StablR Euro Terms and Conditions
StablR Ltd.
Malta Limited Liability Company
(March 2023)
THIS DOCUMENT IS NOT A SOLICITATION FOR INVESTMENT AND DOES NOT CONSTITUTE AN OFFER OF E-MONEY, COMMODITY, SECURITY OR ANY FINANCIAL INSTRUMENT, TRANSFERABLE SECURITIES OR ANY FORMS OF SECURITY OFFERINGS TO THE PUBLIC OR A COLLECTIVE INVESTMENT SCHEME. THESE TERMS AND CONDITIONS (‘T&Cs’) SHALL BE ISSUED TO THE PUBLIC IN LINE WITH THE VIRTUAL FINANCIAL ASSETS ACT, CHAPTER 590 OF THE LAWS OF MALTA.
StablR Euro (EURR) are not securities and do not give to Prospective Participants any rights which are closely associated with securities. These T&Cs and any other Documents which form an integral part of these T&Cs, do not constitute an offer of securities to the public by StablR Ltd. in terms of Article 2 (3) of the Companies Act, Chapter 386 of the Laws of Malta.
TABLE OF CONTENTS
PREAMBLE
-
DEFINITION AND INTERPRETATION
-
SUBSCRIPTION PRINCIPLES
-
SUBSCRIPTION AMOUNT AND THE PARTICIPATION PROCESS
-
DISSOLUTION EVENT
-
TERMINATION
-
OBLIGATIONS OF THE COMPANY
-
OBLIGATIONS OF THE PROSPECTIVE PARTICIPANT
-
TAXES
-
LIABILITY AND INDEMNITY
-
DISCLAIMER
-
PRIVACY POLICY
-
RISK FACTORS
-
MISCELLANEOUS
PREAMBLE
WHEREAS, the Company intends to accept contributions funds in exchange of the allocation of Tokens, through a VFA Allocation Event;
WHEREAS, the main purpose of StablR Euro is to provide a digital alternative to traditional forms of money that is more efficient, secure, and accessible and to be used as a medium of exchange, a store of value, and a unit of account, in a variety of contexts, including online transactions, cross-border payments, and decentralized finance (DeFi) applications;
WHEREAS, the terms and conditions of participation and other information relative to the details of the Token and VFA Offering are outlined in the White Paper, a copy of which is available on the Website;
WHEREAS, the Company declares that it has taken all reasonable care to ensure that the information enclosed in these T&Cs, the White Paper and information available on the Website, to the best of its knowledge, is in accordance with the facts and contains no omission likely to affect the Prospective Participant’s decision to participate in the VFA Allocation Event or not. The Company recommends that the Prospective Participant consults with its legal counsel, tax or financial advisor prior to investing in the VFA Allocation Event;
WHEREAS, the Prospective Participant wishes to participate in the VFA Allocation Event;
WHEREAS, the VFA Allocation Event applies only to participants who confirm that they are not Prohibited Participants. Such confirmation shall also be verified by the Company when carrying out due diligence checks on the Prospective Participant;
WHEREAS, the VFA Allocation Event intends only to accept payment by wire transfer to a bank account designated by the Company;
WHEREAS, the Company and the Prospective Participant desire to enter into a relationship in which the Prospective Participant shall acquire the Tokens in line with the Subscription Amount and the Company shall allocate such Subscription Amount of Tokens to the Prospective Participant;
WHEREAS, the Tokens are not designed to acquire shares or equivalent rights or any form of participation in the corporate decision-making of the Company;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and intended to be legally bound, the Parties agreed as follows:
1. DEFINITION AND INTERPRETATION
| AML/CTF | refers to Anti-Money Laundering and Countering the Financing of Terrorism |
