TOKEN SWAP TERMS AND CONDITIONS
Your exchange of Ethereum-based Worldwide Asset eXchange ("WAX") tokens (referred to in these Terms as "ERC-20 WAX Tokens") for WAX Mainnet-based WAX tokens (referred to in these Terms as "WAX Protocol Tokens") during the Swap Period (as defined in these Terms) is subject to these Terms. Each of you and Exposition Park Holdings SEZC, a company incorporated in the Cayman Islands ("Company," "we," "us"), is a "Party" and together the "Parties." As used in these Terms, the term “Token” can mean either an ERC-20 WAX Token or a WAX Mainnet Token, and the term “Tokens” can mean either, or both.
PLEASE READ THESE TOKEN SWAP TERMS AND CONDITIONS (AS AMENDED AS PROVIDED HEREIN, THE “TERMS”) CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE (SET FORTH IN SECTION 17 BELOW) REQUIRES (WITH LIMITED EXCEPTIONS) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL BE PERMITTED TO PURSUE CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY ON AN INDIVIDUAL BASIS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT PARTICIPATE IN THE TOKEN SWAP.
1. Purpose and Use of WAX Protocol Tokens
a. The purpose of the WAX Protocol Tokens is to facilitate use of the related services of the Company on the WAX Mainnet, including providing access to collect, buy, sell and trade virtual assets and tangible assets in a decentralized, global peer-to-peer marketplace (collectively, the "Services"). Tokens are only for use in connection with the WAX Mainnet application under the Terms and only constitute a transferable representation of attributed functions of the WAX Mainnet.
c. The WAX Protocol Tokens do not confer any rights, whether express or implied, other than limited rights relating to the provision and receipt of Services in the WAX Mainnet and the use and interaction with the WAX Mainnet as available from time to time, subject to limitations and conditions in the WAX Mainnet Terms and Policies (as defined below). The WAX Protocol Tokens are not intended to be a digital currency, security, commodity or any other kind of financial instrument and these Terms do not constitute an invitation (to the public in the Cayman Islands or otherwise) to subscribe to any securities.
2. Scope of Terms.
a. Unless otherwise stated in these Terms, these Terms govern only your exchange of ERC-20 WAX Tokens for WAX Protocol Tokens during the Swap Period (the “Token Swap”).
b. Any use of WAX Protocol Tokens in connection with providing or receiving Services in the WAX Mainnet will be governed solely by other applicable terms and policies, which currently include the WAX Mainnet Terms and Policies. New terms or policies may be added to the WAX Mainnet Terms and Policies from time to time according to modification procedures set forth therein. You have read and understand these Terms as well as (i) the WAX Mainnet Terms and Policies and (ii) the Risk Disclosures (set forth in Section 6 below), and you will regularly check for updates to these documents on www.wax.io or other channels made available at the WAX Site, and will read and be bound by any updates.
c. YOU AGREE AND CERTIFY THAT YOU ARE EXCHANGING ERC-20 WAX TOKENS FOR WAX PROTOCOL TOKENS DURING THE TOKEN SWAP FOR YOUR OWN PERSONAL USE AND UTILITY AND TO PARTICIPATE ON THE WAX MAINNET, AND NOT FOR INVESTMENT, FOR DISTRIBUTION OR FOR FINANCIAL PURPOSES. YOU AGREE AND CERTIFY THAT TOKENS ARE NOT A SECURITY OR A CRYPTOCURRENCY AND YOU ACKNOWLEDGE THAT TOKENS MAY LOSE ALL VALUE. WAX Protocol Tokens are a cryptographic token used on the WAX Mainnet. If you did not understand any of the concepts identified in these Terms or the WAX Mainnet Terms and Policies, please contact us at the WAX Site. By agreeing to these Terms you affirm that you understand and agree with all concepts described in the specified documents to your satisfaction, and you affirm that you also shall the WAX Mainnet Terms and Policies.
d. To the extent of any conflict with these Terms, the WAX Mainnet Terms and Policies shall control with respect to any issues relating to the use of WAX Protocol Tokens in connection with providing or receiving Services on the WAX Mainnet.
a. You understand and accept that while the individuals and entities, including the Company, assigned to this task, will make reasonable efforts to continue to develop and complete the WAX Mainnet, it is possible that such development may fail and your Tokens may become useless and/or valueless due to technical, commercial, regulatory or any other reasons.
b. You are aware of the risk that even if all or parts of the WAX Mainnet are successfully developed and released in full or in parts, due to a lack of public interest, the WAX Mainnet could be fully or partially abandoned, remain commercially unsuccessful or shut down for lack of interest, regulatory or other reasons. You therefore understand and accept that your exchange of ERC-20 WAX Tokens for WAX Protocol Tokens carries significant financial, regulatory and/or reputational risks (including the complete loss of value of WAX Protocol Tokens and attributed features of the WAX Mainnet).
c. Consistent with the Terms of Token Sale for the ERC-20 WAX Tokens, WAX Protocol Tokens will be exchanged on an equal basis. To the extent the Terms contained in these Terms or in any other document or communication contradict the ones set forth in the WAX Mainnet Terms and Policies, the WAX Mainnet Terms and Policies shall prevail. Furthermore, neither this document nor any other document or communication may modify or add any additional obligations to the Company and/or any other person, entity and/or affiliates involved with the deployment or operation of the WAX Mainnet beyond those set forth in the WAX Mainnet Terms and Policies.
d. By exchanging ERC-20 WAX Tokens for WAX Protocol Tokens you expressly agree to all of these Terms. You further confirm to have carefully reviewed these Terms and the WAX Mainnet Terms and Policies and to fully understand the risks of exchanging ERC-20 WAX Tokens for WAX Protocol Tokens.
e. This document does not constitute a prospectus of any sort, is not a solicitation for investment and does not pertain in any way to an initial public offering or a share/equity offering and does not pertain in any way to an offering of securities in any jurisdiction. It is a description of the exchange of ERC-20 WAX Tokens for WAX Protocol Tokens.
f. By exchanging ERC-20 WAX Tokens for WAX Protocol Tokens, no form of partnership, joint venture, agency or any similar relationship between you and the Company and/or other individuals or entities involved with the deployment or operation of the WAX Mainnet is created.
4. Cancellation; Rescission. Your exchange of ERC-20 WAX Tokens for WAX Protocol Tokens during the Swap Period is final, and there are no refunds, cancellations or rescissions except as may be required by applicable law or regulation. We will provide you web-based support only, in our sole discretion, which support may include email, web forums, and knowledge base support. We will not provide telephone or live support. Our support email can be found on the WAX Site. By participating in the Token Swap, you acknowledge and agree unconditionally and irrevocably to waive any right of set-off, netting, counterclaim, abatement or other similar remedy which you might otherwise have in respect of any Tokens or under these Terms under the laws of any jurisdiction.
