ICO PARTICIPATION AND ERT TOKEN USAGE TERMS AND CONDITIONS
Last updated: 22/10/2017
These Terms and Conditions shall constitute an ICO Participation and ERT Token Usage Agreement (“Agreement”) which also contains the terms and conditions that govern your use of the ERT public sale smart contract (“ERT Crowdsale Contract”); use of the related ERC-20 ERT token smart contract (“the ERT Token Contract”); and purchase of the related ERC-20 compatible tokens distributed on the Ethereum Blockchain (the “ERT Tokens”) and is an agreement between you or the entity that you represent (“Buyer” or “you”) and Esports.com Ltd, a company existing under the laws of Malta, with company registration number [C-82780] and having its registered address at [address] (“esports.com”), together with its parent company, subsidiaries and affiliates, “Company”). Buyer, the-sports.com and Company are herein referred to individually as a “Party” and collectively as the “Parties”.
NOW, THEREFORE, in consideration of the mutual representations, warranties and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Buyer hereby agree as follows:
IMPORTANT CONSUMER INFORMATION
PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY
This ERT Token Sale Agreement is not an offer to the public of securities or a collective investment scheme, nor does it require registration or approval from a regulatory authority.
Introduction to the eSports software and eSports Platform:
- Esports.com is developing an eSports platform (“eSports Platform”), an online community content portal eSports portal, as described in the Esports ICO White Paper, as amended from time to time and made available on the Website (as defined below) (“White Paper”).
- Once released, it will be the first of its kind and the largest in the world. It will allow scalable smart contracts to interface with the-eSports platform.
- Contributions for developing the-eSports platform are being collected by the-sports.com. In return for Contributions, the-eSports create genesis allocations of ERT, the cryptographic fuel necessary for the operation of and interaction with the-sports, in accordance with the terms of this Agreement and its Schedule.
- Company will have no control over when, how or whether the eSports Software is adopted or implemented, or how, when or whether the eSports Platform is launched.
BINDING AGREEMENT: Buyer understands and agrees that Buyer is subject to and bound by this Agreement by virtue of Buyer’s purchase of ERT Tokens.
NO U.S. PURCHASERS: ERT Tokens are not being sold to U.S. persons (as defined below). If you are citizen, resident of, or a person located or domiciled in, the United States of America including its states, territories or the District of Columbia or any entity, including, without limitation, any corporation, partnership, unincorporated entity or other legal person created or organized in or under the laws of the United States of America, any state or territory thereof or the District of Columbia (a “U.S. person”) do not purchase or attempt to purchase ERT Tokens.
ERT TOKENS HAVE NO RIGHTS, USES OR ATTRIBUTES. Ownership of ERT Tokens carries no rights other than the right to exchange and claim over the eSports Platform, and to participate in bonus activities as may be organised by the Company from time to time. ERT Tokens do not represent or confer any ownership right or stake, share or security or equivalent rights, intellectual property rights or any other form of participation relating to the eSports Platform.
PURCHASES OF ERT TOKENS ARE NON-REFUNDABLE AND PURCHASES CANNOT BE CANCELLED, EXCEPT AS EXPLICITLY MADE KNOWN TO THE BUYER IN WRITING. BUYER MAY LOSE ALL AMOUNTS PAID.
ERT TOKENS MAY HAVE NO VALUE.
COMPANY RESERVES THE RIGHT TO REFUSE OR CANCEL ERT TOKEN PURCHASE REQUESTS AT ANY TIME IN ITS SOLE DISCRETION.
PLEASE READ THE RISKS SET FORTH IN SECTION 7 CAREFULLY AND IN THEIR ENTIRETY.
THIS AGREEMENT INCLUDES PRE-DISPUTE RESOLUTION IN SECTION 9.1 AND REQUIRES ARBITRATION UNDER THE LAWS OF MALTA IN SECTION 9.2, WHERE DISPUTES ARE NOT RESOLVED IN ACCORDANCE WITH SECTION 9.1.
