to assure this may result in you not being able to gain access to your GOLD.
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 GOLD.
Internet transmission risks
There are risks associated with using GOLD 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 GOLD, howsoever caused. Transactions in cryptocurrency may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Digital Token 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 GOLD Issuer
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 GOLD 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 GOLD 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 GOLD. 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 GOLD.
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.
Digital Tokens such as GOLD 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 GOLD, including unanticipated risks. Such risks may further materialise 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 Company’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 expressions 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 strategy, financial needs, or the results of the sale of the Tokens or the value or price stability of GOLD.
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 materially 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 sale of GOLD should not place undue reliance on these forward-looking statements.
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.
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 Company’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. You must take appropriate measures to verify all of the information set forth herein.
ADDITIONAL COMPLIANCE TERMS
The Company (and/or its delegate) may request such evidence as is necessary to verify the identity and source of your funds and to confirm the anti-money laundering status of any transferring GOLD 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 you are such a person, conducts further due diligence, and determines that such acquisition shall be permitted; or (iv) for a foreign shell bank.
Tax Information Exchange Obligations
You acknowledge 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 GOLD 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.
You hereby agree 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. You 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) you 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, you hereby agree to provide any documentation or other information regarding beneficial ownership requested by the Company or its agents in connection with the Tax Information Exchange Obligations. If you provide information and/or documentation that is in anyway misleading, or you 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 your acquisition of GOLD in full or in part; and
- - to hold back from any reversion proceeds in respect of GOLD so reverted, any liabilities, costs, expenses, or taxes arising (directly or indirectly) from such action or inaction.
Further, you 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.