Modex: Terms and Condtions
MODEX (Gibraltar) LIMITED (the “Company”, “We”, “we”, “WE”, “Us”, “us”, “US”, “Our”, “our” or “OUR”).
TERMS OF PARTICIPATION IN THE MODEX TOKEN SALE
Last Updated: 4th September 2018
These terms and conditions (the “Terms”) relating to the sale and purchase of MODEX Tokens (as defined below) to be issued by the Company during the Token Generation Event (as defined below) apply to each Purchaser (also referred to in the Terms as “YOU”, “You”, “you”, “Your”, “your” or “YOUR”). You agree to be bound by these Terms.
PLEASE READ THESE TERMS CAREFULLY AND NOTE THAT THE SECTION ON ‘DISPUTE RESOLUTION. ARBITRATION CONTAINS A BINDING ARBITRATION CLAUSE WHICH AFFECTS YOUR LEGAL RIGHTS. IF YOU DO NOT AGREE TO THESE TERMS OF SALE, DO NOT PARTICIPATE IN THE COMPANY’S TOKEN SALE.
If you have any questions regarding these Terms, please contact us at [email protected].
You and the Company hereby agree as follows:
- I agree that save as the context requires and save as otherwise defined in (i) these Terms; and (ii) the Legal Considerations, Risks and Disclaimer Document (as defined below); capitalised words used in these Terms shall have the meanings respectively attributed to them in this clause 1 and the rules of interpretation set out in this clause 1 shall apply in these Terms:
- (i) “Affiliate” means with respect to a body corporate: (a) each of its parent undertakings; (b) any subsidiary undertaking of such body corporate or of any of its parent undertakings; and (c) any founder, initial member or initial shareholder of such body corporate or its parent undertakings. The terms “parent undertaking” and “subsidiary undertaking” shall have the meanings given in section 276 of the Companies Act 2014 of Gibraltar;
- (ii) “Claim” shall include any claim (whether present, future, actual or contingent and of whatsoever nature and howsoever arising, and arising out of or in connection with any act, matter, cause or thing (including claims for or relating to any payment or repayment of monies, indemnity, security or provisions of goods or services)), action, proceeding, demand or judgement of whatsoever nature or howsoever arising;
- (iii) “Committed Amount of Tokens” shall mean the number of MODEX Tokens purchased by a Private-Sale Purchaser under a Private Token Purchase Commitment Form;
- (iv) “Completion Condition” shall mean the occurrence of any of the following events:
- the publication on the Website by the Company acting in its sole discretion at any time prior to the commencement of the Public Token Sale of a statement to the effect that the Company shall no longer offer any MODEX Tokens for sale; or
- the publication on the Website by the Company acting in its sole discretion at any time after the commencement of the Public Token Sale but prior to the Hard Cap being reached of a statement to the effect that the Company shall no longer offer any MODEX Tokens for sale; or
- the publication on the Website by the Company of a statement to the effect that the Hard Cap has been reached and that Company shall no longer offer any MODEX Tokens for sale;
- (v) “Consideration” shall mean the amount paid by a Private-Sale Purchaser under a Private Token Purchase Commitment Form for the Committed Amount of Tokens;
- (vi) “Financial Instruments” shall include the meaning ascribed to it in the Financial Services (Markets in Financial Instruments) Act of Gibraltar or any other relevant legislation in Gibraltar (and “financial instrument” shall be construed accordingly); and the terms “financial instrument” and “financial instruments” shall have the broadest possible interpretation as these terms might be interpreted under the laws of other jurisdictions which are analogous or similar to the laws which regulate “Financial Instruments” or otherwise;
- (vii) “Hard Cap” shall be met when the amount of 10.577.066 USD has been raised by the Company from Private-Sale Purchasers and/or from a Public Token Sale;
- (viii) “Legal Considerations, Risks and Disclaimer Document” shall mean the document entitled “Legal Considerations, Risks and Disclaimer” and which shall be made available by the Company on the Website;
- (ix) “Losses” shall include any and all liabilities, costs, expenses, damages, fines, impositions or losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of earnings, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses and any associated value added tax) of whatsoever nature and/or judgement sums (including interest thereon);
- (x) “MODEX Tokens” shall mean the tokens to be issued by the Company during the Token Generation Event.
- (xi) “Private-Sale Purchaser” shall mean an individual or entity that purchased MODEX Tokens under a Private Token Purchase Commitment Form;
- (xii) “Private Sale” shall mean the period commencing on the Private-Sale Period Commencement Date and ending on the Public Token Sale Commencement Date;
- (xiii) “Private-Sale Period Commencement Date” shall mean the date on which the Company first enters into a Private Token Purchase Commitment Form;
- (xiv) “Private Token Purchase Commitment Form” shall mean an agreement entered into by Private-Sale Purchasers to purchase MODEX Tokens during the Private Sale;
- (xv) “Public Token Sale Commencement Date” shall mean 15th September 2018 or such other date as the Company shall announce on its Website that the Public Token Sale shall commence;
- (xvi) “Public Token Sale” shall mean the agreement for the sale and purchase of MODEX Tokens between the Company and members of the general public, subject to these Terms;
- (xvii) “Purchased Tokens” shall mean the Committed Amount of Tokens and/or any MODEX Tokens purchased during the Public Token Sale;
- (xiii) “Registration Process” shall mean the process whereby the Company and/or its Affiliates request Know-Your-Client, Anti-Money Laundering and Countering the Financing of Terrorism information and verification as well as such other due diligence information and supporting documentation as may be requested by the Company from time to time in its absolute discretion to a standard which is satisfactory to the Company (and/or its duly appointed agents, representatives or nominees).