ACCEPTANCE OF ESPORTS PLATFORM AGREEMENT AND PURCHASE OF ERT TOKENS
- Acceptance of Agreement. This Agreement shall be effective and binding on the Parties when Buyer: (a) clicks the check box on the official //esports.com/, website and any other website as may be announced from time to time by esports.com (the “Website”) to indicate that Buyer has read, understands and agrees to the terms of this Agreement; or if earlier, (b) upon receipt by the Company of payment from the Buyer in respect of the ERT Tokens in fiat, ETC or BTC. Buyer agrees to be bound on this basis, and confirms that Buyer has read in full and understands this Agreement and the terms on which Buyer is bound.
- White Paper. Company has prepared the White Paper, which is available on the Website, describing matters relating to the eSports Software. Buyer has read and understands the White Paper and its contents. The White Paper, as it may be amended from time to time, is deemed part of this Agreement. The terms of this Agreement will prevail over the White Paper in case of conflict.
- ERT is an unregulated virtual currency. If there are any regulations imposed regarding ERT and virtual currencies, the terms and conditions of this Agreement and other terms regulating the usage of ERT may be changed significantly by the Company to ensure compliance with such regulatory requirements.
- Allocation and Distribution of ERT Tokens. eSports shall allocate and distribute ERT Tokens (the “ERT Token Crowdsale”) in accordance with the material specifications set forth in Schedule A to this Agreement, which includes details regarding the timing (the “ERT Distribution Period”) and pricing of the ERT Token Crowdsale and the amount of ERT Tokens that will be distributed. During the ERT Distribution Period, eSports will provide specific procedures on how Buyer should acquire ERT Tokens through the ERT Crowdsale Contract. By purchasing ERT Tokens, Buyer acknowledges and understands and has no objection to such procedures and material specifications. Failure to use the ERT Crowdsale Contract and follow such procedures may result in Buyer not receiving any ERT Tokens. The access or use of the ERT Token Contract and/or the receipt or purchase of ERT Tokens through any other means other than the Website which are not sanctioned or agreed to in any way by the Company, and will create no obligation on the Company towards the Buyer. Buyer should take great care that the website used to purchase ERT Tokens is the Website.
- ERT Rights and Attributes. ERT Tokens are cryptographic tokens created for access to the eSports Platform, and as benefits associated with this access, such as discounts for eSports products and services, advance payment for eSports products and services, or as tokens for participation in any bonus activities that may be carried out from time to time by eSports or the Company at its sole discretion. There are no guarantees of their future use or value, which can be zero. Although eSports and the Company shall endeavour to provide or offer to Buyer the products, services or bonus activities described in this sub-clause, they shall not be bound to do so. We may in the future decide to distribute Ethereum, Bitcoin or some other cryptocurrencies to users holding the ERT on the wallet provided by the company, in proportion to the amount of ERT held at that point in time and the performance of Esports.com. This may be done by airdrop or by raffle as may be decided by the Directors of Esports.com at the time. If there are any regulations imposed that may affect ERT rights and attributes, the terms and conditions of this Agreement and other terms regulating the usage of ERT may be changed significantly by the Company to ensure compliance with such regulatory requirements.
- Further Assurance. Notwithstanding any provision in this Agreement, the ERT Distribution will only take place where the ERT Token Crowdsale raises a total of two million Euros (€2,000,000) (“Minimum Funding Goal”). Where the Minimum Funding Goal is not reached, the ERT Crowdsale Contract shall automatically refund sums paid by the Buyer less any transaction costs or fees, and expenses incurred by the eSports in its marketing campaigns.
- No U.S. Buyers. ERT Tokens are not being offered to U.S. Persons. All U.S. Persons are prohibited and restricted from using the ERT Crowdsale Contract, and the Company is not in any way soliciting purchases by U.S. Persons. If a U.S. Person uses the ERT Crowdsale Contract, such person has done so and entered into this Agreement on an unlawful, unauthorized and fraudulent basis and this Agreement is null and void. Company is not bound by this Agreement if this Agreement has been entered into by a U.S. Person as Buyer or Buyer has entered into this Agreement or has purchased ERT Tokens on behalf of a U.S. person, and Company may take all necessary and appropriate actions, in its sole discretion, to invalidate this Agreement, including referral of information to the appropriate authorities. Any U.S. Person who uses the ERT Crowdsale Contract or enters this Agreement on an unlawful, unauthorized or fraudulent basis shall be solely liable for, and shall indemnify, defend and hold harmless eSports and the Company’s respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (collectively, the “eSports Parties”) from any damages, losses, liabilities, costs or expenses of any kind, whether direct or indirect, consequential, compensatory, incidental, actual, exemplary, punitive or special and including, without limitation, any loss of business, revenues, profits, data, use, goodwill or other intangible losses (collectively, the “Damages”) incurred by an eSports Party that arises from or is a result of such U.S. person’s unlawful, unauthorized or fraudulent use of the ERT Crowdsale Contract.