| AML Regulations | the Prevention of Money Laundering and Funding of Terrorism Regulations, Subsidiary Legislation 373.01, and the 4th and 5th EU Directives on the Prevention of Money Laundering and Terrorism Financing and including the Implementing Procedures Parts 1 and 2 issued by the Financial Intelligence Analysis Unit (FIAU) |
| Company or StablR or the Issuer | StablR Ltd., a limited liability company incorporated under the Laws of Malta, bearing company incorporation number C 104007 and with the registered office address at Level 5, Carolina Court, Giuseppe Cali Street, Ta’ Xbiex XBX 1425 Malta |
| Custodian | StablR Solutions DAC, an Irish company, with company registration number 712776 and with its address at 31-32 Leeson Street Lower Dublin 2, Dublin, Ireland |
| Dissolution Event | an event whereby it becomes necessary, recommendable or advantageous for the Company to dissolve or liquidate |
| DLT | Distributed Ledger Technology |
| Documents | includes these Terms of Use, the White Paper, T&Cs and any other information relating to the Project and the use of Tokens as may be announced by the Company from time to time |
| EUR, Euro | the currency of the Member States of the European Union, that participate in the European Monetary Union |
| Exchange Rate | means the fixed exchange rate with Fiat currency, in the following proportion calculated on the day of the receipt of the Subscription Amount: 1 StablR Euro = 1 EUR |
| Fiat | a legal tender issued by a government |
| Force Majeure | shall include labour disputes or other industrial disturbances, hacking or any other cybercrime attack, or computer oriented crime, electrical, telecommunications, hardware, software or other utility failures, software or smart contract bugs or weaknesses, earthquakes, storms, or other nature-related events, blockages, embargoes, riots, strikes, acts or orders of government, acts of terrorism or war, technological change, changes in interest rates or other monetary conditions, and, for the avoidance of doubt, changes to any blockchain-related protocol |
| Intellectual Property | Means ideas, know-how, concepts, techniques, inventions, formulas, methods, information, computer programs and software, including any preparatory works, code and functions and includes but is not limited to copyrights, trademarks, patents, design rights, trade secrets, and all other rights of a similar or equivalent nature and/or description, across the whole world, and irrespective of whether such rights are registrable or unregistrable in nature which belong to the Company, are conceived and/or created by the Company or over which the Company has any rights |
| KYC | Know Your Customer – a due diligence procedure carried out by the Company in terms of AML Regulations |
| MFSA | Malta Financial Services Authority |
| Minister | means the Minister responsible for the regulation of financial services in Malta |
| Parties | shall refer to the Company and the Prospective Participant jointly, and individually they shall be referred to as a “Party” |
| Prohibited Participants | a legal person, being a Prospective Participant and being incorporated, registered or being effectively managed and/or controlled from or in:
(i) a country, jurisdiction or territory where the VFA Allocation Event or the holding and use of Tokens and/or other tokens at any moment in time is prohibited by laws, regulations, or other practices and policies in the said country, jurisdiction or territory, which is taken to include but not limited to the United States of America (‘USA’) (including tax residents of the USA) or any other jurisdiction where the aforementioned is prohibited; or in (ii) countries deemed to be high risk subject to a call for action by the Financial Action Task Force (“FATF”); or in (iii) countries which are deemed to be outside the risk appetite of the Company.
