Updated: 29 March 2019
The following Terms and Conditions, together with any other terms incorporated by reference (the "Terms") govern your ("you" or the "Purchaser") purchase from ProToken OÜ, a private limited company registered in Estonia ('us', 'we' or the "Company") of cryptographic tokens representing fractional ownership in commodities NIWIX Certificate ("
Purchaser and Company may be referred as Party or Parties in below.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT PURCHASE OR MAKE OFFERS TO PURCHASE NCER FROM THE COMPANY. IF YOU HAVE ANY QUESTIONS REGARDING THESE TERMS, PLEASE CONTACT THE COMPANY AT email@example.com
The Parties agree as follows: 1. GENERAL
1.1 NCER is a cryptographic token to be issued by the Company. NCER is based on Ethereum. NCER is accompanied with NIWIX utility payment tokens ("NWX"). NCER and NWX together referred to as the Tokens. Purchase of NCER and future handling of the Tokens requires access to generally accepted storage and transmission systems of Ethereum.
1.2 The Tokens are intended to support the business model as contemplated by the Company, as defined in the light paper (the "Light Paper") provided at https://NIWIX.net/
(the "Website") as of the date the Purchaser receives the Tokens. To the extent they do not contradict these Terms, the rights connected to the Tokens are subject to the limitations set out in the Light Paper, but this should in no case create obligations for the Company in addition to the ones contained in these Terms.
1.3 The Tokens can be held and used at the sole discretion of the holder to the extent this does not contradict these Terms. The Company aspires to achieve the milestones described in the Light Paper. The Company makes no representations nor warrants that such milestones are achievable or will be achieved.
1.4 In respect of the tasks described in 1.3 above, the Company has only such obligations and duties as expressly described in these Terms. Other obligations and duties are excluded.
1.5 The Company is not an investment advisor and does not give investment advice to you. 2. CONDITIONS OF SALE
2.1 YOU MAY NOT MAKE AN OFFER OR ACQUIRE THE TOKENS IF YOU ARE A CITIZEN, RESIDENT (TAX OR OTHERWISE) OR GREEN CARD HOLDER OF THE UNITED STATES OF AMERICA, PEOPLE'S REPUBLIC OF CHINA OR ANY OTHER COUNTRY WHICH LEGISLATION LIMITS OR FORBIDS THE OFFERING, SALE, ACQUISITION OF AND/OR OTHER TRANSACTIONS WITH THE TOKENS, OR THE ENVISIONED ACTIVITIES OF THE COMPANY.
2.2 When you purchase, or otherwise receive, the Tokens, you may only do so by accepting the following conditions and, by doing so, You warrant and represent that the following are a true and accurate reflection of the basis on which You are acquiring the Tokens:
2.2.1. the Company did not provide You with any advice regarding whether the Tokens is a suitable investment for you;
2.2.2. you have sufficient understanding of the functionality, usage, storage, transmission mechanisms and intricacies associated with cryptographic tokens, such as Ether, as well as blockchain-based software systems generally;
2.2.3. you are legally permitted to receive and hold and make use of the Tokens in your and any other relevant jurisdiction;
2.2.4. you will supply us with all information, documentation or copy documentation that we require in order to allow us to accept your purchase of NCER and allocate the Tokens to you;
2.2.5. you have not supplied us with information relating to your purchase of NCER or otherwise which is inaccurate or misleading;
2.2.6. you will provide us with any additional information which may be reasonably required in order that we can fulfil our legal, regulatory and contractual obligations, including but not limited to any anti-money laundering obligation;
2.2.7. you will notify us promptly of any change to the information supplied by you to us;
2.2.8. you will comply with our KYC policy and procedural steps as made available on the Website and as amended from time to time at our discretion;
2.2.9. you are of a sufficient age to legally obtain the Tokens, and you are not aware of any other legal reason to prevent you from purchasing NCER;
2.2.10. you take sole responsibility for any restrictions and risks associated with receiving and holding the Tokens, including but not limited to these set out in these Terms;
2.2.11. by acquiring NCER, you are not making a regulated investment, as this term may be interpreted by the regulator in your jurisdiction;
2.2.12. you are not obtaining or using the Tokens for any illegal purpose, and will not use the Tokens for any illegal purpose;