- No Representations and Warranties. The ERT Tokens will be distributed to Buyers pursuant to the ERT Crowdsale Contract. None of the eSports Parties makes any representations or warranties, express or implied, including, without limitation, any warranties of title or implied warranties of merchantability or fitness for a particular purpose with respect to the ERT Crowdsale Contract, the ERT Token Contract or the ERT Tokens or their utility, or the ability of anyone to purchase or use the ERT Tokens. Without limiting the foregoing, none of the eSports Parties represent or warrant that the process of purchasing the ERT Tokens or receiving the ERT Tokens will be uninterrupted or error-free or that the ERT Tokens are reliable and error-free. As a result, Buyer acknowledges and understands that Buyer may never receive ERT Tokens and may lose the entire amount Buyer paid to Company. Buyer shall provide an accurate digital wallet address to Company for receipt of any ERT Tokens distributed to Buyer pursuant to the ERT Crowdsale Contract and the ERT Token Contract.
- Not an Offering of Securities, Commodities, or Swaps. The sale of ERT Tokens and the ERT Tokens themselves are not securities, commodities, swaps on either securities or commodities or a financial instrument of any kind. Purchases and sales of ERT Tokens are not subject to the protections of any laws governing those types of financial instruments. This Agreement and all other documents referred to in this Agreement including the White Paper do not constitute a prospectus or offering document, and are not an offer to sell, nor the solicitation of an offer to buy an investment, a security, commodity, or a swap on either a security or commodity.
- Not an Investment. Buyer should not participate in the ERT Token Crowdsale or purchase ERT Tokens for investment purposes. ERT Tokens are not designed for investment purposes and should not be considered as a type of investment. Buyer acknowledges, understands and agrees that Buyer should not expect and there is no guarantee or representation or warranty by Company that: (a) the eSports Software will ever be adopted; (b) the eSports Software will be adopted as developed by eSports and not in a different or modified form; (c) a blockchain utilizing or adopting the eSports Software will ever be launched; and (d) a blockchain will ever be launched with or without changes to the eSports Software. Furthermore, holding ERT Tokens is not a guarantee, representation or warranty that the holder will be able to use the eSports Platform, or receive any tokens utilized on the eSports Platform, even if the eSports Platform is launched and the eSports Software is adopted, of which there is no guarantee, representation or warranty made by Company.
- Not for Speculation. Buyer acknowledges and agrees that Buyer is not purchasing ERT Tokens for purposes of investment, speculation, as some type of arbitrage strategy, for immediate resale or other financial purposes.
NO OTHER RIGHTS CREATED
- No Claim, Loan or Ownership Interest. Except as explicitly set out in Clause 2, the purchase of ERT Tokens: (a) does not provide Buyer with rights of any form with respect to the Company or its revenues or assets, including, but not limited to, any voting, distribution, redemption, liquidation, proprietary (including all forms of intellectual property), or other financial or legal rights; (b) is not a loan to Company; and (c) does not provide Buyer with any ownership or other interest in Company.
- Intellectual Property. Company retains all right, title and interest in all of Company’s intellectual property, including, without limitation, inventions, ideas, concepts, code, discoveries, processes, marks, methods, software, compositions, formulae, techniques, information and data, whether or not patentable, copyrightable or protectable in trademark, and any trademarks, copyright or patents based thereon. Buyer may not use any of Company’s intellectual property for any reason without Company’s prior written consent.
SECURITY AND DATA; TAXES
- Security and Data Privacy
- Buyer’s Security. Buyer will implement reasonable and appropriate measures designed to secure access to: (i) any device associated with Buyer and utilized in connection with Buyer’s purchase of ERT Tokens; (ii) private keys to Buyer’s wallet or account; and (iii) any other username, passwords or other login or identifying credentials. In the event that Buyer is no longer in possession of Buyer’s private keys or any device associated with Buyer’s account or is not able to provide Buyer’s login or identifying credentials, Buyer may lose all of Buyer’s ERT Tokens and/or access to Buyer’s account. Company is under no obligation to recover any ERT Tokens that have been lost, stolen or destroyed due the Buyer’s failure or negligence in maintaining appropriate level of security in accordance with this sub-clause.