This shall also include any person representing or acting on behalf of such Prohibited Participant/s in any manner or capacity. |
| Project | the reason behind this VFA Allocation Event is to introduce the use of Tokens as a medium of exchange and to encourage the instrumental function and use of the Tokens |
| Prospective Participant | shall refer to a User, being a judicial person, who intends to (further) contribute and participate in and be bound by the applicable terms in the Documents and who intends to hold and/or use Tokens under the applicable terms in the Documents and who is a/an:
(i) Entity which is required to be authorised or regulated to operate in the financial markets. (ii) A large undertaking meeting two of the following size requirements on a company basis: a. balance sheet total: € 20,000,000 b. net turnover: € 40,000,000 c. own funds: € 2,000,000 (iii) National and regional government, public body that manages public debt, Central bank, international and supranational institution such as the World Bank, the IMF, the ECB, the EIB and other similar international organisation. Other institutional investor whose main activity is to invest in VFAs, including entities dedicated to the securitisation of assets or other financing transactions. |
| Subscription Amount | the contribution being paid by the Prospective Participant in each individual instance for the acquisition of the Tokens through the VFA Allocation Event as the Company may at its sole discretion decide to accept under the applicable terms of the Documents |
| Terms |
the Issuer’s terms of use as available on the Website
which may be amended from time to time by the
Company and which shall govern the purchase and use
of the Tokens through the Company’s Website
|
| Token(s) | a VFA token named ‘StablR Euro’ (EURR) based on ERC 20 standard protocol intended primarily to participate and benefit from the Project as outlined in the Documents |
| VFA | a VFA, or virtual financial asset, is any form of digital medium recordation that is used as a digital medium of exchange, unit of account, or store of value and that is not electronic money, a financial instrument or a virtual token, as set out in the VFA Act |
| VFA Act | Virtual Financial Assets Act, Chapter 590, Laws of Malta |
| VFA Agent | an individual registered and duly authorised with the MFSA under the VFA Act |
| VFA Allocation Event | a public offer of unlimited duration, made by the Company to accept funds in line with the Project from Prospective Participants, which contributions will be rewarded with an allocation of a determinate number of Tokens to the Prospective Participants in line with the applicable terms of the Documents |
| Wallet | a private key or a combination of private keys having a unique address and capable of receiving ERC 20 tokens including the Tokens and which is necessary to acquire, hold and dispose of Tokens |
| Website | the Company’s domain, accessible from the following link: [https://www.stablr.com/] |
| White Paper | a marketing document prepared and issued by the Company and registered with the MFSA, to explain and give a detailed description of the Token, the team, the terms and the advantages of participating in the Project. |
| Working Days | a day during which banks in Malta and the Netherlands provide full service for customers, which does not include days when bank services are only available via the internet |
reference to the terms ‘jurisdiction’, and ‘territory’ may be used interchangeably and shall have the same meaning and shall also be taken to include any determinate geographic location to the extent applicable in these T&Cs.
The term ‘wallet’ shall be construed to include ‘digital vault’ or any other storage mechanism and these terms may be used interchangeably throughout these T&Cs.
The terms ‘you’, ‘your’ and ‘participant’ may be used interchangeably and shall have the same meaning as the definition of ‘the Prospective Participant’ above.
The terms ‘we’, ‘us’, ‘our’, ‘company’, ‘issuer’ may be used interchangeably within these T&Cs and shall have the same meaning as the definition of ‘the Company’ hereabove.
Where the context so requires, the use of the masculine gender shall include the feminine and the singular shall include the plural and vice versa.
2. SUBSCRIPTION PRINCIPLES
2.1. The Prospective Participant hereby agrees to abide by the following principles:
2.1.1. The Prospective Participant is not eligible to acquire any Tokens if the Prospective Participant is a Prohibited Participant;
2.1.2. The Tokens are not available to any Prohibited Participant who is prohibited from complying with these T&Cs and acquiring, holding, using and benefiting from the Tokens or any other VFA generally or to a Prospective Participant in a country where any special or particular approval or licence is required to contribute to the VFA Allocation Event or similar event without obtaining such approval or licence and consequently would be excluded from participating in the VFA Allocation Event;
2.1.3. The Company retains the right to refuse to transfer the Tokens to any Prospective Participant or Prohibited Participant;
2.1.4. These T&Cs may only be used, and are only made available, in such country where the T&Cs and the acquisition and holding of Tokens as described herein is not prohibited by law or regulation;
2.1.5. The Prospective Participant is required to inform themselves about the content of these T&Cs, carefully read and analyse the White Paper and the Terms and consult legal counsel in its country of registration and/or residence whether it can participate in this VFA Allocation Event or whether there are any restrictions imposed upon it by any jurisdiction other than the laws of Malta;
2.1.6. If the Prospective Participant is resident, or registered in a country or territory that has declared the trade with VFAs or the participation in or subscription towards the VFA Allocation Event to be illegal, the Prospective Participant may face administrative or criminal charges when participating in this VFA Allocation Event. In such a case, any losses suffered by the Prospective Participant shall be borne solely by it and the Company shall not be held liable for such losses;
2.1.7. Subject to clause 2.1.8 below, all Tokens allocated by the Issuer to the Prospective Participant in line with the Subscription Amount are final, and there are no refunds or cancellations except as may be required by applicable law, decree, regulation, treaty or administrative act;
2.1.8. All or part of the Tokens acquired by the Prospective Participant can be exchanged back to Fiat currency at the Exchange Rate;
2.1.9. The acquisition of Tokens by the Prospective Participant in no way creates any exclusive relationship between the Prospective Participant and the Company, nor any partnership, joint venture or agency.