- (xix) “Sale Period” shall mean the period commencing on the Private-Sale Period Commencement Date and ending on the occurrence of a Completion Condition;
- (xx) “Securities” shall include the meanings ascribed to in the Financial Services (Markets in Financial Instruments) Act of Gibraltar (as awarded from time to time); in the Financial Services (Investment and Fiduciary Services) Act of Gibraltar; the Prospectuses Act of Gibraltar or any other relevant legislation in Gibraltar (and “security” shall be construed accordingly); and the terms “security” and “securities” shall have the broadest possible interpretation as these terms might be interpreted under the laws of other jurisdictions which are analogous or similar to the laws which regulate “Securities” or otherwise;
- (xxi) “Token Generation Event” shall mean the issuance and delivery of MODEX Tokens by the Company;
- (xxii) “Website” shall mean the Company’s website accessible at https://www.modex.tech/ on which the White Paper, these Terms and other details and information relating to the offer of MODEX Tokens for sale shall be made available by the Company;
- (xxiii) “Whitepaper” shall mean the whitepaper issued by the Company and available for review on the Website and which may change from time to time;
Intended Purpose and Use of MODEX Tokens
- The intended purpose of the MODEX Tokens is to facilitate the provision and receipt of services (collectively, the “Services”) which Services are more particularly set out in Exhibit A. The Services will be provided through an online software platform (the “Platform”) that is currently under development by the Company or an Affiliate thereof. More specifically, MODEX Tokens are intended to facilitate the provision of the Services from the Company or an Affiliate thereof, to the users of the Platform and will constitute proof of prepayment for the Services. The Platform is intended to include tools designated for managing and interacting with crypto-currency assets, social network tools which may allow users to share their knowledge and expertise, a market place enabling third party developers to offer their own tools to other users, and various other tools described more fully in Exhibit A.
- The purchase ownership, receipt, transmission or possession of MODEX Tokens carries no rights, express or implied, other than the right to use MODEX Tokens as a means to enable usage of and interaction within the Platform. The Terms shall not and cannot be considered as an invitation to enter into an investment. The Terms do not constitute or relate in any way, nor should they be considered, as an offering of securities in any jurisdiction. The Terms do not include or contain any information or indication that might be considered as a recommendation or that might be used to base any investment decision. MODEX Tokens are utility tokens and are not intended to be used as an investment. Further, you must note that MODEX Tokens do not represent or confer any ownership right or stake, share, equity or security or equivalent rights, or any right to receive future revenue shares or intellectual property rights in the Company or any Affiliate thereof. Acquiring MODEX Tokens shall not grant any right or influence over the Company’s (or any Affiliate thereof) organisation and governance to you, other than rights relating to the potential future provision and receipt of Services, subject to the limitations and conditions contained in these Terms and the Terms and Policies (as defined below). We do not operate or maintain the Platform and as such, we have no responsibility or liability for the Platform or any ability to control third parties’ use of the Platform. The MODEX Tokens are not intended to be a representation of money (including electronic money), security, commodity, bond, debt instrument or any other kind of financial instrument or investment. Protections offered by the applicable law in relation to the purchase and sale of the aforementioned financial instruments and/or investments do not apply to the purchase and sale of MODEX Tokens and neither these Terms nor the MODEX Whitepaper constitute a prospectus or offering document, and are not an offer to sell, nor the solicitation of an offer to buy any investment or financial instrument in any jurisdiction. MODEX Tokens should not be acquired in any case or circumstance for speculative or investment purposes with the expectation of making a profit on immediate resale, future resale or otherwise.
- The Company, or an Affiliate thereof, will use reasonable endeavours to launch its operations and develop the Platform. Any person agreeing, covenanting or undertaking to acquire MODEX Tokens acknowledges and understands that neither the Company nor any Affiliate thereof provides any guarantee that it will establish an operative Platform or provide the Services and therefore it cannot guarantee that the MODEX Tokens can be used to purchase or access goods or Services on the Platform. You acknowledge and understand therefore that neither the Company nor any Affiliate thereof assumes any liability or responsibility whatsoever or howsoever arising for any loss or damage that would result from or relate to the incapacity or inability to use MODEX Tokens in whole or in part of for their intended function.
- MODEX Tokens do not constitute the provision of any goods and/or services (including the Services) as at the date of these Terms.
Scope of Terms
- Unless otherwise stated herein, these Terms (which for the avoidance of doubt include the Exhibits hereto) only govern your purchase of MODEX Tokens from us during the Sale Period.
- Any potential future use of MODEX Tokens in connection with the provision or receipt of Services will be governed primarily by other applicable terms and policies (collectively, the “Service Terms and Policies”). The Service Terms and Policies will be made available on our website prior to the launch of the Modex token sale. We may revise and/or update the Service Terms and Policies from time to time at our sole and absolute discretion. In the event of any conflict between these Terms and the Service Terms and Policies, the Service Terms and Policies shall prevail.
Cancellation; Refusal of Purchase Requests
- Your legally binding agreement to purchase MODEX Tokens from us during the Sale Period is final, and there are no refunds or cancellations except as may be required by applicable law or regulation. We reserve the right to refuse or cancel MODEX Token purchase requests at any time in our sole and absolute discretion. In such an event the consideration paid by you shall be rejected or refunded.
- At any time prior to satisfaction of the Completion Condition, the Company may either temporarily suspend or permanently abort the token sale. During any period of suspension or in the event that the token sale is suspended or aborted, MODEX Tokens will not be available for purchase and any funds or form of cryptocurrency sent by you to the Company for the purposes of acquiring MODEX Tokens shall be returned to you in due course by the Company. The Company may use all or part of your consideration for the MODEX Tokens prior to the suspension or permanent termination of the sale of MODEX Tokens and therefore either none or only a portion of your Consideration may be returned to you.
Title and Risk
- No title (legal or beneficial) or any ownership or other rights title and/or interests of any nature whatsoever or howsoever arising (including those capable of being imposed by way of implied, resulting, constructive or other trust) relating to any MODEX Tokens shall be transferred to or conferred on you until the moment that the Purchased Tokens are recorded as credited in your cryptocurrency wallet (the “Transfer Event”). Risk to the Purchased Tokens shall pass to you on the Transfer Event. The Purchased Tokens shall only belong to you following the Transfer Event.
MODEX Token Sale Procedures and Specifications
- Important information about the procedures and material specifications of our MODEX Token sale is provided in Exhibit B, including, but not limited to, details regarding the timing and pricing of the MODEX Token sale, the amount of MODEX Tokens we will sell, and our anticipated use of the MODEX Token sale proceeds. By agreeing to purchase MODEX Tokens, you acknowledge and accept that you have read, understood and have no objection to these procedures and material specifications.
Acknowledgment and Assumption of Risks
- You acknowledge and agree that there are risks associated with purchasing MODEX Tokens, holding MODEX Tokens, selling MODEX Tokens and using MODEX Tokens for providing or receiving Services. You should carefully consider the risks and uncertainties disclosed and explained in Exhibit C before deciding to purchase MODEX tokens. The occurrence of any of these risks could result in you losing all or part of your consideration. If you have any questions regarding these risks, please contact us at [email protected]. BY PURCHASING MODEX TOKENS, YOU EXPRESSLY ACKNOWLEDGE, ACCEPT AND ASSUME THESE RISKS.