- Additional Information. Upon Company’s request, Buyer will immediately provide to Company information and documents that Company, in its sole discretion, deems necessary or appropriate to comply with any laws, regulations, rules or agreements, including without limitation judicial process. Such documents include, but are not limited to, passport, driver’s license, utility bills, photographs of associated individuals, government identification cards, or sworn statements. Buyer consents to Company disclosing such information and documents in order to comply with applicable laws, regulations, rules or agreements. Buyer acknowledges that Company may refuse to distribute ERT Tokens to Buyer until such requested information is provided.
- Security and Data Privacy
- Buyer acknowledges, understands and agrees that: (a) the purchase and receipt of ERT Tokens may have tax consequences for Buyer; (b) Buyer is solely responsible for Buyer’s compliance with its tax obligations; and (c) Company bears no liability or responsibility with respect to any tax consequences to Buyer.
REPRESENTATIONS AND WARRANTIES OF BUYER
By purchasing ERT Tokens, the Buyer covenants, represents and warrants to each of the eSports Parties that:
- Not a U.S. Person. Buyer is not a US Person. Where Buyer status changes at any time, the Buyer shall immediately notify the eSports Parties of this change;
- Buyer has all requisite power and authority to execute and deliver this Agreement, to use the ERT Crowdsale Contract and the ERT Token Contract, purchase ERT Tokens, and to carry out and perform its obligations under this Agreement. Accordingly:
- Where Buyer is an individual, it represents and warrants that it is at least 18 years old and of sufficient legal age and capacity to purchase ERT Tokens.
- Where the Buyer is a legal person, Buyer is duly organised, validly existing and in good standing under the laws of its domiciliary jurisdiction, and every other jurisdiction where it conducts its business.
- Buyer has all requisite power and authority to execute and deliver this Agreement, to use the ERT Crowdsale Contract and the ERT Token Contract, purchase ERT Tokens, and to carry out and perform its obligations under this Agreement. Accordingly:
- No conflict. The execution, delivery and performance of this Agreement will not result in any violation of, be in conflict with, or constitute a material default under, with or without the passage of time or the giving of notice: (a) any provision of Buyer’s organizational documents, if applicable; (b) any provision of any judgment, decree or order to which Buyer is a party, by which it is bound, or to which any of its material assets are subject; (c) any material agreement, obligation, duty or commitment to which Buyer is a party or by which it is bound; or (d) any laws, regulations or rules applicable to Buyer.
- No Consents of Approvals. No Consents or Approvals. The execution and delivery of, and performance under, this Agreement require no approval or other action from any governmental authority or person other than Buyer.
- Buyer Status. Buyer is not subject to any of the disqualifying events listed in Rule 506(d)(1) of Regulation D under the Securities Act of 1933 (a “Buyer Event”), and there is no proceeding or investigation pending or, to the knowledge of Buyer, threatened by any governmental authority, that would reasonably be expected to become the basis for a Buyer Event. Buyer is legally permitted to participate in the initial coin offering and is legally permitted to receive and hold cryptocurrencies and tokens.
- Buyer Knowledge and Risks of Project. Buyer has sufficient knowledge and experience in business and financial matters, including a sufficient understanding of blockchain or cryptographic tokens and other digital assets, smart contracts, storage mechanisms (such as digital or token wallets), blockchain-based software systems and blockchain technology, to be able to evaluate the risks and merits of Buyer’s purchase of ERT Tokens, including but not limited, to the matters set forth in this Agreement, and is able to bear the risks thereof, including loss of all amounts paid, loss of ERT Tokens, and liability to the eSports Parties and others for its acts and omissions, including with limitation those constituting breach of this Agreement, negligence, fraud or wilful misconduct. Buyer has obtained sufficient information in order to make an informed decision to purchase ERT Tokens.
- Funds and Payments.
