NET (Token) Creation and Crowdsale Terms

Last Updated: June 26, 2017

PLEASE READ THESE TERMS CAREFULLY.

IF YOU ARE A CITIZEN, RESIDENT, OR GREEN CARD HOLDER OF THE UNITED STATES OR IF YOU DO NOT AGREE TO THESE TERMS OF SALE, YOU CANNOT TAKE PART IN THE CROWDSALE, SO PLEASE DO NOT CONTRIBUTE IN THE CROWDSALE.

THE TERMS CONTAIN A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. THIS IS ALSO A LEGALLY BINDING CONTRACT, CONSULT WITH YOUR ATTORNEY OR OTHER COMPETENT ADVISOR.

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Crowdsale Contribution

Your Ether (the token of the Ethereum blockchain or “ETH”) contribution to the Nimiq Crowdsale Smart Contract to create and receive Nimiq Exchange Tokens (“NET”) during the NET creation period (“Creation Period”) from Nimiq Network Ltd is subject to these Terms. Nimiq Network Ltd, the sponsor, is called “Company”, “we,” or “us” herein. Each of you (“Contributor” or “you") and Company is a “Party,” and together the “Parties.”

The Nimiq Crowdsale Smart Contract (“Smart Contract System”) code is adapted by the Company and deployed on the Ethereum protocol with the address provided at nimiq.com and is incorporated by reference herein (Contract Link).

By contributing ETH to create NET during the Creation Period and/or using NET exchanged to Tokens of the Nimiq Mainnet (“NIM”) for interaction on the Nimiq Mainnet (as defined below), you agree to be bound to these Terms and all terms incorporated by reference. NIM tokens enable the usage of and interaction with the decentralized Nimiq Mainnet and Ecosystem (“Nimiq Network”) that the Company and its affiliates are developing.

The information contained on the website, in press releases, interviews, blogs, vlogs or social media is of a descriptive nature only, is not binding and does not form part of the Terms, unless expressly repeated herein. If you are in any doubt about the content or meaning of these Terms or the action, consult with your solicitor, accountant or other professional adviser before contribution or any other action.

You and Company further agree as follows:

You understand that NET confer only the right to receive NIM for usage and interaction on the Nimiq Network. You are not contributing ETH to create and receive NET for any other purposes, including, but not limited to, any investment, speculative or other financial purposes.

You understand and accept that NET and NIM are tokens and do not represent or constitute any ownership right or stake, share, or security or equivalent rights nor any right to receive future revenues, shares or any other form of participation or governance right in or relating to the Nimiq Network and Company and/or its corporate affiliates.

Contributing ETH to the Smart Contract System and receiving ownership or control of NET carries no rights, express or implied, including, but not limited to, any voting, distribution, redemption, liquidation, proprietary, IP, financial or legal rights. NET is only the means to obtain NIM that allow usage and interaction with the Nimiq Network, if the network is successfully completed and deployed.

You understand that no market liquidity is guaranteed and that the value of NET and/or NIM over time may experience extreme volatility or depreciate in full. No governmental consents or any other compliance procedures will be undertaken by the Company.

I. Scope

Unless otherwise stated herein, these Terms govern only your ETH contribution to the Smart Contract System and Company during the NET Creation Period. The use of NIM in connection with the Nimiq Network will be governed by additional or other applicable terms and policies released with the deployment of the Nimiq Network By transferring ETH to the Smart Contract System, you expressly agree to the terms and conditions set forth in Smart Contract System Code existing on the Ethereum blockchain, which are incorporated by reference herein. You understand and have no objection to these procedures and material specifications.

II. Cancellation; Refusal of Purchase Requests

Your ETH contribution that you submit to the Smart Contract System to create and receive NET is final, and you have no right against any party to request any refund under any circumstance other than as implemented in the Smart Contract System or in the case that the Activation Threshold (at least 5,000 ETH contributed during the Creation Period) has not been reached. We reserve the right to refuse or cancel contributions to create and receive NET at any time in our sole discretion or as may be required by applicable law or regulation.

III. Acknowledgment and Assumption of Risks

You acknowledge and agree that there are risks associated with transferring ETH to the Smart Contract System to create NET, receiving and holding NET, and exchanging NET to NIM and using and transacting with NIM on the Nimiq Network as described herein. If you have any questions regarding these risks, please contact us at info at nimiq dot com.