2.2.13. you waive any right you may have / obtain to participate in a class action lawsuit or a class wide arbitration against any entity or individual involved with the sale or distribution of the Tokens;
2.2.14. your acquisition of the Tokens does not involve purchase or receipt of shares, ownership or any equivalent in any existing or future public or private company, corporation or other entity in any jurisdiction;
2.2.15. to the extent permitted by law and provided we act in good faith, the Company makes no warranty whatsoever, either expressed or implied, regarding the future success of the Company, the Tokens, the Ethereum network and/or achieving any of the aspirations set forth in the Light Paper;
2.2.16. you accept that the Tokens are created and you obtain the Tokens on an "as is" basis. Therefore, provided the Company acts in good faith, you accept that the Company is providing the Tokens without being able to provide any warranties in relation to the Tokens, including, but not limited to, title, merchantability or fitness for a particular purpose;
2.2.17. you accept that you bear sole responsibility for determining if (i) the acquisition, the allocation, use or ownership of the Tokens, (ii) the potential appreciation or depreciation in the value of the Tokens over time, if any, (iii) the sale and purchase of the Tokens, and/or (iv) any other action or transaction related to the Tokens has tax implications. You are solely responsible for performing any and all obligations related to relevant tax implications, including, among other, declaring and paying applicable taxes. 3. CANCELLATION
Your purchase of NCER from the Company is final, and there are no refunds or cancellations. We reserve the right to refuse or cancel your purchase request at any time in our sole discretion. 4. RISKS
You acknowledge and agree that there are risks associated with purchasing NCER, owning the Tokens as disclosed and explained in these Terms. BY PURCHASING NCER YOU EXPRESSLY ACKNOWLEDGE AND ASSUME THESE RISKS. 5. SECURITY
You are responsible for implementing reasonable measures for securing your wallet or vault you use to receive and hold the Tokens you purchased from the Company, including any requisite private key(s) or other credentials necessary to access such wallet or vault. Notwithstanding any other provision of these Terms, the Company will not be responsible or liable for any damages, losses, costs, penalties, fines or expenses arising out of or relating to (i) your failure to implement reasonable measures to secure your wallets or vaults you use to receive and hold the Tokens or the relevant access credentials or (ii) the loss of or unauthorized use of any of your access credentials. 6. REGISTRATION INFORMATION
6.1 We may collect certain information from you, including your phone number, email address and/or wallet address, in connection with your Registration (your "Registration Information").
6.2 We may use your Registration Information for determining your eligibility for the Token Sale, determining your compliance with these Terms, providing updates to you regarding the Token Sale, facilitating your purchase of NCER and use of the Tokens, and providing notices to you under these Terms.
6.3 We may share your Registration Information as follows: (i) with consultants and other service providers who need access to such information to carry out work on our behalf, (ii) in response to a request for information if we believe disclosure is in accordance with, or required by, any applicable law, regulation or legal process, (iii) if we believe your actions are inconsistent with these Terms or to protect the rights, property and safety of Company or others, (iv) in connection with, or during negotiations of, any merger, sale of company assets, financing or acquisition of all or a portion of our business by another company, (v) between and among Company and our current and future parents, affiliates, subsidiaries and other companies under common control and ownership and (vi) with your consent or at your direction.
We may also share aggregated or deidentified information, which cannot reasonably be used to identify you.
6.4 You acknowledge that we may obtain some Registration Information from third parties, including your phone number and email address, and you authorize us to use such Registration Information in accordance with these Terms. We are not responsible for the collection, use or sharing of any information that you provide to such third parties or that such third parties collect from you.