- The funds, including any fiat, virtual currency or cryptocurrency, Buyer uses to purchase ERT Tokens are not derived from or related to any unlawful activities, including but not limited to money laundering or terrorist financing, and Buyer will not use the ERT Tokens to finance, engage in, or otherwise support any unlawful activities.
- All payments by Buyer under this Agreement will be made only in Buyer’s name, from a digital wallet or bank account that is not located in a country or territory that has been designated as a “non-cooperative country or territory” by the Financial Action Task Force, and is not a “foreign shell bank” within the meaning of the U.S. Bank Secrecy Act (31 U.S.C. § 5311 et seq.), as amended, and the regulations promulgated thereunder by the Financial Crimes Enforcement Network, as such regulations may be amended from time to time.
- Funds and Payments.
- Miscellaneous Regulatory Compliance
- Anti-Money Laundering; Counter-Terrorism Financing. To the extent required by applicable law, Buyer complies with all anti-money laundering and counter-terrorism financing requirements.
- Sanctions Compliance. Neither Buyer, nor any person having a direct or indirect beneficial interest in Buyer or ERT Tokens being acquired by Buyer, or any person for whom Buyer is acting as agent or nominee in connection with ERT Tokens, is the subject of sanctions administered or enforced by any country or government (collectively, “Sanctions”) or is organized or resident in a country or territory that is the subject of country-wide or territory-wide Sanctions.
- Miscellaneous Regulatory Compliance
- Buyer expressly acknowledges, understands and agrees that Buyer is using the ERT Crowdsale Contract, the ERT Token Contract and purchasing ERT Tokens at the Buyer’s sole risk and that the ERT Crowdsale Contract, the ERT Token Contract and ERT Tokens are each provided, used and acquired on an “AS IS” and on an “AS AVAILABLE” basis without representations, warranties, promises or guarantees whatsoever of any kind by Company and Buyer shall rely on its own examination and investigation thereof.
- No Representation or Warranty. (A) COMPANY DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY; AND (B) WITH RESPECT TO THE ERT DISTRIBUTION CONTRACT, THE ERT TOKEN CONTRACT AND THE ERT TOKENS, COMPANY SPECIFICALLY DOES NOT REPRESENT AND WARRANT AND EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR AS TO THE WORKMANSHIP OR TECHNICAL CODING THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.
The Buyer acknowledges and understands the risks set out in this Clause 7, and that ERT Tokens may have no value. Buyer may lose all amounts paid. Accordingly, the Buyer has carefully reviewed, and acknowledges, understands and assumes the risks set out in this Clause, as well as other risks associated with the ERT Tokens (including all those which are not set out in this Agreement), all of which could render the ERT Tokens worthless or of little value:
- No Rights. Ownership of ERT Tokens carries no rights other than the right to exchange and claim over the eSports Platform. ERT Tokens do not represent or confer any ownership right or stake, share or security or equivalent rights, intellectual property rights or any other form of participation relating to the eSports Platform.
- Blockchain Delay Risk. On the Ethereum blockchain, timing of block production is determined by proof of work so block production can occur at random times. Buyer acknowledges and understands that the Ethereum blockchain may not include the Buyer’s transaction at the time Buyer expects and Buyer may not receive ERT Tokens at the time Buyer sends ETH.
- Ethereum Blockchain. The Ethereum blockchain is prone to periodic congestion during which transactions can be delayed or lost. Individuals may also intentionally spam the Ethereum network in an attempt to gain an advantage in purchasing cryptographic tokens. Buyer acknowledges and understands that Ethereum block producers may not include Buyer’s transaction when Buyer wants or Buyer’s transaction may not be included at all.
- Ability to Transact or Resell. Buyer may be unable to sell or otherwise transact in ERT Tokens at any time, or for the price Buyer paid. By using the ERT Crowdsale Contract or the ERT Token Contract or by purchasing ERT Tokens, Buyer acknowledges, understands and agrees that: (a) ERT Tokens may have no value; (b) there is no guarantee or representation of liquidity for the ERT Tokens; and (c) the eSports Parties are not and shall not be responsible for or liable for the market value of ERT Tokens, the transferability and/or liquidity of ERT Tokens and/or the availability of any market for ERT Tokens through third parties or otherwise.