BY CONTRIBUTING ETH TO THE Smart Contract System, YOU EXPRESSLY ACKNOWLEDGE AND ASSUME THESE PARTICULAR BUT NOT EXHAUSTIVE RISKS:

  1. Risk of software weaknesses: The User understands and accepts that the Smart Contract System, the underlying software application, and software platform (i.e. the blockchain) is still in development, that there will be no warranty that the process for creating NET or NIM will be uninterrupted or error- free and that there is an inherent risk that the software could contain weaknesses, vulnerabilities or bugs causing, inter alia, the complete loss of ETH, NET and/or NIM. The technology is still experimental which carries significant operational, technological, financial, regulatory and reputational risks. Accordingly, there is no warranty, including direct or indirect warranties that the Smart Contract System and NET and NIM are fit for its purpose.
  2. Risk of Losing Access to NET Due to Loss of Private Key(s), Password(s), Custodial Error or Contributor Error: Following the creation of NET by the Smart Contract System, the NET will be transferred to your own account (address) on the Ethereum network by the Smart Contract System. A private key, or a combination of private keys and password(s), is necessary to control and manage NET stored in your digital wallet or vault. Accordingly, loss of requisite private key(s) and/or password(s) associated with your digital wallet or vault storing NET will result in loss of such NET. Moreover, any third party that gains access to such private key(s), including by gaining access to login credentials of a digital wallet or vault service you use, may be able to misappropriate your NET. Any errors or malfunctions caused by or otherwise related to the digital wallet or vault you choose to receive and store NET, including your own failure to properly maintain or use such digital wallet or vault, may also result in the loss of your NET. Additionally, your failure to follow precisely the procedures for buying and receiving NET, including, for instance, if you provide the wrong address for receiving NET, may result in the loss of your NET. You understand that you must keep your password and private key safe and that you must not share them with anyone. You further understand that if your private key and/or password is lost or stolen, you will not be able to generate a new password or recover your private key, and you also lose your private keys and password, the NET associated with your account (address) will be unrecoverable and will be permanently lost. Furthermore, you understand that there is no recovery mechanism for lost keys and passwords, so no one will be able to help you retrieve or reconstruct a lost password and private keys and provide you with access to any lost NET.
  3. Risks Associated with the Ethereum Protocol: Because NET are based on the Ethereum protocol, any malfunction, breakdown or abandonment of the Ethereum protocol may have a material adverse effect on NET. Moreover, advances in cryptography, or technical advances such as the development of quantum computing, could present risks to NET by rendering ineffective the cryptographic consensus mechanism that underpins the Ethereum protocol.
  4. Risks Associated with the Nimiq Protocol: Advances in cryptography or technical advances such as the development of quantum computing, could present risks to NIM and the Mainnet, including the utility of NIM for transacting, by rendering ineffective the cryptographic consensus mechanism that underpins the Nimiq protocol.
  5. Risk of Mining Attacks: As with other decentralized cryptographic tokens based on the Ethereum protocol, NET are susceptible to attacks by miners in the course of validating NET transactions on the Ethereum blockchain, including, but not limited, to double-spend attacks, majority mining power attacks, and selfish-mining attacks. Any successful attacks present a risk to NET, including, but not limited to, accurate execution and recording of transactions involving NET. Similarly the Nimiq protocol will be susceptible to attacks by miners in the course of validating NIM transactions on the Nimiq blockchain, including, but not limited, to double-spend attacks, majority mining power attacks, and selfish-mining attacks. Any successful attacks present a risk to NIM, including, but not limited to, accurate execution and recording of transactions involving NIM.
  6. Risk of Hacking, Theft and Security Weaknesses: Hackers or other malicious groups or organizations may attempt to interfere with the Nimiq Mainnet 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 Mainnet is based on open-source software, there is a risk that a third party or a member of the Company team may intentionally or unintentionally introduce weaknesses into the core infrastructure of the Mainnet, which could negatively affect the Mainnet and NIM, including NIM utility for transacting on the Mainnet.
  7. Risks Associated with Markets for NET: NIM are intended to be used solely on the Nimiq Mainnet, and Company will not promote any secondary trading or external valuation of NET and NIM. This restricts the contemplated avenues for using NET to obtain Services or access the Mainnet, and could therefore create illiquidity risk with respect to NET you hold. Even if secondary trading of NET is facilitated by third party exchanges, such exchanges may be relatively new and subject to little or no regulatory oversight, making them more susceptible to market-related risks. Furthermore, to the extent that third-parties do ascribe an external exchange value to NET (e.g., as denominated in a digital or fiat currency), such value may be extremely volatile and diminish to zero.