6.5 We may determine, in our sole discretion, that it is necessary to obtain certain other information about you or (if relevant) your family members, beneficiaries, shareholders, beneficial owners, partners, directors, officers or any other individuals connected to you in order to complete the Token Sale or in order to comply with applicable laws or regulations or requests of any regulator in any relevant jurisdiction. You agree to provide us such information promptly upon request, and any information you provide in respect of any third-party individuals may be collected, used and disclosed by us in order for us or our corporate affiliates to complete the Token Sale or to comply with laws or regulations or requests of any regulator in any relevant jurisdiction. You acknowledge that we may refuse to sell NCER to you until you provide such requested information and we have determined that it is permissible to sell you NCER under applicable laws or regulations. 7. TAXES
Any amounts that you pay for NCER are exclusive of all applicable taxes. You are responsible for determining what, if any, taxes apply to your purchase of NCER, including, for example, sales, use, value added, and similar taxes. It is your responsibility to withhold, collect, report and remit the correct taxes to the appropriate tax authorities. We are not responsible for withholding, collecting, reporting, or remitting any sales, use, value added, or similar tax arising from your purchase of NCER. 8. REPRESENTATIONS AND WARRANTIES
You represent and warrant that:
8.1 You have a sufficient technical understanding of cryptographic tokens (including Ethereum), token storage mechanisms (including your identified wallet), and blockchain technology in general to understand these Terms and to appreciate the risks and implications of purchasing NCER;
8.2 You have read and understood these Terms;
8.3 You have obtained sufficient information about the Tokens to make an informed decision to purchase NCER;
8.4 You understand the restrictions and risks associated with the sale of the Tokens as set forth herein, and acknowledge and assume all such risks;
8.5 You understand, acknowledge and assume the risks associated with the purchase, holding and use of the Tokens, as explained and disclosed in these Terms;
8.6 You will comply with any applicable tax obligations in your jurisdiction arising from your purchase of NCER;
8.7 If you are purchasing NCER on behalf of any entity, (i) you are authorized to accept these Terms and to act on such entity's behalf, (ii) such entity will be responsible for breach of these Terms by you or any other employee or agent of such entity (references to "you" in these Terms refer to you and such entity, jointly), and (iii) such entity is duly organized and validly existing under the applicable laws of the jurisdiction of its organization.
8.8 You will at all times maintain control of your wallet (if any), and you will not share or disclose the account credentials associated with any other party. If you transfer the Tokens from your wallet into another wallet or vault, you will likewise at all times maintain control of such other wallet or vault, and you will not share or disclose the account credentials associated with such other wallet or vault with any other party; and You accept and acknowledge that title to, and risk of loss of, the Tokens passes from Company to you in Estonia. 9. INDEMNIFICATION
9.1 To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Company and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (the "Company Parties
") from and against all claims, demands, actions, damages, losses, costs and expenses (including attorneys' fees) that arise from or relate to: (i) your purchase or use of NCER and NWX, (ii) your responsibilities or obligations under these Terms, (iii) your violation of these Terms, or (iv) your violation of any rights of, or laws or regulations applicable to, any other person or entity.
9.2 Company reserves the right to exercise sole control over the defense, at your expense, of any claim subject to indemnification under 9.1. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Company. 10. DISCLAIMERS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE SPECIFIED IN A WRITING BY US, (A) NCER ARE SOLD ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AS TO THE TOKENS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; (B) WE DO NOT REPRESENT OR WARRANT THAT THE TOKENS ARE RELIABLE, CURRENT OR ERROR-FREE, MEET YOUR REQUIREMENTS, OR THAT DEFECTS IN THE TOKENS WILL BE CORRECTED; AND (C) WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE TOKENS OR THE DELIVERY MECHANISM FOR THE TOKENS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT WILL COMPANY OR ANY OF THE COMPANY PARTIES BE LIABLE FOR LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, WHERE RELATED TO LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE SALE OR USE OF THE TOKENS OR OTHERWISE RELATED TO THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OF ANY PARTY), OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE); AND (II) IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY AND THE COMPANY PARTIES (JOINTLY), WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF OR INABILITY TO USE THE TOKENS, EXCEED THE AMOUNT YOU PAY TO US FOR NCER. 12. Governing Law and Arbitration