- Token Security. ERT Tokens may be subject to expropriation and or/theft. Hackers or other malicious groups or organizations may attempt to interfere with the ERT Crowdsale Contract, the ERT Token Contract or the ERT 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 platform rests on open source software and ERT Tokens are based on open source software, there is the risk that Ethereum smart contracts may contain intentional or unintentional bugs or weaknesses which may negatively affect the ERT Tokens or result in the loss of Buyer’s ERT Tokens, the loss of Buyer’s ability to access or control Buyer’s ERT Tokens or the loss of ETH in Buyer’s account. In the event of such a software bug or weakness, there may be no remedy and holders of ERT Tokens are not guaranteed any remedy, refund or compensation.
- Access to Private Keys. ERT Tokens purchased by Buyer may be held by Buyer in Buyer’s digital wallet or vault, which requires a private key, or a combination of private keys, for access. Accordingly, loss of requisite private key(s) associated with Buyer’s digital wallet or vault storing ERT Tokens will result in loss of such ERT Tokens, access to Buyer’s ERT Token balance and/or any initial balances in blockchains created by third parties. Moreover, any third party that gains access to such private key(s), including by gaining access to login credentials of a hosted wallet or vault service Buyer uses, may be able to misappropriate Buyer’s ERT Tokens. Company is not responsible for any such losses.
- New Technology. The eSports Software and the eSports Platform and all of the matters set forth in the White Paper are new and untested. The eSports Software might not be capable of completion, implementation or adoption. It is possible that no blockchain utilizing the eSports Software will be ever launched and there may never be an operational eSports Platform. Buyer should not rely on the eSports Software or the ability to receive tokens associated with the eSports Platform in the future. Even if the eSports Software is completed, implemented and adopted, it might not function as intended, and any tokens associated with a blockchain adopting the eSports Software may not have functionality that is desirable or valuable. Also, technology is changing rapidly, so the ERT Tokens and any tokens transferable on the eSports Platform may become outdated.
- Reliance on Third-Parties. Even if completed, the ESPORTS Software will rely, in whole or partly, on third parties to adopt and implement it and to continue to develop, supply, and otherwise support it. There is no assurance or guarantee that those third parties will complete their work, properly carry out their obligations, or otherwise meet anyone’s needs, all of might have a material adverse effect on the ESPORTS Software and ESports Platform.
- Failure to Map a Public Key to Buyer’s Account. Failure of Buyer to map a public key to Buyer’s account may result in third parties being unable to recognize Buyer’s ERT Token balance on the Ethereum blockchain when and if they configure the initial balances of a new blockchain based upon the eSports Software of which Company makes no representation or guarantee.
- Exchange & Counterparty Risks. If Buyer sends ETH to the ERT Token Contract from an exchange or an account that Buyer does not control, pursuant to the ERT Token Contract, ERT Tokens will be allocated to the account that has sent ETH; therefore, Buyer may never receive or be able to recover Buyer’s ERT Tokens. Furthermore, if Buyer chooses to maintain or hold ERT Tokens through a cryptocurrency exchange or other third party, Buyer’s ERT Tokens may be stolen or lost. In addition, third parties may not recognize Buyer’s claim to any derivative tokens if and when launched by third parties according to the distribution rules set in the eSports Software. By using the ERT Crowdsale Contract, using the ERT Token Contract and/or by purchasing ERT Tokens, Buyer acknowledges and agrees that Buyer sends ETH to the ERT Token Contract through an exchange account and/or holds ERT Tokens on a cryptocurrency exchange or with another third party at Buyer’s own and sole risk.
- Changes to the eSports Software. The eSports Software is still under development and may undergo significant changes over time. Although Company intends for the eSports Software to have the features and specifications set forth in the White Paper, Company may make changes to such features and specifications for any number of reasons, and any party that adopts the eSports Software and launches the eSports Platform also may make changes, any of which may mean that the eSports Platform does not meet Buyer’s expectations.
- Risk of Alternative Blockchains based on eSports Software. The eSports Software will not likely be licensed under an open source license until after the end of the ERT Distribution Period; however, it is possible somebody will not respect the eSports Software copyright or will modify the eSports Software after it has been released under an open source license. Therefore, it is possible for someone to utilize the eSports Software to build and launch blockchain protocols using a token distribution other than the one intended for the ERT Tokens pursuant to the eSports Software both prior to or after the eSports Software has become licensed as open source.