  8. Risk of abandonment, failure, or lack of success of the Nimiq Network or its components: You understand and accepts that the creation of NET and the development of Nimiq Network may be fully or partially abandoned for several reasons, including lack of interest from the public, lack of funding, lack of commercial success or prospects (e.g. caused by competing projects). You therefore understand that there is no assurance that, even if Nimiq Network is partially or fully developed and launched, you will receive any benefits through the NET and/or NIM held by you.
  9. Risk of Uninsured Losses: Unlike bank accounts or accounts at some other financial institutions, NET and NIM are uninsured unless you specifically obtain private insurance to insure them. Thus, in the event of loss or loss of utility value, there is no public insurer, such as the Federal Deposit Insurance Corporation, or private insurance arranged by us, to offer recourse to you.
  10. Risks Associated with Uncertain Tax, Regulations and Enforcement Actions: The legal, regulatory and tax status of NET and distributed ledger technology is unclear or unsettled in many jurisdictions. It is difficult to predict how or whether regulatory agencies may apply existing regulation with respect to such technology and its applications. It is likewise difficult to predict how or whether legislatures or regulatory agencies may implement changes to law and regulation affecting distributed ledger technology and its applications, including the Mainnet, NET and NIM. Regulatory actions could negatively impact the Mainnet, NET and NIM in various ways, including, for purposes of illustration only, through a determination that NET and NIM are a regulated financial instrument that require registration or licensing. Company may cease operations in a jurisdiction in the event that regulatory actions, or changes to law or regulation, make it illegal to operate in such jurisdiction, or commercially undesirable to obtain the necessary regulatory approval(s) to operate in such jurisdiction.
  11. Risk of Alternative Mainnets: It is likely that alternative versions of the Nimiq Mainnet (“alt-nimiq” or “forks”) will be released as separate blockchains, and these chains will compete against the official Nimiq for value. Successfully acquiring NIM through the exchange from NET only guarantees that you will receive NIM on the official network, not any forks. The Mainnet may compete with these forks, which would negatively impact the Mainnet and NIM, including NIM utility for transacting on the Mainnet.
  12. Risk of Insufficient Interest in the Mainnet or Distributed Applications: It is possible that the Nimiq Mainnet will not be used by a large number of individuals, companies and other entities or that there will be limited public interest in the creation and development of distributed Mainnets (such as the Nimiq Mainnet) more generally. Such a lack of use or interest could negatively impact the development of the Nimiq Mainnet and the potential utility of NIM, including its utility for transacting on the Mainnet.
  13. Risks Associated with the Development and Maintenance of the Mainnet: The Mainnet is still under development and may undergo significant changes over time. Although we intend for NIM and the Nimiq Mainnet to follow the specifications and will take commercially reasonable steps toward those ends, we may have to make changes to the specifications, including but not limited to the development plan, naming, branding and design, of NIM or the Nimiq Mainnet for any number of legitimate reasons. This could create the risk that NIM or the Nimiq Mainnet, as further developed and maintained, may not meet your expectations at the time of contributing to create NET. Furthermore, despite our good faith efforts to develop and maintain the Nimiq Mainnet, it is still possible that the Mainnet will experience malfunctions or otherwise fail to be adequately developed or maintained, which may negatively impact the Mainnet and the potential utility of NIM, including its utility for transacting on the Mainnet.
  14. Risk of an Unfavorable Fluctuation of Ether and Diversification: The Company team intends to use the ETH contributions from the Crowdsale to fund the maintenance and development of the Nimiq Mainnet, as described further in the Terms and Exhibit B. The ETH contributions may, at our discretion, be converted into other cryptographic and fiat currencies. If the value of ETH or other currencies fluctuates unfavorably during or after the Creation Period, the Company team may not be able to fund development, or may not be able to develop or maintain the Nimiq Mainnet in the manner that it intended.
  15. Risk of Dissolution of the Company: It is possible that, due to any number of reasons, including, but not limited to, an unfavorable fluctuation in the value of ETH (or other cryptographic and fiat currencies), decrease in NIM utility (including its utility for transacting on the Nimiq Mainnet), the failure of commercial relationships, or intellectual property ownership challenges, the Nimiq Mainnet may no longer be viable to operate and the Company may dissolve.
  16. Risks Arising from Lack of Governance Rights: Because NET and NIM confer no governance rights of any kind with respect to the Nimiq Network or Company, all decisions involving the Nimiq Network or Company will be made by Company at its sole discretion, including, but not limited to, decisions to discontinue the Mainnet, to sell more NET or NIM for use in the Mainnet, or to sell or liquidate the Company. These decisions could adversely affect the Nimiq Network and the utility of NET or NIM that you hold and including NIM utility for transacting on the Nimiq Mainnet.
  17. Unanticipated Risks: Cryptographic tokens such as NET and NIM are a new and untested technology. In addition to the risks included herein, there are other risks associated with your contribution, holding and use of NET or NIM, including those that the Company cannot anticipate. Such risks may further materialize as unanticipated variations or combinations of the risks discussed above.