2.2. The Prospective Participant represents and warrants that to the extent that it is not a Prohibited Participant, it is to ensure that no prior or subsequent approval, notification, registration or licence is needed or if such is needed it is up to the Prospective Participant to obtain such prior approval, notification, registration or licence.
2.3. The Prospective Participant also confirms its understanding that:
2.3.1. the Tokens are not securities and do not carry with them any right as may be commonly associated with securities. The Tokens do not grant any rights with respect to the corporate decision making, any rights relative to receipt of dividends, any rights to vote or receive proceeds upon liquidation or any other right to receive payments from the Company. Tokens are intended to be solely used as further set out in the White Paper. The rights of the Prospective Participant in the VFA Allocation Event are limited to statutory and contractual rights according to Maltese law;
2.3.2. the Company retains all rights, title and interest in all of its Intellectual Property and data pertaining to the Website, the Project and the Tokens, whether or not patentable. The Prospective Participant may not use any of the Company’s Intellectual Property for any reason, except prior to obtaining the Company’s express consent;
2.3.3. the Company shall issue the Tokens only if the documents requested by the Company when conducting its KYC or any other verifications have been passed and approved by the Company and within 3 working days from when verifications are passed and approved
2.3.4. the Company aims to maintain the Exchange Rate as much as possible but that the Company is not in a position to guarantee the same at any point in time.
3. SUBSCRIPTION AMOUNT AND THE PARTICIPATION PROCESS
3.1. The participation process detailed on the Website and the White Paper will involve the Issuer accepting contributions from Prospective Participants during the VFA Allocation Event.
3.2. The Issuer shall not be accepting contributions from Prospective Participants who do not provide the documents and information requested by the Company for its KYC.
3.3. The Company intends to accept contributions for the Tokens in EUR through wire transfer to the Custodian’s bank account. The EUR paid for the Tokens is to be held in trust by the Custodian as collateral for the Tokens.
3.4. Acceptance to these T&Cs, the Terms and any other Documents made available via the Website together with the submission of the relevant accepted KYC documents and the contributions made by the Prospective Participant shall be legally binding on the Prospective Participant.
3.5. The Tokens are issued at the sole discretion of the Issuer and only upon the submission of the respective Subscription Amount and the satisfaction of the following cumulative conditions:
(1) The Prospective Participant has accepted the terms of these T&Cs;
(2) The Prospective Participant has transferred the Subscription Amount via wire transfer, which the Issuer has confirmed the receipt thereof;
(3) The Prospective Participant has submitted the relevant documentation as requested by the Company for its KYC and which have been accepted by the Company;
(4) The Issuer has no reason to believe that the information and documentation provided by the Prospective Participant for the Company’s KYC are incorrect or false.
3.6. After all of the above conditions are satisfied, the transfer of Tokens shall be made to the designated Prospective Participant’s Wallet within up 3 days after the contributed funds reach the Company’s bank account.
4. DISSOLUTION EVENT
4.1 In case of a Dissolution Event at any moment during the VFA Allocation Event, the Company will refund an amount equal to the Subscription Amount, subject to Clause 4.2, and payable to the Prospective Participant immediately before, or in tandem with the consummation of the Dissolution Event, subject to the rights and ranking of creditors under the Civil Code, Chapter 16, Laws of Malta.