- You are responsible for implementing all reasonable and appropriate measures for securing the wallet, vault or other storage mechanism you use to receive and hold MODEX Tokens that you purchase from us, including any requisite private key(s), backup passphrases and/or other credentials necessary to access such storage mechanism(s). If your private key(s), backup passphrases and/or other access credentials are lost, you may lose access to your MODEX Tokens. Neither the Company nor its Affiliates shall be responsible for any security measures relating to your receipt, possession, storage, transfer or potential future use of MODEX Tokens and neither is the Company nor its Affiliates under any obligation to recover any lost or stolen MODEX Tokens and the Company and its Affiliates hereby exclude (to the fullest extent permitted under applicable law) any and all liability for any security breaches or other acts or omissions which result in your loss of (including your loss of access to) MODEX Tokens.
- Completion of the Registration Process to the entire satisfaction of the Company (and/or to the satisfaction of its duly appointed agents, representatives or nominees) shall be a condition precedent to your purchase of MODEX Tokens. The Company and/or its Affiliates may determine, in their sole and absolute discretion, that they need to undertake due diligence on certain prospective purchasers of MODEX Tokens. As part of the Registration Process the Company and/or its Affiliates may request that you send us certain information about you. You agree to provide the Company and/or its Affiliates with such information promptly upon request, and you acknowledge and accept that we may refuse to sell MODEX Tokens to you until you provide such requested information in a form that is satisfactory to the Company and/or its Affiliates. You acknowledge, confirm and agree that you shall not remit all or any part of the consideration to the Company (or to its duly appointed agents, representatives or nominees) until such time as we (or its duly appointed agents, representatives or nominees) shall have confirmed to you in writing that the Registration Process has been completed to our entire satisfaction.
- The purchase price that you pay for MODEX Tokens is exclusive of all applicable taxes. You are solely responsible for determining what, if any, taxes apply to your purchase of MODEX Tokens, including, but not limited to: sales, use, value added, and any other taxes that may be applicable. It is also your sole responsibility to withhold, collect, report, pay, settle and/or remit the correct taxes to the appropriate tax authorities in such jurisdiction where you may be liable to pay tax. We are not responsible for withholding, collecting, reporting, paying, settling and/or remitting any sales, use, value added, or any other tax arising from your purchase of MODEX Tokens.
Representations and Warranties
- By purchasing MODEX Tokens, you hereby represent and warrant and unconditionally irrevocably covenant and undertake (as applicable) to the Company and its Affiliates that:
- (i) You have taken independent legal advice prior to accepting these Terms;
- (ii) You have reviewed the entirety of the Whitepaper, the Legal Considerations, Risks and Disclaimer Document and the Website;
- (iii) You have read and understood the entirety of the Whitepaper, the Legal Considerations, Risks and Disclaimer Document and the Website;
- (iv) You have read and understood these Terms (including all Exhibits);
- (v) 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/distributed ledger technology and blockchain/distributed ledger technology based software systems to understand these Terms and to appreciate the risks and implications of purchasing the MODEX Tokens;
- (vi) You have obtained sufficient information about the Company, the Company’s officers and agents and representatives and its Affiliates and about the MODEX Tokens to make an informed decision to purchase the MODEX Tokens;
- (vii) You understand that the MODEX Tokens confer only the potential future right to receive Services and confer no other rights of any form with respect to the Platform, the Company, or any Affiliate thereof including, but not limited to, any voting, distribution, redemption, liquidation, proprietary (including all forms of intellectual property), or other financial or legal rights;
- (viii) You are purchasing MODEX Tokens to potentially receive Services on the Platform at a future point in time. You are not purchasing MODEX Tokens for any other uses or purposes, including, but not limited to, any investment, speculative or other financial purposes;
- (ix) Your purchase of MODEX Tokens complies with applicable law and regulation in your jurisdiction or in any jurisdiction the laws of which you may be subject to;
- (x) You live in a jurisdiction that allows the Company (without the requirement to register itself or any document with any authority or supervisory body or person) to sell the MODEX Tokens and does not prohibit you from participating through a token sale without requiring any local authorisation;
- (xi) Your purchase of MODEX Tokens shall be made in full compliance with any applicable tax obligations to which you may be subject in any relevant jurisdiction;
- (xii) If you are purchasing MODEX Tokens on behalf of any entity or person, you are authorized to accept these Terms and enter into a binding agreement with us on such entity or person’s behalf (references to “YOU”, “You”, “you”, “Your” or “your” in these Terms refer to the entity or person on whose behalf you are authorised to purchase the MODEX Tokens);
- (xiii) You are not a resident or domiciliary of the United States of America, Israel, China or any jurisdiction which prohibits token sales and/or any participation therein (a “Restricted Jurisdiction”) or purchasing MODEX Tokens from a location in a Restricted Jurisdiction, nor are you an entity (including but not limited to any corporation or partnership) incorporated, established or registered in or under the laws of a Restricted Jurisdiction, nor are you purchasing MODEX Tokens on behalf of any such person or entity;
- (xiv) You are not: (i) a citizen or resident of a geographic area in which access to or use of the MODEX Tokens and/or Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (iii) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List.
- (xv) You acknowledge and accept that the Company and/or its Affiliates may refuse to issue MODEX Tokens to you if you are a citizen, resident or domiciliary referred to in (xiii) or (xiv) above;
- (xvi) You agree that if your country of residence or other circumstances change such that the above representations, warranties, covenants and/or undertakings are no longer accurate, that you will immediately cease using the MODEX Tokens and/or the Services.
- (xvii) If you are registering to use the MODEX Tokens or the Services on behalf of a legal entity, you further represent and warrant that (i) such legal entity is duly organized and validly existing under the applicable laws of the jurisdiction of its organization, and (ii) you are duly authorized by such legal entity to act on its behalf;
- (xviii) If you are an individual, you are at least 18 years of age and have sufficient legal capacity to accept these Terms and enter into a binding agreement with us;
- (xix) The acceptance by you of these Terms and the entry into a binding agreement with us will not result in any violation of, be in conflict with, or constitute a material default under: (i) any provision of your constitutional or organizational documents (if applicable); (ii) any provision of any judgment, decree or order to which you are a party, by which you are bound or to which any of your material assets are subject; and/or (iii) any material agreement, obligation, duty or commitment to which you are a party or by which you are bound;
- (xx) The cryptocurrency or fiat assets you use to purchase MODEX Tokens are not derived from or related to any unlawful activities, including but not limited to money laundering or terrorist financing, and you will not use the MODEX Tokens to finance, engage in, or otherwise support any unlawful activities including but not limited to money laundering or terrorist financing;
- (xxi) Any MODEX Tokens you acquire will be acquired in your name, and any cryptocurrency assets you use will come from a digital wallet not located in a country or territory that has been designated as a “non-cooperative country or territory” by the Financial Action Task Force or any similar legislation; and
- (xxii) You are not the subject of any sanctions administered or enforced by any country, government or international authority nor are you resident or established (in the case of a corporate entity) in a country or territory that is the subject of a country-wide or territory wide sanction imposed by any country or government or international authority.