- Project Completion. The development of the ESPORTS Software may be abandoned for a number of reasons, including, but not limited to, lack of interest from the public, lack of funding, lack of commercial success or prospects, or departure of key personnel.
- Lack of Interest. Even if the eSports Software is finished and adopted and the eSports Platform is launched, the ongoing success of the eSports Platform relies on the interest and participation of third parties. There can be no assurance or guarantee that there will be sufficient interest or participation in the eSports Platform.
- Uncertain Regulatory Framework. The regulatory status of cryptographic tokens, digital assets and blockchain technology is unclear or unsettled in many jurisdictions. It is difficult to predict how or whether governmental authorities will regulate such technologies. It is likewise difficult to predict how or whether any governmental authority may make changes to existing laws, regulations and/or rules that will affect cryptographic tokens, digital assets, blockchain technology and its applications. Such changes could negatively impact ERT Tokens in various ways, including, for example, through a determination that ERT Tokens are regulated financial instruments that require registration. Company may cease the distribution of ERT Tokens, the development of the eSports Software or cease operations in a jurisdiction in the event that governmental actions make it unlawful or commercially undesirable to continue to do so.
- Risk of Government Action. As noted above, the industry in which Company operates 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 pursue enforcement actions against Company. Such governmental activities may or may not be the result of targeting Company in particular. All of this may subject Company to judgments, settlements, fines or penalties, or cause Company to restructure its operations and activities or to cease offering certain products or services, all of which could harm Company’s reputation or lead to higher operational costs, which may in turn have a material adverse effect on the ERT Tokens and/or the development of the eSports Software.
LIMITATION OF LIABILITY; INDEMNIFICATION
- Limitation of Liability. To the fullest extent permitted by applicable law, Buyer disclaims any right or cause of action against the eSports Parties of any kind in any jurisdiction that would give rise to any Damages whatsoever, on the part of any eSports Party. Each of the eSports Parties shall not be liable to Buyer for any type of Damages, even if and notwithstanding the extent an eSports Party has been advised of the possibility of such Damages. Buyer agrees not to seek any refund, compensation or reimbursement from an eSports Party, regardless of the reason, and regardless of whether the reason is identified in this Agreement.
- In no circumstances will the aggregate joint liability of the eSports Parties, whether in contract, warrant, tort or other theory, for Damages to Buyer under this Agreement exceed the amount received by Company from Buyer.
- Force Majeure. Buyer understands and agrees that Company shall not be liable and disclaims all liability to Buyer in connection with any force majeure event, including acts of God, labour disputes or other industrial disturbances, electrical, telecommunications, hardware, software or other utility failures, software or smart contract bugs or weaknesses, earthquakes, storms, or other nature-related events, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war, technological change, changes in interest rates or other monetary conditions, and, for the avoidance of doubt, changes to any blockchain-related protocol.
- Release. To the fullest extent permitted by applicable law, Buyer releases the eSports Parties from responsibility, liability, claims, demands, and/or Damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between Buyer and the acts or omissions of third parties.
- To the fullest extent permitted by applicable law, Buyer will indemnify, defend and hold harmless and reimburse the eSports Parties from and against any and all actions, proceedings, claims, Damages, demands and actions (including without limitation fees and expenses of counsel), incurred by an eSports Party arising from or relating to: (i) Buyer’s purchase or use of ERT Tokens; (ii) Buyer’s responsibilities or obligations under this Agreement; (iii) Buyer’s breach of or violation of this Agreement; (iv) any inaccuracy in any representation or warranty of Buyer; (v) Buyer’s violation of any rights of any other person or entity; and/or (vi) any act or omission of Buyer that is negligent, unlawful or constitutes wilful misconduct.
- Company reserves the right to exercise sole control over the defense, at Buyer’s expense, of any claim subject to indemnification under this Section 8.5. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between Buyer and Company.
- Informal Dispute Resolution. Buyer and Company shall cooperate in good faith to resolve any dispute, controversy or claim (including non-contractual disputes or claims) arising out of, relating to or in connection with this Agreement, including with respect to the formation, applicability, breach, termination, validity or enforceability thereof (a “Dispute”). If the Parties are unable to resolve a Dispute within ninety (90) days of notice of such Dispute being received by all Parties, such Dispute shall be finally settled by Binding Arbitration as defined in Section 9.2 below.