4.2 If immediately prior to the consummation of the Dissolution Event, the assets of the Company that remain legally available for distribution to the participants, as determined in good faith by the Company’s board of directors, are insufficient to allow distribution to all the participants of their respective Subscription Amounts, then the remaining assets of the Company that are legally available for distribution, following all distributions to the shareholders and creditors, will be distributed with equal priority and pro rata among the participants in proportion to their Subscription Amount. Any distributed amount may be made in Fiat or any other VFA as the Company may at its discretion decide to distribute.
5. TERMINATION
5.1. The applicability of these T&Cs will terminate upon one of the following events, whichever comes earlier:
(a) The Prospective Participant breaches any term of these T&Cs or the Terms or cannot be onboarded in line with the Company’s KYC procedures and AML Regulations; or
(b) The Issuer is required to do so by valid court order, or binding order of a governmental authority; or
(c) The allocation of the Tokens to the Prospective Participant as outlined in Section 3 to these T&Cs; or
(d) The refund of the Subscription Amount to the Prospective Participant in certain instances as outlined in these T&Cs; or
(e) The payment to the Prospective Participant of the Subscription Amount due in terms of Section 4 to these T&Cs; or
(f) The Issuer takes the unilateral decision or is required to terminate in line with AML Regulations and its internal KYC procedures; or
(g) The Prospective Participant wishes to redeem the Tokens in line with what is set out in the Whitepaper and these T&Cs.
5.2. All provisions of the Documents and of these T&Cs which by their nature should survive termination, shall survive termination, including but not limited to, disclaimers or limitations of obligations or liability and indemnity.
6. OBLIGATIONS OF THE COMPANY
6.1. The Company hereby represents and warrants to the Prospective Participant that:
(a) The Issuer is a company duly incorporated under the Laws of Malta, and has the power to issue VFAs and to carry out business as now being conducted and as proposed to be conducted;
(b) The Company has legal right and full powers and authority to enter, execute, deliver and perform its respective obligations under these T&Cs, the Whitepaper and the Terms;
(c) The execution and performance of these T&Cs by the Company have been duly authorised by all necessary actions of the Company, and these T&Cs have been duly executed and delivered by the Company;
(d) The execution and performance of these T&Cs does not and will not breach any agreement or obligation by which the Company is bound or will not violate or infringe any applicable law or tax regulations binding the Company;
(e) The T&Cs once executed, will constitute legal, valid, binding and enforceable obligations towards the Parties;
(f) The Issuer fulfils its obligations under the VFA Act and has drawn the White Paper in line with the First Schedule of the VFA Act and registered it with the MFSA in line with Section 3(2) of the VFA Act;
(g) The Company has appointed a VFA Agent, which is duly registered with the MFSA in line with Section 7(1) of the VFA Act;
(h) The Company will provide all required information and fulfil its obligations in line with the VFA Act and so that the VFA Agent submits the certificate of compliance on an annual basis to the MFSA
(i) The EUR deposited in the Custodian’s bank account on behalf of the Company shall be segregated from any other funds or assets held or owned by the Company and is solely intended to safeguard Prospective Participants.