5. Token Swap Procedures and Specifications.
a. Accepted Tokens. Only ERC-20 WAX Tokens are accepted in exchange for WAX Protocol Tokens. The WAX Mainnet does not accept any other type of token or currency.
b. Swap Period. ERC-20 WAX Tokens can be submitted in exchange for WAX Protocol Tokens, on a 1-to-1 ratio, beginning on June 30, 2019, at 9:00AM Pacific Time (such period thereafter being the “Swap Period”).
c. WAX Protocol Tokens. A maximum amount of Three Billion Seven Hundred Million (3,700,000,000) WAX Protocol Tokens initially will be created by the WAX Mainnet, all of equal value and functionality. Thereafter, there could be inflationary factors affecting the number of WAX Protocol Tokens, including, without limitation, a 10% inflation from the block producers. Other inflationary events could occur in the future. ERC-20 WAX Tokens exchanged for WAX Protocol Tokens will be permanently decommissioned.
d. Ensure to Use the WAX Mainnet Smart Contract. The Company has deployed a smart contract system on the WAX Mainnet as the only method for exchanging ERC-20 WAX Tokens for WAX Protocol Tokens during the Swap Period. Access to this smart contract will be available through the WAX Site. To the extent that any third party website, service or smart contract offers WAX Protocol Tokens during the Swap Period or facilitates the sale, exchange or transfer of WAX Protocol Tokens in any way during the Swap Period or at any time up to the release of the WAX Protocol Tokens, such third party websites or services are, unless explicitly mentioned on the WAX Site, not authorized by the Company and have no relationship in any way with the Company or WAX, and such WAX Protocol Tokens shall be invalid.
e. Transferability of WAX Protocol Tokens.
i. Notwithstanding any other provision of these Terms, the Company reserves the right to treat as void any transfer or attempted transfer of a WAX Mainnet Token that the Company reasonably believes to be unlawful for any reason.
ii. Transferees of WAX Protocol Tokens in permitted transfers shall be deemed to be bound by these Terms and the WAX Mainnet Terms and Policies. The owner of the wallet in which any Token is held will (except as otherwise required under applicable law or as ordered by a court of competent jurisdiction) be treated as the absolute owner of that Token for all purposes (regardless of any notice of any trust or any other interest, or the theft or loss of any private key), and neither the Company nor any other person will be liable for so treating that person as the absolute owner of such Token. By transferring any Token in a permitted transfer, you assign all your rights, title and interest under these Terms to the transferee. Transfers of any WAX Mainnet Token shall be effective only when the time and date of the relevant transfer are included in a block on the WAX Mainnet. If any rule of law requires written notice to effect the transfer of any WAX Mainnet Token, such notice is deemed to have been given as an electronic record by inclusion of the relevant transaction on a block on the WAX Mainnet.
iii. Protections offered by applicable law in relation to the acquisition, storage, sale and/or transfer of the instruments and/or investments of the types referred to in the sub-clauses of Section 10(f) do not apply to the transfer of WAX Protocol Tokens under these Terms or to your storage, sale and/or transfer of WAX Protocol Tokens.
f. Excluded Contributions. The Token Swap involves only the exchange of ERC-20 WAX Tokens for WAX Protocol Tokens on a 1-to-1 basis. Any other type of consideration, including any type of fiat or cryptocurrency will not be accepted. In addition, DO NOT make use of any multi-signature wallet as we will not support them and your transaction will not be accepted. By doing so your ERC-20 WAX Tokens may be permanently lost and you may not receive your WAX Protocol Tokens.
g. Delivery. After completion of the Token Swap (which is subject to your "Know Your Customer" compliance and confirmation under Sections 7(b) and 8 below), the account you used to exchange Tokens will be credited with the appropriate number of Tokens from the total amount of Tokens you exchanged during the Token Swap (the "Swap Distribution"). All deliveries from the Swap Distribution will be made electronically. Deliveries will be made directly to the account, address or wallet associated with your Token Swap. Your cryptocurrency wallet must possess technical infrastructure that is compatible with the receipt, storage and transfer of the WAX Mainnet Token, meaning it must be EOS-compatible (such as Scatter). Non-EOS-compatible wallet addresses will not be accepted. In addition, your wallet address must not be associated with a third party exchange or service that has custody over the private key. You must own the private key if your address is an exchange address. The Company reserves the right to prescribe additional conditions relating to specific wallet requirements for the Token Swap at any time, acting in its sole discretion.
h. Third Party Service Provider or Agent. If you participate in the Token Swap through a third party service provider or agent, that service provider or agent is your agent, not ours, for the purpose of the Token Swap. You, not we, are responsible for ensuring that we actually receive the appropriate amount of ERC-20 WAX Tokens and that you receive the appropriate amount of WAX Protocol Tokens. We are not responsible for any loss or delay of Tokens due to your use of a third party service provider or agent
i. Exchange Submission Rejection. Without limiting the grounds upon which the Company may refuse to distribute WAX Protocol Tokens, if distribution of WAX Protocol Tokens to you, or the holding of WAX Protocol Tokens by you, is or becomes impossible or a violation of any applicable legal or regulatory requirements, or the Company suspects this may be the case, then:
i. the Company need not allow you to participate in the Token Swap or other distribute any WAX Protocol Tokens to you nor, in either case, to any other person or entity acting on your behalf;
ii. the Company may request, require or facilitate that steps be taken to ensure the full return of any WAX Protocol Tokens that you hold;
iii. the Company reserves the right to terminate its relationship with you and take any actions considered necessary or desirable for the Company to meet its legal and regulatory obligations; and
iv. such actions will be irrespective of any original contribution that has been made by you to the Company and/or any other third party in respect of the ERC-20 WAX Token, and the Company is not required to provide reasons.
6. Acknowledgement and Assumption of Risks. You acknowledge and agree that there are risks associated with purchasing Tokens, holding Tokens, exchanging Tokens, and using Tokens for providing or receiving Services in the WAX Mainnet, including, without limitation, those disclosed and explained below (the “Risk Disclosures”). You assume all of these risks. If you have any questions regarding these risks, please contact us at the WAX Site. BY PARTICIPATING IN THE TOKEN SWAP, YOU EXPRESSLY ACKNOWLEDGE AND ASSUME ALL OF THESE RISKS.
a. Risk of Losing Access to Tokens Due to Wallet Incompatibility: Your cryptocurrency wallet must possess technical infrastructure that is compatible with the receipt, storage and transfer of the WAX Mainnet Token, meaning it must be EOS-compatible (such as Scatter). Non-EOS-compatible wallet addresses will not be accepted. Non-compatible wallet addresses will not be accepted. In addition, your wallet address must not be associated with a third party exchange or service that has custody over the private key. You must own the private key if your address is an exchange address. The Company reserves the right to prescribe additional conditions relating to specific wallet requirements for the Token Swap at any time, acting in its sole discretion.
b. Risks Associated with the Blockchain Protocols: ERC-20 WAX Tokens are based on the Ethereum protocol. WAX Protocol Tokens are based on the WAX Mainnet protocol. As such, any malfunction, breakdown, abandonment, unintended function, unexpected functioning of or attack on the Ethereum protocol or the WAX Mainnet protocol may have an adverse effect on the ERC-20 WAX Tokens or WAX Protocol Tokens, respectively, including causing them to malfunction or function in an unexpected or unintended manner.