IV. Security

You are responsible for implementing measures for securing the wallet, vault or other storage mechanism that you use to receive and hold NET, 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 NET. We are not responsible for any such losses.

V. Personal Information

We may determine, for regulatory compliance purposes, that it is necessary to obtain certain information about you in order to comply with applicable laws or regulations in connection with accepting contributions to create and allocate NET to you or transfer NET to NIM. You agree to provide us such information promptly upon request.

VI. Taxes

You are responsible for determining what, if any, taxes apply to your contribution to create and receive NET, including, for example, sales, use, value added, wealth, income, 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, income, or similar tax arising from your contribution. You must seek your own legal and tax advice in connection with purchasing NET, which may result in adverse tax consequences to you, including withholding taxes, income taxes and tax reporting requirements.

VII. Representations and Warranties

By transferring Ether to the Smart Contract System to create and receive NET, you represent and warrant that:

  1. You have read and understand these Terms;
  2. You are not a citizen, resident (tax or otherwise) or green card holder of the United States of America. You are also not a citizen or resident of a country, whose legislation conflicts with the present allocation of NET or NIM and the Nimiq Network protocol in general or are not a resident in and/or hold a passport issued by a High-Risk jurisdiction nation as defined by FATF & OFAC;
  3. You are legally permitted to transfer ETH to the Smart Contract System, create and obtain NET in your jurisdiction, and legally permitted to receive software and contribute to the Smart Contract System for the development of Nimiq Network;
  4. You are purchasing NET for your own account and not on behalf of any entity;
  5. You have full legal and beneficial title, rights, interest, control and authority to contribute and have chosen to do so of their own free will and sole decision without any solicitation or influence from anyone else;
  6. ETH used for the contribution to the Nimiq Smart Contract System are: (a) good, clean, clear and are of non-criminal origin; (b) completely free and clear of any liens or encumbrances of any kind or any rights of third-party interests; and (c) have no origins that may be connected to any breach of money laundering regulations whatsoever, as defined in the jurisdiction of origin, or internationally. You are not obtaining or using NET and/or NIM for any illegal purposes;
  7. You have a deep understanding of the functionality, usage, storage, transmission mechanisms and other material characteristics of cryptographic tokens like Bitcoin and Ether, token storage mechanisms (such as token wallets), blockchain technology and blockchain-based software systems. You have carefully reviewed the code of the Smart Contract System located on the Ethereum blockchain at the address set forth in Exhibit B and fully understand and accept the functions implemented therein; You have obtained sufficient information about NET and Nimiq Network to make an informed decision to contribute to Company and create and receive NET;
  8. You understand these Terms and appreciate the risks and implications of your contribution, exchange and/or use; You understand the restrictions and risks associated with the creation of NET by the Smart Contract System and the holding or use of NIM and Nimiq Network as set forth herein and acknowledge and assume all such risks;
  9. You understand and expressly accepts that there is no warranty whatsoever on NET and/or NIM, the Smart Contract System and/or the success of Nimiq Network, expressed or implied (to the extent permitted by law), and that the Smart Contract System is used and NET are created and obtained and exchanged for NIM at the sole risk of the User on an “as is” and “under development” basis and without any warranties of any kind (to the extent permitted by law), including, but not limited to, warranties of title or implied warranties, merchantability or fitness for a particular purpose;
  10. 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 NET and/or NIM;
  11. You are of a sufficient age to legally create and obtain NET; The NET token holder warrants and attests that he/she is: (a) 18 years of age or older, or be (b) 13 or older with parental or guardian’s consent to these Terms;