7. OBLIGATIONS OF THE PROSPECTIVE PARTICIPANT
7.1. The Prospective Participant hereby represents and warrants to the Company that:
(a) The Prospective Participant is a legal person duly incorporated and validly existing under the laws of the jurisdiction of its incorporation;
(b) The Prospective Participant represents and warrants that it is not a Prohibited Participant;
(c) The Prospective Participant has a legal right and full power and authority to enter into, execute, deliver and perform its respective obligations under these T&Cs;
(d) The T&Cs have been duly executed and delivered by the Prospective Participant;
(e) The execution and performance of these T&Cs does not and will not breach any agreement or obligation by which the Prospective Participant is bound;
(f) The execution and performance of these T&Cs will not violate or infringe any applicable laws or tax regulations binding the Prospective Participant;
(g) The Prospective Participant is acting on its own account, not as a nominee or as an agent, and not with a view to assign any part thereof to a third person;
(h) The Prospective Participant understands that the Project is at its initial stage and that it can bear the economic risk of the Token acquisition and has knowledge and experience in financial or business matters and is capable of evaluating merits and risks of such T&Cs;
(i) The Prospective Participant has substantial knowledge in financial, tax and technology matters which may enable the Prospective Participant to evaluate the legal, economic and other merits and risks which might be closely associated with this type of Project including but not limited to the acquisition of the Tokens;
(j) The Prospective Participant hereby warrants to the Company that it has carefully read, understood and accepted the various risks associated with these T&Cs, including the Prospective Participant’s participation in the VFA Allocation Event and with the risks associated with the Tokens’ acquisition;
(k) The Prospective Participant hereby warrants that it shall be its sole responsibility to determine what taxes shall be applied to it for the VFA Allocation Event and subsequent receipt of the Tokens. Any amount that the Prospective Participant pays for the Tokens are exclusive of all applicable taxes. The Issuer is not responsible for withholding or collecting any or remitting any tax arising from the purchasing of Tokens during the VFA Allocation Event;
(l) The Prospective Participant understands and agrees that the Tokens have no rights, uses or functionalities, express or implied, except from the use of the Tokens as explained in the Documents;
(m) The Prospective Participant warrants to the information and documentation provided to the Company for its KYC.
8. TAXES
8.1. The Prospective Participant shall be responsible to pay all applicable taxes and duties, if any, that may arise in connection with the acquisition of the Tokens.
8.2. The Issuer bears no liability or responsibility with respect to any tax consequences to the Prospective Participant arising from the subsequent sale of the Tokens.
9. LIABILITY AND INDEMNITY
9.1. The Issuer is not liable for any delay or failure to perform any obligation under these T&Cs where the delay or failure results from any cause beyond the Issuer’s reasonable control including any instance of Force Majeure.
9.2. The Prospective Participant will indemnify and hold harmless the Company, its directors, employees, attorneys, and representatives to the fullest extent permitted by law from any claims, damages, losses, liabilities, penalties, fines, costs and expenses arising out of or relating to a third-party claim concerning the T&Cs, including and without limitation to any claims related to taxes and duties mentioned.
9.3. This release and indemnity shall also cover any loss, damage, calls on capital, levies, taxes, fees, damages, costs, expenses or any other payments whatsoever which the Prospective Participant may suffer or incur either directly or indirectly in connection with or arising out of:
9.3.1. any delays, losses, misunderstandings, duplications, disclosures or other unintended results arising from electronic and human errors and risks associated with the use of electronic or other modern means of communication, on the understanding that both Parties shall endeavour to ensure the security and confidentiality of such communications;
9.3.2. any such act or omission done or omitted thereby directly or indirectly upon instruction, advice or recommendation whether oral or written and howsoever received from the Prospective Participant or from any agent, employee of, adviser to or representative of the Prospective Participant provided always that the covenant for indemnity herein shall not extend to any act or omission in bad faith or gross negligence;
9.3.3. generally, any act or omission whatsoever done or omitted thereby as an officer/employee of the Prospective Participant except to the extent of these resulting from bad faith or gross negligence.
9.4. In the event that an arbitrator, court or tribunal, notwithstanding the provisions herein, finds against the Company and/or its employees, officers and subcontractors and awards damages against them, their total liability in damages, and/or extent of indemnification as the case may be, shall be limited to the Subscription Amount, if any, paid in the last calendar year.