c. Risks Associated with Your Credentials: Any third party that gains access to or learns of your wallet login credentials or private keys may be able to dispose of your Tokens. To minimize this risk, you should guard against unauthorized access to your electronic devices. Best practices dictate that you safely store private keys in one or more backup locations geographically separated from the working location. In addition, you are responsible for giving us the correct wallet address to which to send your Tokens. If you give us the incorrect address to which to send your Tokens, we are not responsible for any loss of Tokens that may occur.
d. Risk of Unfavorable Regulatory Action in One or More Jurisdictions:
i. Blockchain technologies and cryptographic tokens have been the subject of scrutiny by various regulatory bodies around the world. Blockchain technology allows new forms of interaction and it is possible that certain jurisdictions will apply existing regulations on, or introduce new regulations addressing, blockchain technology based applications, which regulations may be contrary to the current setup of the WAX Mainnet or its smart contract system and, therefore, may result in substantial modifications to the WAX Mainnet and such smart contract systems, including its termination and the loss of Tokens.
ii. The regulatory status of cryptographic tokens and distributed ledger technology is unclear or unsettled in many jurisdictions. It is difficult to predict how or whether regulatory authorities may apply existing regulation with respect to such technology and its applications, including specifically (but without limitation to) the WAX Mainnet and Tokens. It is likewise difficult to predict how or whether any legislative or regulatory authorities may implement changes to law and regulation affecting distributed ledger technology and its applications, including specifically (but without limitation to) the WAX Mainnet and Tokens. Regulatory actions could negatively impact the WAX Mainnet and Tokens in various ways, including, for purposes of illustration only, through a determination that Tokens are a regulated financial instrument that requires registration, licensing or restriction. The Company may cease operations in a jurisdiction if 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. The functioning of the WAX Mainnet and the Tokens could be impacted by any regulatory inquiries or actions, including restrictions on the use, sale or possession of digital tokens like the Tokens, which restrictions could impede, limit or end the development of the WAX Mainnet and increase legal costs.
iii. The cryptocurrency exchange market, the token listing and trading market, initial coin offerings, and by extension the WAX Mainnet, is subject to a variety of federal, state and international laws and regulations, including those with respect to “know you customer” and “anti-money laundering” and customer due diligence procedures, privacy and data protection, consumer protection, data security, and others. These laws and regulations, and the interpretation or application of these laws and regulations, could change. In addition, new laws or regulations affecting the WAX Mainnet could be enacted, which could impact the utility of Tokens in the WAX Mainnet. Additionally, WAX Mainnet users are subject to or may be adversely affected by industry specific laws and regulations or licensing requirements. If any of these parties fails to comply with any of these licensing requirements or other applicable laws or regulations, or if such laws and regulations or licensing requirements become more stringent or are otherwise expanded, it could adversely impact the WAX Mainnet and the Tokens, including the utility of Tokens to obtain or provide Services within the WAX Mainnet.
e. Risk of Alternative, Unofficial WAX Mainnet: Following the Token Swap and the continued development of the initial version of the WAX Mainnet, it is possible that alternative applications could be established, which use the same open source code and protocol underlying the WAX Mainnet. The Tokens may have no intrinsic value with respect to such alternative applications. The WAX Mainnet may compete with these alternative, unofficial token-based applications, which could potentially negatively impact the WAX Mainnet and the WAX Protocol Tokens.
f. Risk of Insufficient Interest in the WAX Mainnet or Distributed Applications: It is possible that the WAX Mainnet will not be used by a large number of businesses, individuals, and other organizations and that there will be limited public interest in the creation and development of distributed applications. Such a lack of interest could negatively impact the WAX Protocol Tokens and the WAX Mainnet.
g. Risk that the WAX Mainnet, As Developed, Will Not Meet Expectations: The WAX Mainnet presently is under continued development and may undergo significant changes. Any expectations or assumptions regarding the form and functionality of the WAX Mainnet or the Tokens (including participant behavior) held by the Company or you may not be met, for any number of reasons, including, without limitation, mistaken assumptions or analysis, a change in the design and implementation plans, and changes in the execution of the WAX Mainnet. Moreover, we may not be able to retain full and effective control over how other participants will use the WAX Mainnet, what products or services will be offered through the WAX Mainnet by third parties, or how third-party products and services will utilize Tokens (if at all). This could create the risk that the Tokens or WAX Mainnet, as further developed and maintained, may not meet your expectations. Furthermore, despite our good faith efforts to develop and participate in the WAX Mainnet, it is still possible that the WAX Mainnet will experience malfunctions or otherwise fail to be adequately maintained, which may negatively impact the WAX Mainnet and Tokens, and the potential utility of the Tokens, including the utility of the Tokens for obtaining services and/or offering rewards and/or being used in the manner intended at the time of the Token Swap.
h. Inability to Fund Development or Maintenance: The Company may not be able to fund development, or may not be able to develop or maintain the WAX Mainnet in the manner that it intended.
i. Risks from Taxation: The tax characterization of the Tokens is uncertain. You must seek your own tax advice in connection with acquiring and holding Tokens, which may result in adverse tax consequences to you, including withholding taxes, income taxes, and tax reporting requirements.
j. Risk of Theft and Hacking:
i. Smart contracts, software applications and the WAX Mainnet may be exposed to attacks by hackers or other individuals, groups, organizations or countries that interfere with the WAX Mainnet or the availability of the Tokens in any number of ways, including denial of service attacks, Sybil attacks, spoofing, smurfing, malware attacks, or consensus-based attacks, or phishing, or other novel methods that may or may not be known. Any such successful attacks could result in theft or loss of Tokens, adversely impacting the ability to further develop the WAX Mainnet and/or related projects and derive any usage or functionality from Tokens. You must take appropriate steps to satisfy yourself of the integrity and veracity of relevant websites, systems and communications. Furthermore, because the WAX Mainnet is based on open-source software, there is a risk that a third party or a member of the Company’s team may intentionally or unintentionally introduce weaknesses or defects into the core infrastructure of the WAX Mainnet, which could negatively affect the WAX Mainnet and Tokens.
ii. You acknowledge, understand and accept that if your private key or password gets lost or stolen, the Tokens associated with your wallet address may be unrecoverable and permanently lost. Additionally, any third party that gains access to your private key, including by gaining access to the login credentials relating to your wallet, may be able to misappropriate your Tokens. Any errors or malfunctions caused by or otherwise related to the digital wallet or vault you choose to receive and store Tokens, including your own failure to properly maintain or use such digital wallet or vault, may also result in the loss of your Tokens, for which the Company shall have no liability.
k. Risk of Security Weaknesses in the WAX Mainnet Core Infrastructure Software: The WAX Mainnet consists of open source software that is based on other open source software. There is a risk that the Company or other third parties may intentionally or unintentionally introduce weaknesses or bugs into the core infrastructural elements of the WAX Mainnet interfering with the use of or causing the loss of Tokens.