These Terms will be governed by and construed and enforced in accordance with the laws of England and Wales, without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any Dispute between the Parties arising out or relating to these Terms or its subject matter or formation (including non-contractual disputes of claims) will be resolved by final and binding arbitration in accordance with the LCIA Rules. The place and seat of arbitration shall be London, there shall be three arbitrators appointed in accordance with the LCIA Rules. The language of arbitration shall be English. 13. Severability
If any term, clause or provision of these Terms is held unlawful, void or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms. 14. Disruption Event
In the event of a Disruption Event, we have the right to suspend the Token Sale. If we elect to suspend the Token Sale, we will publicly announce the suspension as soon as reasonably practicable and, prior to resuming the Token Sale, we will announce the resumption at least four (4) hours in advance. If we suspend the Token Sale for a period of time (the "Suspension Period
") pursuant to this Section 14, we will determine in our sole discretion whether to (i) nevertheless end the Token Sale on the scheduled Token Sale end date (as set out in the White Paper) or (ii) extend the Token Sale for a period equal to the Suspension Period. We will provide notice of its election in this regard in the public announcements of the resumption of the Token Sale following the Suspension Period. A "Disruption Event" means (i) any event or occurrence that causes a disruption in the functionality of the blockchain, and such disruption has a material adverse effect on the processing time for blockchain transactions, or (ii) a change in the price of Ether of twenty percent (20%) or more in any twenty-four (24) hour period. 15. Modification of Terms
We have the right to modify these Terms if we reasonably believe that such modifications are necessary to comply with applicable laws or regulations, to address technical inaccuracies or for other reasons. If we make changes, we will post the amended Terms at www.NIWIX.net
and update the "Last Updated" date above. We may also provide notice to you via email to the email address you provide during Registration. The amended Terms will be effective immediately, and your continued use or holding of the Tokens you purchased shall constitute your acceptance of the modified Terms. 16. Miscellaneous
These Terms constitute the entire agreement between you and us relating to your purchase of NCER from us. Our failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. We will not be liable for any delay or failure to perform any obligation under these Terms where the delay or failure results from any cause be- yond our reasonable control. We may assign our rights and obligations under these Terms. Purchasing NCER from us does not create any form of partnership, joint venture or any other similar relationship between you and us. Except as otherwise provided in herein, these Terms are intended solely for the benefit of you and us and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree and acknowledge that all agreements, notices, disclosures, and other communications that we provide to you, including these Terms, may be provided in electronic form. 17. PRIVACY
Currently, only English versions of any communications with the Company is considered official. The English version shall prevail in case of differences in translation. CERTAIN RISKS RELATING TO PURCHASE, SALE AND USE OF THE TOKENS THE PURCHASE OF THE TOKENS IS SUBJECT TO A HIGH DEGREE OF RISK. THERE CAN BE NO ASSURANCE THAT YOU WILL BE ABLE TO RECEIVE A RETURN OF THEIR CAPITAL OR ANY RETURNS ON THEIR INVESTMENT. PRIOR TO PURCHASING THE TOKENS, YOU SHOULD CAREFULLY CONSIDER THE RISKS ASSOCIATED WITH THE COMPANY, THE TOKENS AND CRYPTOCURRENCY EXCHANGES, TOGETHER WITH THE OTHER INFORMATION CONTAINED IN THE WHITE PAPER. THE RISK FACTORS DESCRIBED BELOW ARE NOT AN EXHAUSTIVE LIST OR EXPLANATION OF ALL THE RISKS WHICH YOU MAY FACE WHEN PURCHASING THE TOKENS AND SHOULD BE USED AS GUIDANCE ONLY. ADDITIONAL RISKS AND UNCERTAINTIES RELATING TO THE COMPANY AND THE TOKENS THAT ARE NOT CURRENTLY KNOWN TO US, OR THAT WE CURRENTLY DEEM IMMATERIAL, MAY INDIVIDUALLY OR CUMULATIVELY ALSO HAVE A MATERIAL ADVERSE EFFECT ON THE COMPANY'S BUSINESS, OPERATIONS, RESULTS, FINANCIAL CONDITION OR PROSPECTS AND, IF ANY SUCH RISK SHOULD OCCUR, YOU COULD LOSE ALL OR PART OF YOUR INVESTMENT. YOU SHOULD CONSIDER CAREFULLY WHETHER AN INVESTMENT IN THE TOKENS IS SUITABLE FOR YOU IN THE LIGHT OF YOUR PERSONAL CIRCUMSTANCES. 1. Risk of Losing Access to the Tokens Due to Loss of Private Key(s), Custodial Error or Purchaser Error
A private key, or a combination of private keys, is necessary to control and dispose of the Tokens stored in your digital wallet or vault. Accordingly, loss of requisite private key(s) associated with your digital wallet or vault storing the Tokens will result in loss of such the Tokens. Moreover, any third party that gains access to such private key(s), including by gaining access to login credentials of a digital wallet or vault service you use, may be able to misappropriate your Tokens. Any errors or malfunctions caused by or otherwise related to the digital wallet or vault you choose to receive and store the Tokens, including your own failure to properly maintain or use such digital wallet or vault, may also result in the loss of your Tokens. 2. Risks Associated with the Ethereum Protocol