10. DISCLAIMER
10.1. The acquisition of the Tokens under these T&Cs, and the use of the Tokens are provided as outlined in the White Paper, the Website and the Documents. The Company makes no representations of any kind, express, implied, statutory or otherwise, regarding the acquisition of the Tokens under these T&Cs. The Company, its directors, officers, employees, agents, attorneys, representatives and associates do not accept any liability for any damage or loss, including loss of business, revenue, or profits, or loss of or damage to data, equipment or software resulting from any use of or inability to use the Tokens, as well as from the acquiring of Tokens, regardless of the basis, upon which the liability is claimed. Prospective Participants assume all risk of loss resulting from, concerning or associated with risks set forth in these T&Cs, which are being incorporated herewith.
11. PRIVACY POLICY
11.1. In line with its Privacy Policy, the Company values the Prospective Participant’s privacy by not requesting any information that is unnecessary for the holding and use of the Tokens. The Company may request information in order to abide with obligations under the applicable law. The Company is committed to preserve the privacy of the Prospective Participant and is compliant with the General Data Protection Regulation (EU) 2016/679.
11.2. The Company commits itself to do its utmost to ensure that, its directors, officers, secretaries, employees, agents, attorneys, representatives, affiliates and associates shall not disclose to any person, any non-public proprietary, documents or confidential information which may have been obtained as a result of the relationship between the Parties except to the extent necessary further to any law, regulations, rules or agreement.
11.3. Nevertheless, the Company shall be entitled, at any time, to request from the Prospective Participant information and/or documentation that the Company, in its sole discretion, deems fit and necessary in order to comply with any applicable law or regulation in connection with the holding and using of the Tokens. The Prospective Participant agrees to provide the Company with such information promptly upon request and it acknowledges that the Company may not provide any assistance and/or services to the Prospective Participant until it provides such requested information and the Company has determined that it is permissible under applicable law or regulation. The Company reserves the right to require more KYC documentation in order to be compliant with the AML Regulations and/or any other laws and regulations that may come in force in the future.
11.4. Furthermore, the duty of confidentiality does not extend to communications in furtherance of an illegal purpose nor to documents or facts showing the commission of a crime or fraud. Moreover, the Company, in accordance with Maltese law, is subject to the duty (without informing the Prospective Participant) to notify the competent authority in certain instances and the Prospective Participant acknowledges that the Company is not bound by confidentiality obligations when the disclosure is necessary in the Company’s opinion in order to protect its own interest.
11.5. The Prospective Participants further understands that pursuant to clause 6.1(i) of this Agreement, and any AML/CTF laws and rules that may bind the Custodian and its service providers, the Company is authorised to disclose KYC information and documentation on the Prospective Participant to the Custodian’s bank as may be requested from time to time.
12. RISK FACTORS
12.1. The acquisition of Tokens through the VFA Allocation Event carries with it substantial risks. The Prospective Participant should carefully weigh all the risks and possible costs, including the risks set out in the Whitepaper and the non-exhaustive list of risks described hereunder:
(a) The Company maintains sole discretion in the conduct of its business including as related to the VFA Allocation Event, maintenance and use of the Tokens;
(b) The Prospective Participant understands and accepts the inherent risks associated with the Tokens, including but not limited to, risks associated with: (i) decentralisation of the blockchain technology; (ii) money laundering; (iii) fraud; (iv) anonymity of transactions; (v) use of Tokens for illicit purposes; (vi) theft; (vii) loss of Wallet key.
(c) The Prospective Participant understands and accepts that the software and hardware, technology and technical theories associated with DLT and used by issuers of tokens is still in early development stages and still is unproven and might be unreliable and risky. There is no warranty that the technology will be uninterrupted or error-free and there is an inherent risk that the technology could contain weaknesses, vulnerabilities or bugs causing, inter alia, in rare instances, the complete loss of the Tokens and the Issuer’s entire Subscription Amount.