Waiver, Release and Indemnity
- You hereby irrevocably and unconditionally waive, release and discharge the Company and its past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, Affiliates, agents, representatives, joint ventures, predecessors, successors and assigns (the “Company Parties”) from all and any Claims which you have or may at any time have against any of the Company Parties.
- To the fullest extent permitted by applicable law, you also release the Company and the Company Parties from all and any responsibility, Losses, Claims, 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 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 your favour at the time of agreeing to this release.
- To the fullest extent permitted by applicable law, you will fully and effectively indemnify, defend and hold harmless the Company and the Company Parties from and against any and all Claims and Losses that arise from or relate to: (i) your understanding and interpretation of and/or reliance on the Whitepaper, all information contained on or accessible via the Website and/or these Terms; (ii) your purchase, possession, transmission and/or use of MODEX Tokens; (iii) your responsibilities or obligations under these Terms; (iv) your violation of these Terms; or (v) your violation of any rights of any other person or entity; (vi) any failure or inability of the Company to develop or deliver or deploy the Platform; (vii) your use or inability to use at any time the MODEX Tokens or the Platform; (viii) any security risk or security breach or security threat or security attack or any theft or loss of data including but not limited to hacker attacks, losses of password, losses of private keys, or anything similar; (ix) any mistakes or errors in code, text, or images involved in the Token Generation Event or in any of the Available Information; (x) any information contained in or omitted from the Whitepaper, all information contained on or accessible via the Website and/or these Terms; (xi) the volatility in pricing of MODEX Tokens in any countries and/or on any exchange or market (regulated, unregulated, primary, secondary or otherwise); (xii) your failure to properly secure any private key to a wallet containing MODEX Tokens; and (xiii) any taxes for which you are liable.
- The Company reserves the right to exercise sole control over the defence, at your expense, of any Claim subject to aforesaid indemnity by you (the “Indemnity”). The Indemnity is in addition to, and not in lieu of, any other indemnities set forth in the Whitepaper, all information contained on or accessible via the Website and/or these Terms.
- You agree and acknowledge that the Company is not liable for any direct, indirect, special, incidental, consequential or other losses of any kind in tort contract or otherwise (including but not limited to loss of revenue income or profits or loss of use or data or loss of reputation or loss of any economic or other opportunity of whatsoever nature or howsoever arising) arising out of or in connection with any acceptance of or reliance on the Whitepaper, all information contained on or accessible via the Website and/or these Terms or any part thereof by you.
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO THE EXTENT THAT THIS DISCLAIMER APPLIES TO YOU AND EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED IN WRITING BY US: (A) THE MODEX TOKENS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER, AND WE EXPRESSLY DISCLAIM ALL IMPLIED REPRESENTATIONS AND/OR WARRANTIES AS TO THE MODEX 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 MODEX TOKENS ARE RELIABLE, CURRENT OR ERROR-FREE, MEET YOUR REQUIREMENTS, OR THAT DEFECTS IN THE MODEX TOKENS WILL BE CORRECTED; AND (C) WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE MODEX TOKENS OR THE DELIVERY MECHANISM FOR MODEX TOKENS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- The Company does not make or purport to make, and hereby disclaims, any representation warranty undertaking or covenant in any form whatsoever to you and to any entity or person.
- 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 above may not apply to you.
- Neither the Whitepaper, nor any of information contained on or accessible via the Website nor these Terms constitute a prospectus or offering document, and are not an offer to sell, nor the solicitation of an offer to buy any investment or financial instrument in any jurisdiction. MODEX Tokens should not be acquired for speculative or investment purposes with the expectation of making a profit on immediate or future re-sale.
- No regulatory authority has examined or approved of any of the information set out in these Terms and/or the Whitepaper. No such action has been or will be taken under the laws, regulatory requirements or rules of any jurisdiction. The publication, distribution or dissemination of these Terms and/or the Whitepaper does not imply that applicable laws, regulatory requirements or rules have been complied with.
Limitation of Liability
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) UNDER NO CIRCUMSTANCES WILL THE COMPANY OR ANY OF THE COMPANY PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY LOSS 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 PURCHASE, SALE OR USE OF THE MODEX TOKENS OR OTHERWISE RELATED TO THESE TERMS, REGARDLESS OF THE CAUSE OR FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE BASIS (EVEN IF THE COMPANY OR ANY OF THE COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES AND REGARDLESS OF WHETHER SUCH LOSSES WERE FORESEEABLE); AND (II) UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COMPANY AND THE COMPANY PARTIES (JOINTLY), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR OTHER LEGAL OR EQUITABLE BASIS, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF OR INABILITY TO USE THE MODEX TOKENS, EXCEED THE AMOUNT YOU PAY TO US FOR THE ACQUISITION OF MODEX TOKENS. THE LIMITATIONS SET FORTH HEREIN WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL, WILLFUL OR RECKLESS MISCONDUCT OF COMPANY.
- Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations above may not apply to you.
Dispute Resolution and Arbitration
- PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT CONTAINS CERTAIN PROVISIONS, SUCH AS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH AFFECT YOUR LEGAL RIGHTS. THIS SECTION REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either you or the Company seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and the Company (i) save as expressly provided herein, waive your respective rights to have any and all Disputes arising from or related to these Terms resolved in a court, and (ii) waive your respective rights to a jury trial. Instead, you and the Company will arbitrate Disputes through binding arbitration provided in these Terms.
No Class Arbitrations, Class Actions or Representative Actions
- 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.
- The enforceability of this section (Dispute Resolution. Arbitration) will be both substantively and procedurally governed by and construed and enforced in accordance with the 2012 (as revised in 2017) International Chamber of Commerce Rules of Arbitration, to the maximum extent permitted by applicable law.