Because the Tokens is based on the Ethereum protocol, any malfunction, breakdown or abandonment of the Ethereum protocol may have a material adverse effect on the platform or the Tokens. Moreover, advances in cryptography, or technical advances such as the development of quantum computing, could present risks to the Tokens and the platform, including the utility of the Tokens for obtaining services, by rendering ineffective the cryptographic consensus mechanism that underpins the Ethereum protocol. 3. Risk of Hacking and Security Weaknesses
Hackers or other malicious groups or organizations may attempt to interfere with the Tokens in a variety of ways, including, but not limited to, malware attacks, denial of service attacks, consensus-based attacks, Sybil attacks, smurfing and spoofing. 4. Risk of Uninsured Losses
Unlike bank accounts or accounts at some other financial institutions, the Tokens are uninsured unless you specifically obtain private insurance to insure them. Thus, in the event of loss or loss of utility value, there is no public insurer or private insurance arranged by us, to offer recourse to you. 5. Risks Associated with Uncertain Regulations and Enforcement Actions
The regulatory status of the Tokens and distributed ledger technology is unclear or unsettled in many jurisdictions. It is difficult to predict how or whether regulatory agencies may apply existing regulation with respect to such technology and its applications. It is likewise difficult to predict how or whether legislatures or regulatory agencies may implement changes to law and regulation affecting distributed ledger technology and its applications, including the Company and the Tokens. Regulatory actions could negatively impact the Tokens in various ways, including, for purposes of illustration only, through a determination that the Tokens are a regulated financial instrument or security that require registration and/or licensing. Company may cease operations in a jurisdiction in the event that regulatory actions, or changes to law or regulation, make it illegal to operate in such jurisdiction, or commercially undesirable to obtain the necessary regulatory approval(s) to operate in such jurisdiction. 6. Risks Arising from Taxation
The tax characterization of the Tokens is uncertain. You must seek your own tax advice in connection with purchasing the Tokens, which may result in adverse tax consequences to you, including withholding taxes, income taxes and tax reporting requirements. 7. Risk of Insufficient Interest in the Tokens or Distributed Applications
It is possible that the Tokens will not be used by a large number of individuals, companies and other entities or that there will be limited public interest in the creation and development of distributed platforms (such as the Tokens) more generally. Such a lack of use or interest could negatively impact the development of the Tokens and the potential utility of the Tokens, including its utility. 8. Risks Associated with the Development and Maintenance of the Tokens
The Tokens is still under development and may undergo significant changes over time. Although we intend for the Tokens to follow the specifications set forth in Exhibit A, and will take commercially reasonable steps toward those ends, we may have to make changes to the specifications of the Tokens for any number of legitimate reasons. This could create the risk that the Tokens, as further developed and maintained, may not meet your expectations at the time of purchasing the Tokens. Furthermore, despite our good faith efforts to develop and maintain the Tokens, it is still possible that the Tokens will experience malfunctions or otherwise fail to be adequately developed or maintained, which may negatively impact the Tokens and the potential utility of the Tokens, including its Utility. 9. Risk of Dissolution of the Company
It is possible that, due to any number of reasons, including, but not limited to, the failure of commercial relationships, or intellectual property ownership challenges, the Tokens may no longer be viable to operate and the Company may dissolve. 10. Risks Arising from Lack of Governance Rights
Since the Tokens confer no governance rights of any kind with respect to the Tokens or Company, all decisions involving the Tokens or Company will be made by Company at its sole discretion, including, but not limited to, decisions to discontinue the Tokens, to sell more the Tokens for use in the Tokens, or to sell or liquidate the Company. These decisions could adversely affect the Tokens and the Utility that you hold, including the Tokens utility. 11. Unanticipated Risks
Cryptographic tokens such as the Tokens are a new and untested technology. In addition to the risks included in this Exhibit C, there are other risks associated with your purchase, holding and use of the Tokens, including those that the Company cannot anticipate. Such risks may further materialize as unanticipated variations or combinations of the risks discussed in this Exhibit.