- Binding Arbitration. Each Party irrevocably agrees that any Dispute not resolved within 90 days as set forth in Section 9.1 shall be finally settled by arbitration in accordance with Part V (International Arbitration) of the Malta Arbitration Act and the Arbitration Rules of the Malta Arbitration Centre as at present in force, which shall be deemed to be incorporated by reference into this Agreement. The number of arbitrators shall be one. The place of arbitration shall be Malta. The language to be used in the arbitral proceedings shall be English. The governing law of the Agreement shall be as set forth in Section 10.1 herein. The arbitration award shall be final and binding on the Parties (“Binding Arbitration”). The Parties undertake to carry out any award without delay and waive their right to any form of recourse insofar as such waiver can validly be made. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant Party or its assets. Company and Buyer will each pay their respective attorneys’ fees and expenses. Notwithstanding the foregoing, Company reserves the right, in its sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration.
- No Class Arbitrations, Class Actions or Representative Actions. Any dispute arising out of or related to this Agreement is personal to Buyer and Company and shall 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. Furthermore, 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.
- Governing Law and Venue. This Agreement shall be governed in all respects, including as to validity, interpretation and effect, by the laws of Malta, without giving effect to its principles or rules of conflict of laws, to the extent such principles or rules are not mandatorily applicable by statute and would permit or require the application of the laws of another jurisdiction.
- Buyer shall not assign this Agreement without the prior written consent of eSports. Any assignment or transfer in violation of this Section 10.2 will be void. Company may assign this Agreement to an affiliate. Subject to the foregoing, this Agreement, and the rights and obligations of the Parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives.
- Entire Agreement. This Agreement, including the exhibits attached hereto and the materials incorporated herein by reference, constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof, including, without limitation, any public or other statements or presentations made by any eSports Party about the ERT Tokens, the eSports Software, the eSports Platform, Blockchain Tokens or any other tokens on the eSports Platform.
- If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, inoperative or unenforceable for any reason, the provision shall be modified to make it valid and, to the extent possible, effectuate the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
- Modification of Agreement. Company may change, amend, delete or add to this Agreement or any of the terms and conditions contained in any policies or rules governing the Website at any time and in its sole discretion. Any such modified terms will become effective upon the posting of the revised terms or such policies and rules to the Agreement. It is Buyer’s responsibility to check the Website regularly for modifications to this Agreement. This Agreement was last modified on the date stated at the beginning of this Agreement. The Buyer’s continued use of the ERT Tokens, the Website and of any other service provided to it by the Company will constitute acceptance of such changes.
SCHEDULE INITIAL COIN OFFERING FOR THE ERT TOKEN AND ERT DISTRIBUTION PERIOD
The ERT Token Distribution following the initial coin offering for the purchase of ERT will take place as set out in this Schedule A. the Company reserves the right to amend the schedule set out in this schedule as may become necessary from time to time. Such amendments shall be notified to the Purchaser through publication of a notice on the Website.
- The ERT Token Crowdsale will be held in stages as set out below:
- A Pre-Sale period will take place until the earlier of 29th October 2017 or until 50% of all available ERT Tokens are sold;
- ERT smart contract & Tech-Whitepaper will be published on the Website on 15th October 2017;
- The ERT Token initial coin offering contribution campaign will commence on the 1st November 2017 1pm CET;
- End of our ERT Token initial coin offering contribution campaign 30th November 1pm CET;
- -ERT Tokens will be issued to Buyer on 15th December 2017, provided that the Minimum Funding Goal has been reached.
- Where the eSports funding raised by the initial coin offering exceeds five million Euros (€5,000,000) after deduction of transaction costs and fees, the eSports will provide a 10% bonus to early investors.
- Where the Buyer has purchased ERT Tokens during the Pre-Sale Period (as specified on the Website):
- The ERT Token Crowdsale will be held in stages as set out below:
- The ERT Token allocation to the Buyer will be made in accordance with a 25% bonus.
- the ERT Tokens will be distributed to the Buyer on or after the date and time set out in paragraph 1 of this Schedule, and the number of ERT Tokens to be distributed will be calculated on the basis of the value of the ERT cryptocurrency once the ERT Token Crowdsale has commenced.