l. Risk of Weaknesses or Exploitable Breakthroughs in the Field of Cryptography: Advances in cryptography, or technical advances such as the development of quantum computing, could present risks to cryptocurrencies and the WAX Mainnet by rendering ineffective the cryptographic consensus mechanism that underpins the WAX Mainnet protocol. , which could result in the theft, loss or decreased utility of the Tokens. Smart contracts, blockchain application software and blockchain platform protocols are still in an early development stage and relatively unproven. There is no warranty or assurance that the process for creating WAX Protocol Tokens will be uninterrupted or error-free and there is an inherent risk that the software could contain defects, weaknesses, vulnerabilities, viruses or bugs causing, inter alia, the complete loss of contributions and/or Tokens.
m. Risk of Token Mining Attacks: As with other decentralized cryptographic tokens and cryptocurrencies, the blockchain used for the WAX Mainnet is susceptible to mining attacks, including double-spend attacks, majority mining power attacks, selfish-mining attacks, and race condition attacks. Any successful attacks present a risk to the WAX Mainnet, the Tokens and expected proper execution and sequencing of smart contract computations and Token transactions. Despite the efforts of the Company, the risk of known or novel mining attacks exists.
n. Risk of Lack of Adoption or Use of the WAX Mainnet: While the Tokens should not be viewed as an investment, they may have value over time. That value may be limited or non-existent if the WAX Mainnet lacks acceptance, use and adoption, which may have an adverse impact on the Tokens.
o. Risk of an Illiquid Market for Tokens: The Company is not aware of any marketplace for the WAX Protocol Tokens and there may never be any such marketplace for Tokens. There are currently no exchanges upon which the WAX Protocol Tokens would trade. If exchanges do develop, they will likely be relatively new and subject to poorly understood regulatory oversight. They may, therefore, be more exposed to fraud and failure than established, regulated exchanges for other products and have a negative impact on the WAX Protocol Tokens. To the extent that any third party ascribes an external exchange value to Tokens (e.g. as denominated in a crypto or fiat currency), such value may be extremely volatile and diminish to zero. If (despite your representations to us to the contrary) you are holding Tokens as a form of investment on a speculative basis or otherwise, or for a financial purpose, with the expectation or desire that their inherent, intrinsic or cash-equivalent value may increase with time, you assume all risks associated with such speculation or actions, and any errors associated therewith, and accept that the Tokens are not offered by the Company or its affiliates on an investment basis.
p. Risk of Uninsured Losses: Unlike bank accounts or accounts at some other financial institutions, funds held using the WAX Mainnet are generally uninsured. In the event of any loss, there is no public insurer, such as the FDIC, or private insurer, to offer recourse to you.
q. Risk of Dissolution of the WAX Mainnet: It is possible that, due to any number of reasons, including development issues with the WAX Mainnet, the failure of business relationships, lack of public interest, lack of funding, or competing intellectual property claims, the WAX Mainnet may no longer be viable as a business or otherwise and may dissolve or fail to maintain commercial or legal viability, or be abandoned. There is no assurance that you will receive any benefits through the Tokens.
r. Risk of Malfunction in the WAX Mainnet: It is possible that the WAX Mainnet malfunctions in an unfavorable way, including one that results in the loss of the Tokens.
s. Risk Arising from Lack of Governance Rights: Because Tokens confer no governance rights of any kind with respect to the WAX Mainnet or the Company; all decisions involving the Company (including to sell or liquidate the Company) will be made by the Company acting in its sole and absolute discretion, and all decisions involving the WAX Mainnet including, but not limited to, decisions to discontinue the WAX Mainnet and to create and issue more WAX Protocol Tokens, will be made in accordance with the WAX Mainnet Terms and Policies. These decisions could adversely affect the WAX Mainnet and/or Tokens you hold.
t. Risks Associated with Incomplete Information regarding the Tokens of the WAX Mainnet: You will not have full access to all the information relevant to the Company, the Tokens and/or the WAX Mainnet. The Company is not required to update you on the progress of the WAX Mainnet. You are responsible for making your own decision in respect of the Token Swap. The Company does not provide you with any recommendation or advice in respect of the Token Swap. You may not rely on the Company to provide you with complete or up to date information.
u. Unanticipated Risks: Cryptographic tokens are a new and untested technology. In addition to the risks discussed in the WAX White Paper and these Terms, there are risks that the Company cannot anticipate. Further risks may materialize as unanticipated combinations or variations of the discussed risks or the emergence of new risks.
a. Your Security. You are responsible for implementing reasonable measures for securing the wallet, vault or other storage mechanism you use to receive and hold WAX Protocol Tokens you receive in the Token Swap or thereafter, including any requisite private key(s) or other credentials necessary to access such storage mechanism(s). If your private key(s) or other access credentials are lost, you may lose access to your WAX Protocol Tokens. We are not responsible for any such losses. You will implement reasonable and appropriate measures designed to secure access to (i) any device connected with the email address associated with your account, (ii) private keys required to access any relevant WAX Mainnet address or your WAX Protocol Tokens, and (iii) your username, password and any other login or identifying credentials. If you are no longer in possession of any device connected with your account or are not able to provide your login or identifying credentials, we may, in our sole discretion and only if we are able, grant access to your account to any person providing additional credentials to us. We reserve the right to determine the additional credentials required, which may include a sworn, notarized statement of identity.
b. Additional Information. You will provide to us, or to our nominee, immediately upon our request, information that we, in our sole discretion, deem to be required to maintain compliance with any federal, state, local, domestic or foreign law, regulation or policy, including any "Know Your Customer" requirements and policies. Such information may include a passport, driver's license, utility bill, photograph of you, government identification cards or sworn statements, and we, or our nominee, may keep a copy of such information for our records. Such information will be used by us, or our nominee, to confirm compliance with such federal, state, local, domestic or foreign laws, regulations and policies before your Swap Distribution.
8. Personal Information. We may determine, in our sole discretion, that it is necessary to obtain certain information about you (e.g., identity, address, source of wealth) in order to comply with applicable law or regulation in connection with your exchange of ERC-20 WAX Tokens for WAX Protocol Tokens. You shall provide us such information promptly upon request, and you acknowledge that we may refuse to allow you to exchange your ERC-20 WAX Tokens for WAX Protocol Tokens until you provide such requested information and we have determined that it is permissible to allow you to exchange your ERC-20 WAX Tokens for WAX Protocol Tokens under applicable law.
9. Taxes. You are responsible for determining what, if any, taxes apply to your exchange of ERC-20 WAX Tokens for WAX Protocol Tokens, including, for example, sales, use, value added, and similar taxes. It is also your responsibility to withhold, collect, report and remit the correct taxes to the appropriate tax authorities. We are not responsible for withholding, collecting, reporting, or remitting any sales, use, value added, or other tax arising from your exchange of ERC-20 WAX Tokens for WAX Protocol Tokens. You agree not to hold the Company or any of the Company Parties liable for any tax liability associated with or arising from the creation, ownership, use or liquidation of Tokens or any other action or transaction related to the WAX Mainnet or the Token Swap.