Notice; Informal Dispute Resolution
- Each of the Purchaser or the Company will notify the other in writing of any Dispute within thirty (30) days of the date it arises, so that respective party can attempt in good faith to resolve the Dispute informally. Notice to the Company shall be sent by e-mail to the Company at [email protected]. Notice to the Purchaser shall be either posted on the Website or, if available, will be sent by email to any email address you provided in connection with your purchase of MODEX Tokens or use of the Platform or Services. Your notice must include (i) your name, postal address, email address and telephone number, (ii) a description in reasonable detail of the nature or basis of the Dispute, and (iii) the specific relief that you are seeking. If you and the Company cannot agree how to resolve the Dispute within thirty (30) days after the date the notice is received by the applicable party, then either you or the Company may, as appropriate and in accordance with this section (Dispute Resolution. Arbitration), commence an arbitration proceeding or, to the extent specifically provided for in this section (Dispute Resolution. Arbitration), file a claim in court.
- Any arbitration will occur in Gibraltar. The arbitration will be conducted confidentially by a single arbitrator appointed by the Gibraltar Chamber of Commerce in accordance with the rules of the International Chamber of Commerce Rules of Arbitration, which are hereby incorporated by reference. The courts located in Gibraltar will have exclusive jurisdiction over any appeals and the enforcement of an arbitration decision.
Authority of Arbitrator
- These Terms, the applicable International Chamber of Commerce Rules of Arbitration and the arbitrator will have (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (ii) the authority to grant any remedy that would otherwise be available in court, provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative or class action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
- The International Chamber of Commerce Rules of Arbitration and additional information about International Chamber of Commerce are available at https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/. By agreeing to be bound by these Terms, you either (i) acknowledge and agree that you have read and understand the International Chamber of Commerce Rules of Arbitration, or (ii) waive your opportunity to read the International Chamber of Commerce Rules of Arbitration and any claim that the International Chamber of Commerce Rules of Arbitration are unfair or should not apply for any reason.
Severability of Dispute Resolution and Arbitration Provisions
- If any term, clause or provision of this section (Dispute Resolution. Arbitration) is held invalid or unenforceable, it will be so held to the minimum extent applicable and required by law, and all other terms, clauses and provisions of this section (Dispute Resolution. Arbitration) will remain valid and enforceable. Further, the waivers set forth in this section (Dispute Resolution. Arbitration) are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
Governing Law and Jurisdiction
- These Terms will be governed by and construed and enforced in accordance with the laws of Gibraltar, without regard to conflict of law rules that would cause the application of the laws of any other jurisdiction. Any Dispute between the Company and/or its Affiliates and the Purchaser arising out of or relating to these Terms or its subject matter or formation (including non-contractual Disputes or claims) that is not subject to arbitration will be resolved exclusively in the courts of Gibraltar.
- If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification or delete of a provision or part-provision under this clause shall not affect the validity and enforceability of any remaining part of that provision, or any other provision of these Terms.
- As part of the Registration Process, the Company may request certain information from you. This may require the Company to request documents to include, but not be limited to, certified copies of documents verifying: (i) your identity; (ii) your address; (iii) the source of your wealth; (iv) the source of funds used for the purposes of acquiring MODEX Tokens; and (v) any other documents or data from which you can be identified. Your information as well as the items referred to in sub-paragraphs 41(i) to 41(v) above shall hereinafter be referred to as your “Personal Data”.
- The Company will not disclose your Personal Data except as expressly permitted under these Terms and otherwise only with you prior consent. However, the Company may be required to disclose your Personal Data and/or certain other information about you to relevant competent authorities to the extent required by law or by an order of a court or competent authority. By accepting these Terms, you expressly agree and consent to your Personal Data being disclosed to such third parties to any extent required for the purposes of compliance with applicable law.
- The Company will process your Personal Data in accordance with the Data Protection Act 2004, as may be amended (the “Data Protection Act”), and you agree that the Company, as the data controller, may directly or through the Company’s service providers or agents process your Personal Data for any one or more of the following purposes:
- (i) the purchase the MODEX Tokens pursuant to these Terms;
- (ii) providing you with information about the Company and its products and range of services;
- (iii) compliance with relevant ‘Know Your Client’ and Anti-Money Laundering requirements under applicable law;
- (iv) management of enquiries and complaints;
- (v) processing of transactions related to the Modex Token sale;
- (vi) opening, maintaining or operating a bank account in the Company’s name;
- (vii) subject to clauses 40 to 45 (inclusive) (Data Protection), resolving any disputes with you;
- (viii) producing summary information for statistical, regulatory and audit purposes; or
- (ix) any other reasonable purposes in accordance with applicable law.
- Under the Data Protection Act you have a right to access your Personal Data held by the Company, and it is your responsibility to inform the Company of any changes to your Personal Data to ensure such data remains accurate. You also have a right to object to your Personal Data being processed for the purposes of direct marketing. You agree to provide a written request to the Company should you wish to enforce these rights.
- You agree that the Company may, for the purposes set out above, permit the transfer of your Personal Data to any jurisdiction, whether or not inside the European Economic Area, and that by accepting these Terms you are authorizing and expressly consent to the processing of your Personal Data by the Company, its agents and/or its service providers, provided that where your Personal Data is processes by entities other than the Company, its agents or its service providers, the Company shall seek your prior written consent in respect of such processing.
- You acknowledge, accept and understand that these Terms, insofar as they relate to the controlling and processing of your Personal Data by the Company and/or its agents or service providers are only relevant to the processing of your Personal Data for the purposes set out above, and that you may be requested to sign and/or agree to a separate and additional agreement and/or additional terms and conditions (any of these a “Supplementary Agreement” and together “Supplementary Agreement(s)”) in order to access any future Platform or service or application and/or use the MODEX Tokens and/or otherwise use and interact with the Platform. Such Supplementary Agreement(s) will govern the terms under which your Personal Data is collected, stored and processed (as well as your individual rights under applicable data protection laws) in connection with your use of the Platform and/or the MODEX Tokens.
- These Terms constitute the entire agreement between you and the Company relating to your purchase of MODEX Tokens from the Company. We may make changes to these Terms from time to time as reasonably required to comply with applicable law or regulation. If we make changes, we will post the amended Terms at https://www.modex.tech/ and update the “Last Updated” date above. The amended Terms will be effective immediately.
- We may assign our rights and obligations under these Terms without your prior consent.
- 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.
- Purchasing MODEX Tokens from us does not create any form of partnership, joint venture or any other similar relationship between you and the Company or its Affiliates.
- Except as otherwise provided 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, will be provided in electronic form.