  12. Your ETH contribution to create NET complies with applicable law and regulation in your jurisdiction, including, but not limited to, (i) legal capacity and any other applicable legal requirements in your jurisdiction for contributing to create NET, using NET, and entering into contracts with us, (ii) any foreign exchange or regulatory restrictions applicable to such purchase, and (iii) any governmental or other consents that may need to be obtained;
  13. You will comply with any applicable tax obligations in your jurisdiction arising from your contribution to create and receive NET; you understand that you bear the sole responsibility to determine if your the transfer of ETH to the Smart Contract System, the creation, ownership or use of NET and/or NIM, the transacting with NET and/or NIM over time, and/or any other action or transaction related to Company and Nimiq Network have tax implications for you; by contributing ETH to create, receive and use NET and/or NIM, and to the extent permitted by law, you agree not to hold any third party (including developers, auditors, contractors or founders) liable for any tax liability associated with or arising from the creation, ownership or use of NET and/or NIM or any other action or transaction related to Company and Nimiq Network.
  14. You understand and acknowledge that title to, and risk of loss of, ETH, NET, and NIM that you contribute to create and receive from the Smart Contract System passes from Company to you virtually and that there may be no jurisdiction that grants you recourse in the case of loss.

VIII. Indemnification

To the fullest extent permitted by applicable law, you indemnify, defend and hold harmless Company and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (the “Company Parties”) from and against all claims, demands, actions, damages, losses, costs and expenses (including attorneys’ fees) that arise from or relate to: (i) your contribution to create, receiving and using of NET or NIM, (ii) your responsibilities or obligations under these Terms, (iii) your violation of these Terms, or (iv) your violation of any rights of any other person or entity. Company reserves the right to exercise sole control over the defense, at your expense, of any claim subject to indemnification this Section.

IX. Forward Looking Statements

All statements contained in statements made in our web pages, blogs, social media, press releases or in any place accessible by the public and oral statements that may be made by Company or their respective directors, executive officers or employees acting on behalf of Company or it's agents, that are not statements of historical fact, constitute “forward- looking statements”. Some of these statements can be identified by forward-looking terms such as “aim”, “target”, “anticipate”, “believe”, “could”, “estimate”, “expect”, “if”, “intend”, “may”, “plan”, “possible”, “probable”, “project”, “should”, “would”, “will” or other similar terms. All statements regarding Company financial position, strategies, plans, and prospects and the future prospects of the industry which Company and Nimiq Network are in, are forward-looking statements. These forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause the actual future results, performance or achievements of Company and Nimiq Network to be materially different from any future results, performance or achievements expected, expressed or implied by such forward-looking statements. Neither Company, nor any other person represents, warrants and/or undertakes that the actual future results, performance or achievements of Company and Nimiq Network will be as discussed in those forward-looking statements. The actual results, performance or achievements of Company and Nimiq Network may differ materially from those anticipated in these forward-looking statements.

X. Disclaimers

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE SPECIFIED IN WRITING BY US, (A) NET ARE CREATED AND SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AS TO NET AND/OR NIM, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; (B) WE DO NOT REPRESENT OR WARRANT THAT NET AND/OR NIM ARE RELIABLE, CURRENT OR ERROR-FREE, MEET YOUR REQUIREMENTS, OR THAT DEFECTS IN NET AND/OR NIM WILL BE CORRECTED; AND (C) WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT NET AND/OR NIM OR THE DELIVERY MECHANISM FOR NET AND/OR NIM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

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 may not apply to you.