10. Representations and Warranties. By submitting your ERC-20 WAX Tokens for exchange into WAX Protocol Tokens, you represent, warrant and covenant that:
a. It is your responsibility to participate in the WAX Mainnet in some manner, meaning that the ecosystem surrounding the WAX Mainnet is NOT solely dependent upon the efforts of the Company, but by the Token holders engaging with the WAX Mainnet and Services.
b. You are not a citizen or resident of a country whose legislation conflicts with the exchange of ERC-20 WAX Tokens for WAX Protocol Tokens and/or the WAX Mainnet in general, such as the People's Republic of China.
c. You have sufficient understanding of cryptographic tokens, token storage mechanisms (such as token wallets), and blockchain technology to understand these Terms and to appreciate the risks and implications of exchanging your ERC-20 WAX Tokens for WAX Protocol Tokens.
d. You have read and understand these Terms, and are entering into these Terms with us voluntarily and based on your own independent judgment and on advice from independent advisors as you have considered to be necessary or appropriate, after due inquiry.
e. You have obtained sufficient information about the WAX Protocol Tokens to make an informed decision to exchange your ERC-20 WAX Tokens for WAX Protocol Tokens.
f. The WAX Protocol Tokens confer only the right to provide and receive Services in the WAX Mainnet and confer no other rights of any form or nature with respect to the WAX Mainnet or the Company, including, but not limited to, any voting, distribution, redemption, liquidation, proprietary (including all forms of intellectual property), or other financial or legal rights. You acknowledge and accept that WAX Protocol Tokens do not represent or constitute:
i. any ownership right or stake, share, equity, security, collective investment scheme, managed fund, financial derivative, futures contract, deposit, commercial paper, negotiable instrument, investment contract, note, commodity, bond, warrant, certificate debt or hybrid instrument or any other financial instrument or investment entitling the holder to interest, dividends or any kind or return or carrying equivalent rights (including in respect of the Company or the WAX Mainnet);
ii. any right to receive future revenues, shares or any other form of participation or governance right from, in or relating to the Company and/or the WAX Mainnet;
iii. any form of currency, money, deposit or legal tender, whether fiat or otherwise, in any jurisdiction, nor do they constitute any substitute or representation of currency, money, deposit or legal tender (including electronic money); or
iv. any right, title, interest or benefit whatsoever in whole or in part, in the WAX Mainnet, the Company or any assets related to either of them, except that WAX Protocol Tokens may be used in connection with transactions on the WAX Mainnet, subject to these Terms and the WAX Mainnet Terms and Policies.
g. You are not exchanging your ERC-20 WAX Tokens for WAX Protocol Tokens for any use or purpose other than to provide or receive Services in the WAX Mainnet, including, but not limited to, for any investment, speculative or other financial purposes.
h. Your exchange of your ERC-20 WAX Tokens for WAX Protocol Tokens complies with applicable law and regulation in your jurisdiction, including, but not limited to, (i) legal capacity and any other threshold requirements in your jurisdiction for the exchange of your ERC-20 WAX Tokens for WAX Protocol Tokens and entering into contracts with us, (ii) any foreign exchange or regulatory restrictions applicable to the Token Swap, and (iii) any governmental or other consents that may need to be obtained.
i. You shall promptly provide to the Company, upon request, proof of identity and/or source of funds and/or other documentation or other information that the Company may request from time to time in connection with the Company's obligations under, and compliance with, applicable laws and regulations, including but not limited to anti money laundering legislation, regulations or guidance and/or tax information reporting or withholding legislation, regulations or guidance, or any "Know Your Customer" requirements and policies.
j. You are legally permitted to receive the WAX Protocol Tokens.
k. You will comply with any applicable tax obligations, if any, in your jurisdiction arising from exchanging your ERC-20 WAX Tokens for WAX Protocol Tokens.
l. If you are exchanging ERC-20 WAX Tokens for WAX Protocol Tokens on behalf of any entity, (i) you are authorized to accept these Terms on such entity's behalf and such entity will be responsible for breach of these Terms by you or any other employee or agent of such entity (references to "you" in these Terms refer to you and such entity, jointly); (ii) the acceptance of these Terms and the entry into a binding agreement with the Company will not result in any breach of, be in conflict with, or constitute a material default under: (A) any provision of such entity’s constitutional or organizational documents (in the case of a corporate entity including, without limitation, any company or partnership); (B) any provision of any judgment, decree or order imposed on such entity by any court or governmental or regulatory authority; and/or (C) any material agreement, obligation, duty or commitment to which such entity is a party or by which such entity is bound; and (iii) such entity is duly incorporated, registered and validly existing under the applicable laws of the jurisdiction in which the entity is established.
m. If you are a corporation, company, partnership or other “non-natural person” entity, (i) the acceptance of these Terms and the entry into a binding agreement with the Company will not result in any breach of, be in conflict with, or constitute a material default under: (A) any provision of your constitutional or organizational documents (in the case of a corporate entity including, without limitation, any company or partnership); (B) any provision of any judgment, decree or order imposed on you by any court or governmental or regulatory authority; and/or (C) any material agreement, obligation, duty or commitment to which you are a party or by which you are bound; and (ii) you are duly incorporated or organized, registered and validly existing under the applicable laws of the jurisdiction in which you are established.
n. You are not a governmental or semi-governmental authority.
o. You are not a resident or domiciliary of New York State, the People's Republic of China or the Cayman Islands or purchasing Tokens from a location in New York State, the People's Republic of China or the Cayman Islands.
p. You are not exchanging your ERC-20 WAX Tokens for WAX Protocol Tokens from countries or regions comprehensively sanctioned by the U.S. Office of Foreign Assets Control ("OFAC") (including countries such as Ukraine, Cuba, Iran, North Korea, Sudan and Syria), or on behalf of governments of these countries or regions, nor will you use the WAX Protocol Tokens to conduct or facilitate any transactions with persons or entities located in these countries or regions.
q. You are not (i) a citizen or resident of a geographic area in which access to or use of the 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 applicable comprehensive 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, Unverified, or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons or Foreign Sanctions Evaders Lists, or the U.S. Department of State's Debarred Parties List. You will not use the WAX Protocol Tokens to conduct or facilitate any transactions with such persons described above. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Services. If you are registering to use 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 and bind it to these Terms.
r. Title to and risk of loss of the WAX Protocol Tokens you receive in the Token Swap passes from the Company to you in the Cayman Islands.
s. Tokens are not intended to be a digital currency, security, commodity or any other kind of financial instrument.
t. These Terms shall not be construed as an invitation (to the public in the Cayman Islands or otherwise) to subscribe for any securities, and you understand and acknowledge that no actions of, or documentation issued by the Company, shall be construed as such.
u. The Company is not registered with or licensed by any financial regulatory or securities authority in the Cayman Islands or elsewhere. Accordingly, no Cayman Islands or other financial regulatory or securities authority has passed upon the contents of these Terms or the merits of exchanging your ERC-20 WAX Tokens for WAX Protocol Tokens, nor have these Terms been filed with, or reviewed by any Cayman Islands or other financial regulatory or securities authority.