- You and the Company acknowledge that, in accepting and agreeing to these Terms, neither you nor the Company do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided therein, and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
* * * * *
Exhibit A - Description of Network and Tokens
- Overview of Network and Services
The Modex network (the “Network”) is comprised of a front facing user interface application (web, mobile), a backend server that manages all the social trading logic, a backend server managing all user accounts (if user decides to use them) and a dedicated backend server for the various integrated blockchains running their dedicated nodes.
The front facing UI application is responsible for the interaction of the user with the Platform, gathering of the necessary information about the user’s different accounts and presenting the user with the different features and their functionalities. The application promotes high levels of security and privacy and gives control to the user to opt-in/out of different services depending on his or hers preferences.
The social trading backend is responsible for making the connection between users and facilitating the social trading functionality, mostly concentrating on the ability to follow and to be followed. These interactions may or may not result in actual trading, depending on the user’s settings.
The backend server managing all the account information is a database responsible for syncing the user’s data in order to make it accessible on a variety of devices. This service may be opted-out of, if the user so chooses to.
The backend servers dedicated for the various blockchain integrations are running highly customized nodes of those blockchains and act as a customized and indexed database for the front end application to use and query from. This is done to make the system more efficient and faster.
- Overview of MODEX Tokens; Use of MODEX Tokens to Obtain Services
The MODEX Tokens are based on the Ethereum protocol and conform to the widely-used ERC20 standard. The Company will not support or otherwise facilitate any secondary trading or external valuation of MODEX Tokens.
MODEX Tokens are a form of access token in the sense that they will be an essential utility for users of the Network. Users will be required to pay fees in MODEX Tokens in order to access certain tools, services and features on the Platform. Similarly, users (e.g. expert investors) who facilitate other users to make trades, based on information they make available on the Platform, will be entitled to receive a payment in MODEX Tokens (e.g. an expert investor who publishes his trading activity and whose trades are copied by a platform user).
Similarly, users wishing to use the copy trading functionality of the platform will be required to pay a fee in MODEX Tokens in order for the copy trade to execute. The Company retains the right to distribute additional MODEX Tokens to investors whose initial trade led to signal trade or copy trade being executed, thereby offering such investors the opportunity to receive additional Services from the Company in consideration of sharing their investment activity with other users.
MODEX Tokens are the only mechanism by which a user may obtain access to certain tools, services and features on the Platform. Additionally, MODEX Tokens do not have any functionality or utility outside the Platform. The Platform will therefore be structured as a “closed system” insofar as the use of MODEX Tokens is concerned. Whilst it is possible that a secondary market could develop for trading MODEX Tokens, the Company will not create such secondary markets nor will it act as an exchange for MODEX Tokens. To the extent a secondary market or exchange for trading MODEX Tokens does develop, it would be run and operated wholly independently of the Company, the Token Generation Event and the Platform.
Exhibit B - Token Generation Event Procedures and Specifications
Refer to the official Whitepaper which is available at https://www.modex.tech/documentation/whitepaper.pdf. We will issue up to 266,399,993 MODEX Tokens during the Token Generation Event. 12% of the total tokens will be allotted to our team and advisors to align our interests with those of the community and 46% shall be held by the Company as a token reserve.
Exhibit C - Certain Risks Relating to Purchase, Sale and Use of MODEX Tokens
Important Note: As set out in these Terms, the MODEX Tokens are not being structured or sold as securities or any other form of investment product. Accordingly, none of the information presented in this Exhibit C is intended to form the basis for any investment decision, and no specific recommendations are made or intended. The Company expressly disclaims any and all responsibility for any direct or consequential loss or damage of any kind whatsoever arising directly or indirectly from: (i) reliance on any information contained in this Exhibit C, (ii) any error, omission or inaccuracy in any such information or (iii) any action resulting from such information.
By purchasing, holding and using MODEX Tokens, you expressly acknowledge and assume the following risks:
- Risk of Losing Access to MODEX Tokens Due to Loss of Private Key(s)
A private key, or a combination of private keys, is necessary to control and dispose of MODEX Tokens stored in your digital wallet or vault. Accordingly, loss of requisite private key(s) associated with your digital wallet or vault storing MODEX Tokens may result in loss of such MODEX Tokens. Moreover, any third party that gains access to such private key(s), including by gaining access to login credentials of a hosted wallet service you use, may be able to misappropriate your MODEX Tokens.
- Risks Associated with the Ethereum Protocol
Because MODEX Tokens and the Platform are based on the Ethereum protocol, any malfunction, breakdown or abandonment of the Ethereum protocol may have a material adverse effect on the Platform or MODEX Tokens. Moreover, advances in cryptography, or technical advances such as the development of quantum computing, could present risks to the MODEX Tokens and the Platform by rendering ineffective the cryptographic consensus mechanism that underpins the Ethereum protocol. Amongst other things, upgrades to the Ethereum protocol, a hard fork in the Ethereum protocol or a change in how transactions are confirmed on the Ethereum protocol may have unintended adverse effects on MODEX Tokens.
- Risk of Mining Attacks
As with other decentralized cryptographic tokens based on the Ethereum protocol, the MODEX Tokens are susceptible to attacks by miners in the course of validating MODEX Token transactions on the Ethereum blockchain, including, but not limited to, double-spend attacks, majority mining power attacks, and selfish-mining attacks. Any successful attacks present a risk to the Platform and the MODEX Tokens, including, but not limited to, accurate execution and recording of transactions involving MODEX Tokens.
- Risk of Hacking and Security Weaknesses
MODEX Tokens may be subject to expropriation and/or theft. Hackers or other malicious groups or organizations may attempt to interfere with the Ethereum protocol, the Platform or the MODEX 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. Furthermore, because the Ethereum protocol and Platform are based on open-source software, there is a risk that a third party or a member of the Company team may intentionally or unintentionally introduce weaknesses into the core infrastructure of the Ethereum protocol and/or Platform, which could negatively affect the Ethereum protocol, the Platform and the MODEX Tokens or result in the loss of your MODEX Tokens or the loss of your ability to access or control your MODEX Tokens.
- Risk of Uninsured Losses
Unlike bank accounts or accounts at some other financial institutions, MODEX 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.
- Risks Associated with Uncertain Regulations and Enforcement Actions
The regulatory status of the MODEX 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, including the Platform and the MODEX Tokens. 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 Platform and the MODEX Tokens. Regulatory actions could negatively impact the Platform and the MODEX Tokens in various ways, including, for purposes of illustration only, through a determination that MODEX Tokens are a regulated financial instrument that require registration or licensing. The 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.