(d) The Prospective Participant understands and accepts that the distribution of Tokens by means of the VFA Allocation Event, may be abandoned for a number of reasons including but not limited to lack of interest from the industry and/or the public, lack of uptake by third parties, lack of funding and lack of commercial success. The Prospective Participant therefore understands that there is no assurance that, even if such project is partially or fully developed and launched, the Prospective Participant may receive any functionality through the Tokens it holds;
(e) The Prospective Participant understands and accepts that the underlying software application and software platform of the Token, the internet, the blockchain network, the Issuer itself and all other involved software, technology components concerned with the Token may be exposed to attacks by hackers or other individuals that could result in theft or loss of the Tokens and the Prospective Participant’s entire Subscription Amount;
(f) The Prospective Participant understands and accepts that public-based blockchain systems depend on independent validators, and therefore may be vulnerable to consensus attacks. Any successful attacks present a risk to such systems, expected proper execution and sequencing of Token-related transactions and expected proper execution and sequencing of software computations, including loss of the Prospective Participant’s entire Subscription Amount;
(g) The Prospective Participant understands and accepts the inherent risks outlined under Sections 38-43 of the VFA Act named ‘Regulatory and Investigatory powers’ whereby the Minister is given regulatory and investigatory powers including but not limited to the power to regulate the activities of issuers, regulate the promotion or sale by and on behalf of any issuer, the power to transpose and issue directives and regulations, the power to appoint inspectors, the power to protect public interest and consumers, the right of entry, and the power to impose administrative fines and penalties. The Prospective Participant understands and accepts that these risks can have severe adverse effects on the Issuer. The Prospective Participant understands and accepts that, subject to Section 10 of the VFA Act, it has no right to recourse as a result of any loss due to circumstances under these sections.
13. MISCELLANEOUS
13.1. Neither these T&Cs nor any rights or obligations hereunder may be assigned by the Prospective Participant in whole or in part, without the express prior written consent of the Company. The Company may transfer and assign its rights and obligations hereunder to any other natural or judicial person, to another affiliate, including any entity controlled, controlling or under common control with the Issuer, to a third party that acquires all or substantially all of the assets subject to these T&Cs or securities of the Company or any entity into which the Company shall merge or any affiliate thereof.
13.2. All notices and other communications required or permitted hereunder to be given to a Party to these T&Cs shall be made in writing and shall be sent by email or mailed by registered mail or else delivered by hand. Any notice sent in accordance with this section shall be effective: (i) if mailed, seven (7) days after mailing; (ii) if sent by hand, upon delivery; and (iii) if sent via email, on the first business day following such transmission.
-
AMENDMENTS
14.1. These T&Cs may be amended unilaterally by the Company at any time, provided that the Company shall immediately inform the Prospective Participant thereof. If the Prospective Participant does not agree with the amended provisions of these T&Cs, it shall have the right to redeem the Tokens and terminate the relationship with the Company within 30 days.
14.2. No waiver of any Party’s default or breach of its representations, warranties, covenants, duties, agreements or obligations or an amendment to any clause or provision of these T&Cs, will be effective unless done in writing and signed by the Parties. Any waiver will be limited to default or breach described therein and no waiver will be or be deemed a waiver of any other, similar, prior, continuing or subsequent default or breach.
-
VALIDITY
15.1. The illegality, invalidity or unenforceability of any provisions of these T&Cs decided by the law of one jurisdiction does not affect the legality, validity or enforceability of these T&Cs under the law of another jurisdiction nor the legality, validity or enforceability of another provision of these T&Cs.
-
GOVERNING LAW AND DISPUTE RESOLUTION
16.1. Any claim or dispute arising out of these T&Cs or connected thereto shall be governed by and construed in accordance with the Laws of Malta.
16.2. Any dispute, controversy or claim arising out of or relating to or concerning these T&Cs, or breach, or invalidity thereof, shall be settled by arbitration in accordance with the provisions of the Malta Arbitration Act, Chapter 387 of the laws of Malta (‘Arbitration Act’) and shall be regulated by the arbitration rules, in force from time to time, and promulgated under the authority of the Arbitration Act. The Prospective Participant waives any right it may have to object to any action being brought in an inappropriate forum, or to claim that the forum does not have jurisdiction.