v. You are of a sufficient age to legally obtain and use WAX Protocol Tokens.
w. With regard to the Tokens, we make no guarantees that you will be able to resell the Tokens, or as to their future value, and that no market liquidity may be guaranteed and that the value of the Tokens over time may experience extreme volatility or depreciate in full.
x. You, as an active member of the WAX Mainnet, must maintain accurate records as to your ownership amounts of WAX Protocol Tokens, correct address and physical location, location of wallets, participation efforts, and provide all requested information necessary for the Company to maintain accurate records as to the ecosystem created for the Company and to notify all associated parties within the WAX Mainnet community.
y. You bear the sole responsibility to determine if the creation, ownership or use of the Tokens, the potential appreciation or depreciation in the value of the Tokens over time, the exchange of ERC-20 WAX Tokens for WAX Protocol Tokens and/or any other action or transaction related to the WAX Mainnet may have tax implications. By obtaining, holding or using the Tokens, and to the extent permitted by law, you agree not to hold any third party (including developers, auditors (e.g. contractors or founders)) liable for any tax liability associated with or arising from the creation, ownership or use of the Tokens or any other action or transaction related to the WAX Mainnet.
z. By exchanging your ERC-20 WAX Tokens for WAX Protocol Tokens, you are obtaining the functionality of the WAX Protocol Tokens on the WAX Mainnet, being aware of the commercial risks associated with the WAX Mainnet. You acknowledge and agree that (i) you have no expectation of obtaining any governance rights over the WAX Mainnet or of influencing the development or operation of the WAX Mainnet except as otherwise agreed in writing by the Company or as set forth in the WAX Mainnet Terms and Policies, and (ii) there is no guarantee or assurance of the quality, nature or standard of the services of the WAX Mainnet, features and/or attributes (if any) that will be made available through the WAX Mainnet in the future.
aa. You waive the right to participate in a class action lawsuit or a class wide arbitration against any entity or individual involved with the creation of the Tokens or the Token Swap.
bb. The creation of the Tokens and the Token Swap do not involve the purchase of shares, securities or any equivalent in any existing or future public or private company, corporation or other entity in any jurisdiction; and
cc. You have no right against any other party to request any refund of ERC-20 WAX Tokens exchanged for WAX Protocol Tokens, under any circumstances.
dd. You will not use Tokens to finance, engage in or otherwise support any unlawful activities.
11. Your Responsibilities.
a. You are responsible for properly configuring any software in connection with your access to, or use of, WAX Protocol Tokens.
b. The WAX Mainnet log-in credentials are for your internal use only and you may not sell, transfer, or sublicense them to any other person, except that you may disclose your credentials to your employees, contractors or agents performing work on your behalf. You are responsible for any person's use of your credentials. You will be deemed to have taken any action that you permit, assist or facilitate any person to take related to these Terms. You are responsible for any actions taken by anyone who purchases or otherwise acquires WAX Protocol Tokens from you (this person being referred to in these Terms as an "End User"). You will ensure that any End User complies with your obligations in these Terms and that the terms of your agreement with any End User are consistent with these Terms. You are responsible for providing customer service (if any) to any End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
12. Proprietary Rights.
a. Suggestions. If you provide any suggestions to the Company or any Company Party (as defined in Section 13), we will own all right, title, and interest in and to those suggestions, even if you have designated the suggestions as confidential or proprietary. The Company Parties shall be entitled to use, transfer and hypothecate the suggestions without restriction. You irrevocably assign to us all right, title and interest in and to such suggestions and shall provide us any assistance we may require to document, perfect and maintain our rights in the suggestions.
b. Hardware and Software. Under no circumstances will you gain any proprietary rights in any computer hardware or software (except the value of the WAX Protocol Tokens you receive in your Swap Distribution) used by us or our affiliates.
c. Intellectual Property. We retain all right, title and interest in all of our intellectual property, including without limitation (i) all patents, designs, copyright and related rights, database rights, knowhow and confidential information, trademarks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration, inventions, discoveries, processes, methods, compositions, formulae, techniques, information and data, whether or not patentable, copyrightable or protectable in trademark, and all trademarks, copyrights or patents based thereon; (ii) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognized in the future; and (iii) all applications, extensions and renewals in relation to any such rights (collectively, the “Company IP Rights”). You may not use any of the Company IP Rights for any reason, except with our express, prior, written consent which may be granted by us in our sole discretion and, if granted, thereafter revoked by us at any time. Except as expressly set out in these Terms, you are not entitled, for any purpose, to any of the Company’s IP Rights. We at all times retain ownership, including all rights, title and interests in and to the Company’s IP Rights and you understand and accept that by accepting the Token Swap pursuant to these Terms you will not (A) acquire or otherwise be entitled to any Company’s IP Rights; (B) make a claim in respect of any Company’s IP Rights or any other equivalent rights; or (C) use, attempt to use, copy, imitate or modify (whether in whole or in part) any Company’s IP Rights, except with our prior written consent.
a. To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless the Company and its parent companies, subsidiaries and affiliates, and its and their respective past, present and future employees, officers, directors, managers, contractors, consultants, equity holders, suppliers, vendors, service providers, agents, representatives, predecessors, successors and assigns (the "Company Parties"), on demand from and against all claims, demands, actions, damages, losses, costs and expenses (including attorneys' fees, court costs, investigative costs, amounts paid in settlement and other costs and expenses) that arise from or relate to: (i) your exchange of ERC-20 WAX Tokens for WAX Protocol Tokens, (ii) the performance or non-performance of your responsibilities and obligations under these Terms, (iii) your violation of these Terms, or (iv) your violation of any rights of any other person or entity.
b. The rights of the Company Parties under Section 13(a) are in addition to, and not in lieu of, (i) any other indemnities set forth in any other written agreement between you and Company, and (ii) any other remedies that may be available to the Company under applicable law or in equity.
c. The Company reserves the right to exercise sole control over the defense, at your cost and expense, of any claim subject to indemnification under this Section 13.
a. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE SPECIFIED IN A WRITING BY US, (i) THE WAX PROTOCOL TOKENS ARE ISSUED IN THE TOKEN SWAP ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AS TO THE TOKENS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; (ii) WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE TOKENS ARE RELIABLE, CURRENT OR ERROR-FREE, MEET YOUR REQUIREMENTS, OR THAT DEFECTS IN THE WAX PROTOCOL TOKENS WILL BE CORRECTED; AND (iii) WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE TOKENS OR THE DELIVERY MECHANISM FOR WAX PROTOCOL TOKENS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
b. WE DO NOT AND WILL NOT PROVIDE YOU WITH ANY SOFTWARE OTHER THAN THE WAX PROTOCOL TOKENS IN YOUR SWAP DISTRIBUTION.