- Legal and Regulatory Factors Relating to the Company’s Business Model Might Present Barriers to Success
The Platform will operate in a new and developing legal environment. There is no established body of law or court decisions concerning blockchain and smart contracts, and the law regarding token sales and cryptocurrencies is developing. As a result, it is possible that there could be legal disputes over the interpretation of smart contracts used in connection with the Ethereum protocol, thus undermining the functionality of the Platform and MODEX Tokens. To the extent licenses or other authorizations are required in one or more jurisdictions in which the Company or any of its Affiliates operates or will operate, there is no guarantee that the Company and/or its Affiliates will be granted such licenses or authorizations. The Company and/or the its Affiliates may need to change their business model to comply with these licensing and/or registration requirements (or any other legal or regulatory requirements) in order to avoid violating applicable laws or regulations or because of the cost of such compliance. Uncertainty in how the legal and regulatory environment will develop could negatively impact the Company, its Affiliates, the Platform and/or the sale purchase holding or use of the MODEX Tokens.
- Risks of Government and Private Actions
The cryptocurrency market is new, and may be subject to heightened oversight and scrutiny, including investigations or enforcement actions. There can be no assurance that governmental authorities will not examine the operations of Company and/or of its Affiliates, or enact regulations or pursue enforcement actions against the Company and/or of its Affiliates, which may result in curtailment of, or inability to operate, the Platform as intended, or judgments, settlements, fines or penalties against the Company and/or its Affiliates. In addition, non-governmental parties may bring private legal actions against the Company and/or its Affiliates, either individually or as a class, which may result in curtailment of, or inability to operate, the Platform as intended, or judgments, settlements, fines or penalties against the Company and/or its Affiliates.
- Risks Arising from Taxation
The tax characterization of MODEX Tokens is uncertain. You must seek your own tax advice in connection with purchasing, holding and utilising MODEX Tokens, which may result in adverse tax consequences to you, including, without limitation, withholding taxes, transfer taxes, value added taxes, income taxes and similar taxes, levies, duties or other charges and tax reporting requirements. It is also possible that the income of the Company and/or its Affiliates would be subject to significant amounts of income and/or withholding taxes. The uncertainty in the tax treatment of MODEX Tokens and transactions in MODEX Tokens may expose subscribers, prospective purchasers, the Company and/or its Affiliates alike to unforeseen future tax consequences associated with the purchase, ownership, sale or other use of MODEX Tokens.
- Capital Control Risks
Many jurisdictions impose strict controls on the cross-border flow of capital. Holders of MODEX Tokens may be subject to these regulations.
- Countering the Financing of Terrorism (“CFT”) and Anti-Money Laundering (“AML”)
In the event that licenses, registrations or other authorizations are required under applicable CFT and/or AML regulations to operate the Platform, there is no guarantee that the Company and/or the Company’s Affiliates will be able to successfully obtain such licenses, registrations or authorizations. In addition, any illicit use of MODEX Tokens by bad actors could breach such regulations and seriously impact the global reputation of the Platform. In such event, it is conceivable that this could trigger scrutiny by CFT and AML regulators and potentially cause significant disruption to the distribution and circulation of MODEX Tokens and the operation of the Platform.
- Risk of Alternative Networks
It is possible that alternative networks could be established in an attempt to facilitate services that are materially similar to the Services. The Platform may compete with these alternative networks, which could negatively impact the Platform and MODEX Tokens.
- Risk of Insufficient Interest in the Platform or Distributed Applications
It is possible that the Platform 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 ecosystems (such as the Platform) more generally. Such lack of use or interest could negatively impact the development of the Platform and therefore the potential utility of MODEX Tokens.
- Risks Associated with the Development and Maintenance of the Platform
The Platform is still under development and may undergo significant changes over time. The Platform’s development will require significant capital, the expertise of the Company’s and/or its Affiliates’ management and substantial time and effort by skilled developers and other parties. The Company and/or its Affiliates may not retain the services of developers with the technical skills and expertise needed to successfully develop the Platform and progress it to a successful launch. In addition, even if the Platform is successfully developed and launched, there can be no assurance that the Platform will function as intended or that it will be able to sustain long-term operation of MODEX Tokens. Although we intend for the MODEX Tokens and Platform to follow the specifications set forth in Exhibit A, and will take commercially reasonable steps toward those ends (subject to internal business description), we may have to make changes to the specifications of the MODEX Tokens or Platform for any number of legitimate reasons. This could create the risk that the MODEX Tokens or Platform, as further developed and maintained, may not meet your expectations at the time of purchase. Furthermore, despite our good faith efforts to develop and maintain the Platform, it is still possible that the Platform will experience malfunctions or otherwise fail to be adequately developed or maintained, which may negatively impact the Platform and MODEX Tokens.
The Company plans to incorporate various technology solutions into the Platform. Some or all of these technology solutions may be new and/or relatively untested. There is significant risk to building and implementing such new technologies that may have never been used, or that are being used in different ways. There is no guarantee that such technologies will operate as intended or as described in the Whitepaper.
- Risk that Ethereum is Superseded
There can be no assurance that the technology being proposed to underpin the Platform will not be supplanted by competing protocols that improve upon, or fully replace, the Platform’s technology. It is not known whether the Ethereum will become a predominant protocol adopted globally by the industry. If the Ethereum network is surpassed or superseded, MODEX Token usage and adoption may decline. The Ethereum network’s technology may be available as open-source, meaning that anyone can copy and disseminate the Ethereum network’s source code either in the same form or with modifications as a “fork.”
- Risks Associated with Intellectual Property Matters
The Company and/or its Affiliates do not currently hold any issued patents and, thus, would not be entitled to exclude or prevent other entities from replicating their technology, methods and processes. While the Company and/or its Affiliates enter into confidentiality and invention assignment agreements with its developers, no assurance can be given that these agreements will be effective in controlling access to the Company’s (and/or its Affiliates’) proprietary information and trade secrets. The confidentiality agreements on which the Company (and/or its Affiliates) relies to protect certain technologies may be breached, may not be adequate to protect its confidential information, trade secrets and proprietary technologies and may not provide an adequate remedy in the event of unauthorized use or disclosure of its confidential information, trade secrets or proprietary technology. Further, these agreements do not prevent the Company and/or Affiliates or their respective competitors or others from independently developing technology that is substantially equivalent or superior to the Company’s and/or its Affiliates’ technology. In addition, others may independently discover the Company’s and/or its Affiliates’ trade secrets and confidential information, and in such cases, the Company and/or its Affiliates likely would not be able to assert any trade secret rights against such parties.