c. YOU UNDERSTAND THAT THE TOKENS, BLOCKCHAIN TECHNOLOGY, THE WAX MAINNET AND OTHER CRYPTOCURRENCY ARE NEW AND UNTESTED TECHNOLOGIES OUTSIDE OF OUR CONTROL AND, THEREFORE, ADVERSE CHANGES IN MARKET FORCES, LAW OR TECHNOLOGY WILL EXCUSE OUR PERFORMANCE UNDER THESE TERMS.
d. TRANSACTIONS USING BLOCKCHAIN TECHNOLOGY, SUCH AS THOSE INVOLVING THE TOKEN SWAP, ARE AT RISK TO MULTIPLE POTENTIAL FAILURES, INCLUDING HIGH WAX MAINNET VOLUME, COMPUTER FAILURE, BLOCKCHAIN FAILURE OF ANY KIND, USER FAILURE, TOKEN THEFT, WAX MAINNET HACKING AND TELECOMMUNICATIONS OR INTERNET FAILURE OR DISRUPTION. WE ARE NOT RESPONSIBLE FOR ANY LOSS OF DATA, TOKENS OR OTHER CRYPTOCURRENCY, HARDWARE OR SOFTWARE RESULTING FROM ANY TYPES OF FAILURES, THEFT OR HACK.
e. Some jurisdictions do not allow the exclusion of certain warranties or disclaimer of implied terms in contracts with consumers, so some or all of the exclusions of warranties and disclaimers in this Section 14 may not apply to you.
15. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
a. IN NO EVENT WILL THE COMPANY OR ANY OF THE COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS; UNREALIZED GAIN OR SAVINGS; LOSS OF USE OR DATA; OR DAMAGES FOR BUSINESS INTERRUPTION, OR LOSS OF TOKENS) ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE TOKENS, THE TOKEN SWAP OR THE USE OF, OR INABILITY TO USE, THE TOKENS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR INFRINGEMENT OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE); AND
b. IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY AND THE COMPANY PARTIES (JOINTLY), WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR INFRINGEMENT OR OTHER THEORY, ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE TOKENS, THE TOKEN SWAP OR THE USE OF, OR INABILITY TO USE, THE TOKENS, EXCEED US$1000.
c. Sections 1 through 4, 5(e), 5(h), 6, 7(a), 9, 10, 11(b) and 12 through 21 shall survive the Token Swap, the Token Swap Period and any termination of these Terms. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations of this Section 15 may not apply to you.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THE TOKEN SWAP OR THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER THE END OF THE SWAP PERIOD OR IT WILL BE FOREVER BARRED.
16. Release. When you exchange your ERC-20 WAX Tokens for the WAX Protocol Tokens, this Section 16 (the “Release”) supersedes original terms of Token Sale Agreement (last version before close of ICO updated on November 7, 2017) respecting the original issuance of your ERC-20 WAX Tokens.
a. To the fullest extent permitted by applicable law, You release Exposition Park Holdings, a company incorporated in the Cayman Islands (“Company,” “we,” “us”) and the Company’s respective past, present and future predecessors in interest, successors in interest, successors, predecessors, parent companies, subsidiaries, affiliates, employees, agents, representatives, insurers, heirs, devisees, executors, administrators, fiduciaries, trustees, conservators, officers, directors, members, managers, shareholders, attorneys, advisors, and assigns (collectively, the “Company Released Parties”) from any and all past, present or future claims, actions, causes of action, class actions, costs, demands, obligations, expenses, injuries, judgments, losses, suits, damages, fees, interest, expenses, compensation, class actions or causes of action for declaratory or injunctive relief, restitution, compensatory, general, special, statutory, or punitive damages, of any kind or nature whatsoever, whether known or unknown, foreseen or unforeseen, liquidated or unliquidated, anticipated or unanticipated, suspected or unsuspected, past, present, or future, direct or indirect, contingent or absolute, whether individual, collective, or representative, and whether based on tort, contract, or other theories of recovery, including without limitation reasonable attorneys’ fees and other costs of defense (each a “Claim” and collectively “Claims”) arising out of, or in any way related to (1) Your purchase of ERC-20 WAX Tokens from the Company during the Token sale period (comprised of the Public Presale Period, the Invitation-Only Presale Period and the Public Sale Period, collectively referred to as the “Sale Period”), and (2) Your exchange (swap) of any ERC-20 WAX Token for any WAX Protocol Token.
b. You expressly waive any and all rights which you may have under California Civil Code Section 1542, as well as any other comparable, equivalent, or similar statutes, and principles in common law that would otherwise limit the coverage of this Release to include only those claims which You may know or suspect to exist in Your favor at the time of agreeing to this Release. California Civil Code Section 1542 reads as follows:
c. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
17. Dispute Resolution; Arbitration.
a. Binding Arbitration. Except for any controversies, disputes, demands, claims, causes of actions, or suits, actions or proceedings (collectively, "Disputes") in which either Party 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, or any other disputes or claims that for any reason do not fall within the agreement to arbitrate set forth in this Section 17 (all of the foregoing for which you and we shall submit to the personal and exclusive jurisdiction of the Cayman Islands), you (i) waive your rights to have any and all Disputes arising out of or in any way related to these Terms, the Tokens, the Token Swap or the use of, or inability to use, the Tokens resolved in a court, and (ii) waive your rights to a jury trial. Instead, you shall arbitrate all Disputes between you and any Company Party (including, without limitation, all Disputes concerning the interpretation and scope of this Section 17, the arbitrability of the controversy, dispute, demand, claim, or cause of action, or any related or prior agreement that you may have or have had with us) through binding and confidential arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
b. 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.
c. To seek arbitration, you must first send to us, by certified mail, a written Notice of Dispute ("Notice"). The Notice to us should be sent to 236 BritCay House Eastern Avenue, George Town, Grand Cayman, Cayman Islands (our "Notice Address"). Notice to you shall be by email to the then-current email address in your Account. The Notice must (i) describe the nature and basis of the Dispute and (ii) set forth the specific relief sought. If we and you do not resolve the Dispute within sixty (60) calendar days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled. As used in this Section 17, "we" and "us" includes, without limitation, any third party providing any product, service, or benefit in connection with the Tokens or these Terms if such third party is named as a co-party with us in any Dispute subject to this Section 17.
d. The seat of the arbitration is the Cayman Islands. The venue of the arbitration will be the Cayman Islands. The language of the arbitration will be English. The arbitration will be conducted before one commercial arbitrator from the International Chamber of Commerce ("ICC") with substantial experience in resolving commercial contract disputes. As modified by these Terms, and unless otherwise agreed upon by the Parties in writing, the arbitration will be governed by the International Chamber of Commerce Rules of Arbitration (collectively, the "Rules and Procedures"). By agreeing to be bound by these Terms, you either (i) acknowledge and agree that you have read and understand the Rules and Procedures, or (ii) waive your opportunity to read the Rules and Procedures and any claim that the Rules and Procedures are unfair or should not apply for any reason. Where no claims or counterclaims involved in the Dispute exceed US$10,000, the Dispute will be resolved by the submission of documents without a hearing, unless a hearing is requested by a Party or deemed to be necessary by the arbitrator, in which case, a Party may elect to participate telephonically.
e. You should review this Section 17 carefully. To the extent permitted by applicable law, you are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court in the state or municipality of your residence within the jurisdictional limits of the small claims court and as long as such matter is pending only in that court. Additionally, notwithstanding this agreement to arbitrate, claims of defamation, and infringement or misappropriation of the other Party's patent, copyright, trademark, trade secret or other intellectual property rights shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in a court located in the Cayman Islands. Additionally, notwithstanding this agreement to arbitrate, you or us may seek emergency equitable relief before a court located in the Cayman Islands in order to maintain the status quo pending arbitration and you shall submit to the exclusive personal jurisdiction of the courts located within the Cayman Islands for such purpose. A request for interim measures shall not be deemed to be a waiver of the right to arbitrate.
f. Except as stated in Section 17(e), your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators' decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
g. You and we must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) the arbitrator will honor claims of privilege and privacy recognized at law; (iv) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (v) subject to the limitation of liability provisions of these Terms, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (vi) you and we will pay our respective attorneys' fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys' fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the Rules and Procedures, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys' fees will be governed by the Rules and Procedures.
h. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of you and us.
i. This Section 17 will survive the Swap Distribution and any termination of these Terms as well as any voluntary payment of any debt in full by you or any bankruptcy by you or us. With the exception of subparts (i) and (ii) of Section 17(g) (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained in these Terms. If, however, either subpart (i) or (ii) of Section 17(g) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in a court located in the Cayman Islands.
j. Notwithstanding any provision in these Terms to the contrary, we agree that if we make any future change to this Section 17 (other than a change to the Notice Address) while you are a user of the WAX Protocol Tokens, you may reject any such change by sending us written notice within thirty (30) calendar days after the date of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute with us in accordance with the language of this Section 17 as of the later of (i) the date you first accepted these Terms and (ii) the date you last accepted any subsequent changes to these Terms.
k. For more information on the ICC, the Rules and Procedures, or the process for filing an arbitration claim, you may visit the ICC website at https://iccwbo.org/disputeresolutionservices/arbitration/rules-of-arbitration.
18. Governing Law and Venue. These Terms will be governed by and construed and enforced in accordance with the laws of the Cayman Islands, without regard to conflict of law rules or principles (whether of the Cayman Islands or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the Parties arising out of or relating to these Terms (including non-contractual Disputes of claims) will be resolved in accordance with Section 17.
19. Severability. If a court of competent jurisdiction holds any provision of these Terms to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect. The Parties intend that any invalid or unenforceable provisions will be interpreted to affect the intent of the original provisions. If such construction is not possible, the invalid or unenforceable provision will be severed from these Terms, but the rest of these Terms will remain in full force and effect.
20. Modifications to the Terms. We may modify these Terms and/or the WAX Mainnet Terms and Policies at any time by posting a revised version on the WAX Site, other channel we make available or, only if you have provided us with an email address, by email. The modified provisions will become effective upon posting or the date indicated in the posting, or if we notify you by email, as stated in the email. It is your responsibility to check the WAX Site and other channels regularly for modifications. Your continued use of the Tokens or the WAX Mainnet after any modification become effective constitutes your acceptance of the modification. We last modified these Terms on the date listed at the beginning of these Terms.
a. Confidentiality and Publicity. You may use Company Confidential Information (as defined below) only in connection with your exchange of ERC-20 WAX Tokens for WAX Protocol Tokens and pursuant to these Terms. You will not disclose Company Confidential Information during or after the Swap Period. You will use best efforts to avoid disclosure, dissemination or unauthorized use of Company Confidential Information, including, at a minimum, taking those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to these Terms or your exchange of ERC-20 WAX Tokens for WAX Protocol Tokens. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person.
i. "Company Confidential Information" means all nonpublic information disclosed by any Company Party, their respective business partners and their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Company Confidential Information includes, without limitation: (A) nonpublic information relating to any Company Party or their respective business partners' technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (B) third-party information that we are obligated to keep confidential; and (C) the nature, content and existence of any discussions or negotiations between you and any Company Party.
ii. Company Confidential Information does not include any information that: (A) is or becomes publicly available without breach of these Terms; (B) you can show conclusively by documentation to have been known to you at the time of your receipt from any Company Party; (C) you can show conclusively by documentation to have been received by you from a third party who did not acquire, use or disclose the same by a wrongful or tortious act; or (D) you can show conclusively by documentation to have been independently developed by you without reference to any Company Confidential Information.
b. Force Majeure. None of the Company Parties will be liable for any delay or failure to perform any obligation under these Terms where the delay or failure results from any force, event or condition outside of its control, including acts of God, labor disputes or other industrial disturbances, electrical, telecommunications, hardware, software or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, war, changes in blockchain technology and changes in the WAX Mainnet protocols.
c. Independent Contractors. We and you are independent contractors, and neither Party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
d. No Third Party Beneficiaries. These Terms do not create any third party beneficiary rights in any person except for any of our affiliates or licensors or other Company Parties as provided in these Terms.
e. U.S. Government Rights. If provided to the U.S. Government, Tokens are provided as "commercial items," "commercial computer software," "commercial computer software documentation," and "technical data" with the same rights and restrictions generally applicable to software services. If you are swapping ERC-20 WAX Tokens for WAX Protocol Tokens on behalf of the U.S. Government and these Terms fail to meet the U.S. Government's needs or are inconsistent in any respect with federal law, you shall immediately discontinue your exchange of ERC-20 WAX Tokens for WAX Protocol Tokens. The terms "commercial item", "commercial computer software," "commercial computer software documentation," and "technical data" are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
f. Import and Export Compliance. In connection with these Terms, you will comply with all applicable import, re-import, export and re-export control and laws, regulations, guidance and programs, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country or individual-specific economic sanctions programs implemented by OFAC. You are solely responsible for legal compliance related to your acquisition, use, exchange and transfer of Tokens.
g. Notices. All communications and notices to be made or given pursuant to these Terms must be in the English language.
i. To you: We may provide any notice to you under these Terms by: (A) posting a notice on the WAX Site; or (B) sending an email to the email address then associated with your account. Notices we provide by posting on the WAX Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current and active. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive or read the email.
ii. To us: To give us notice under these Terms, you must contact the Company by email to the WAX Site. We may update this email address for notices to us by posting a notice on the WAX Site or sending an email to you. Notices to us will be effective when received by us.
h. Assignment. You will not assign these Terms, or delegate or sublicense any of your rights under these Terms, without our prior written consent. Any assignment or transfer in violation of this Section 21(h) will be void. We may assign these Terms or any of its provisions without your consent. Subject to the foregoing, these Terms will be binding upon, and inure to the benefit of the parties and their respective successors and permitted assigns.
i. No Waivers. The failure by us to enforce any provision of these Terms will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
j. Entire Agreement. These Terms (including the web links, other agreements and instruments referred to in these Terms) constitute the entire agreement among the parties and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and thereof.