Although the Company and/or its Affiliates do not believe that the technology, processes and methods relating to the Platform have been patented by any third party, it is possible that patents have been issued to third parties that cover all or a portion of the Platform. Patent holders or other intellectual property owners may assert that the Platform or the Company’s and/or its Affiliates’ methods or practices infringe, misappropriate or otherwise violate their intellectual property or other proprietary rights. Any such claims, regardless of merit, could result in substantial expenses, divert the attention of management or materially disrupt the operation of the Platform, including through awarded injunctive relief.
- Risk of an Unfavorable Fluctuation of Ethereum and Other Currency Value
The Company intends to use the proceeds from selling MODEX Tokens to fund, amongst other things, the maintenance and development of the Platform, as described further in Exhibit B. The proceeds of the sale of MODEX Tokens will be denominated in Ether, and may be converted into other cryptographic and fiat currencies. In addition, some pre-sales of the MODEX Tokens may also be denominated in fiat currencies. If the value of Ethereum or other currencies fluctuates unfavorably during or after the Sale Period, the Company may not be able to fund development, or may not be able to maintain the Platform in the manner that is intended.
- Risk of Price Volatility
The prices of cryptocurrencies have historically been subject to dramatic fluctuations and are highly volatile, and the market price of MODEX Tokens may also be highly volatile. Several factors may influence the market price of MODEX Tokens, including, but not limited to:
- (i) Global supply of cryptocurrencies, both with respect to the number of different cryptocurrencies and the supply of each individual cryptocurrency;
- (ii) Global demand for cryptocurrencies, which can be influenced by the growth of acceptance of cryptocurrencies as payment for goods and services, the security of online cryptocurrency exchanges and digital wallets that hold cryptocurrencies, the perception that the use and holding of cryptocurrencies is safe and secure, and the regulatory restrictions on their use;
- (iii) Changes in software, software requirements or hardware requirements underlying blockchain or distributed ledger technologies;
- (iv) Fiat currency withdrawal and deposit policies of cryptocurrency exchanges on which cryptocurrencies may be traded and liquidity on such exchanges;
- (v) Interruptions in service from or failures of major cryptocurrency exchanges;
- (vi) Investment and trading activities of large investors, including private and registered funds, that may directly or indirectly invest in cryptocurrencies;
- Monetary policies of governments, trade restrictions, currency devaluations and revaluations; and
(viii) Regulatory measures, if any, that affect the use of cryptocurrencies.
A decrease in the price of a single cryptocurrency may cause volatility in the entire cryptocurrency industry and may affect other cryptocurrencies, including MODEX Tokens. For example, security breach that affects investor or user confidence in Bitcoin or Ether may affect the industry as a whole and may also cause the price of MODEX Tokens and other cryptocurrencies to fluctuate.
- Risks Associated with Use of Funds
There can be no assurance that the Company and/or its Affiliates will have sufficient funds to repay all or any part of the Consideration. Neither the Company and/or its Affiliates have any fiduciary or other obligation to use the funds generated by or in connection with the Modex Token sale for the benefit of the Purchasers, except as otherwise expressly provided in Private Token Purchase Commitment Forms.
- Risk Associated with the Blockchain Industry
The growth of the blockchain/distributed ledger technology industry in general, as well as the blockchain/distributed ledger technology networks with which the Platform and the MODEX Tokens will rely and interact, is subject to a high degree of uncertainty. The factors affecting the further development of the blockchain/distributed ledger technology industry, as well as blockchain/distributed ledger technology networks, include, without limitation:
- (i) Worldwide growth in the adoption and use of Bitcoin, Ether and other blockchain/distributed ledger technology technologies;
- (ii) Government and quasi-government regulation of Bitcoin, Ether and other blockchain/distributed ledger technology assets and their use, or restrictions on or regulation of access to and operation of blockchain/distributed ledger technology networks or similar systems;
- (iii) The maintenance and development of the open-source software protocol of the Bitcoin or Ethereum networks;
- (iv) Changes in consumer demographics and public tastes and preferences;
- (v) The availability and popularity of other forms or methods of buying and selling goods and services, or trading assets including new means of using fiat currencies or existing networks;
- (vi) General economic conditions and the regulatory environment relating to cryptocurrencies; or
- A decline in the popularity or acceptance of the Bitcoin or Ethereum networks which would adversely affect our results of operations; and
- The slowing or stopping of the development, general acceptance and adoption and usage of blockchain/distributed ledger technology networks and blockchain/distributed ledger technology assets may deter or delay the acceptance and adoption of the Platform and the MODEX Tokens.
- Risk of Dissolution of the Company or Platform
It is possible that, due to any number of reasons, including, but not limited to, an unfavorable fluctuation in the value of Ethereum (or other cryptographic and fiat currencies), decrease in the MODEX Tokens’ utility due to negative adoption of the Platform, the failure of commercial relationships, or intellectual property ownership challenges, the Platform may no longer be viable to operate and the Company and/or its Affiliates may dissolve.
- Risks Arising from Lack of Governance Rights
MODEX Tokens confer no governance rights of any kind with respect to the Platform or the Company and/or its corporate Affiliates, and MODEX Token holders will have no control or influence on decisions involving the Platform or the Company and/or its Affiliates.
- Risks Involving Cloud Storage
The Company and/or its Affiliates may provide to individual and institutional clients or utilise a cloud storage service and as such the Services are susceptible to a number of risks related to the storage of data in the cloud. The Services may involve the storage of large amounts of sensitive and/or proprietary information, which may be compromised in the event of a cyber attack or other malicious activity. Similarly, the Services may be interrupted and files may become temporarily unavailable in the event of such an attack or malicious activity. Because users can use a variety of hardware and software that may interface with the Platform, there is the risk that the Services may become unavailable or interrupted based on a failure of interoperability or an inability to integrate these third-party systems and devices that neither the Company nor its Affiliates not control with the Company’s Services. The risk that the Services may face increasing interruptions and the Platform may face additional security vulnerabilities could adversely affect the Platform and therefore the future utility of any MODEX Tokens that you hold.
- Unanticipated Risks
Cryptographic tokens such as the MODEX Tokens are a new and untested technology. In addition to the risks included in this Exhibit C and in the Legal Considerations, Risks and Disclaimer Document, there are other risks associated with your purchase, holding and use of MODEX 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 C.