XI. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT WILL COMPANY OR ANY OF THE COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, WHERE RELATED TO LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE CROWDSALE CONTRIBUTION OR USE OF NET OR OTHERWISE RELATED TO THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE); AND (II) IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY AND THE COMPANY PARTIES (JOINTLY), WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF OR INABILITY TO USE NET, EXCEED THE AMOUNT YOU PAY TO US FOR NET.

The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional, willful or reckless misconduct of company. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations may not apply to you.

XII. Release

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE COMPANY AND THE OTHER COMPANY 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 USERS AND THE ACTS OR OMISSIONS OF THIRD PARTIES.

XIII. Dispute Resolution; Arbitration

  1. Binding Arbitration. Except for any disputes, claims, suits, actions, causes of action, demands 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, you and Company (i) waive your and Company’s respective rights to have any and all Disputes arising from or related to these Terms resolved in a court, and (ii) waive your and Company’s respective rights to a jury trial. Instead, you and Company will arbitrate Disputes through binding 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).
  2. ICC. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The Expedited Procedure Provisions shall not apply. Any arbitration will occur in Tortola, BVI. Arbitration will be conducted confidentially by a single arbitrator.
  3. No Class Arbitrations, Class Actions or Representative Actions. Any Dispute arising out of or related to these Terms is personal to you and 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.
  4. Notice; Informal Dispute Resolution. Each Party will notify the other Party in writing of any Dispute within thirty (30) days of the date it arises, so that the Parties can attempt in good faith to resolve the Dispute informally. Notice to Company shall be sent by e-mail to Company at info@nimiq.com. Notice to you shall be by email to the then-current email address in your Account. your notice must include (i) your name, postal address, email address and telephone number, (ii) a description in reasonable detail of the nature or basis of the Dispute, and (iii) the specific relief that you are seeking. If you and Company cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable Party, then either you or Company may, as appropriate and commence an arbitration proceeding.
  5. Severability of Dispute Resolution; Arbitration. If any term, clause or provision is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.

XIV. Governing Law and Venue

These Terms will be governed by and construed and enforced in accordance with the laws of Tortola, BVI, without regard to conflict of law rules that would cause the application of the laws of any other jurisdiction. Any Dispute between the Parties arising out or relating to these Terms or its subject matter or formation (including non-contractual Disputes of any claims that are not subject to arbitration will be resolved in the courts of Tortola, BVI. The parties hereby consent, other than for the mandated arbitration, to the exclusive jurisdiction of the courts in Tortola, BVI for any disputes arising under or related to this Agreement.

XV. Miscellaneous

If any term, clause or provision of these Terms is held unlawful, void or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.

These Terms constitute the entire agreement between you and us relating to your ETH contribution to the Smart Contract System to create and receive NET or NIM in this Crowdsale.

Until the Nimiq platform is fully completed, these Terms may change and be adapted to the changing marketplace and our development path. If we change the terms, we will attempt to do so in a fashion that preserves the intent of platform as described herein. By contributing at this stage, you have the potential advantages of contributing early on in the formation of a revolutionary web based blockchain, but necessarily also participate in the inherent risks.

We may make changes to these Terms from time to time as reasonably required to comply with applicable law or regulation. If we make changes, we will post the amended Terms at https://nimiq.com and update the “Last Updated” date above. We may also attempt to notify you through the NET website at https://nimiq.com. The amended Terms will be effective immediately.

We may assign our rights and/or obligations under these Terms. Our failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. We will not be liable for any delay or failure to perform any obligation under these Terms where the delay or failure results from any cause beyond our reasonable control.

Contributing in the Crowdsale does not create any form of partnership, joint venture or any other similar relationship between you and us. Except as otherwise provided in herein, these Terms are intended solely for the benefit of you and us and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree and acknowledge that all agreements, notices, disclosures, and other communications that we provide to you, including these Terms, will be provided in electronic form.

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Description of Company
Nimiq Network Ltd and the Nimiq Network

The Company is incorporated in Tortola, BVI. Company has the primary objective to administer the development of Nimiq Network.

NET and NIM

NET are interim token representing the right to exchange for NIM, the token of the Nimiq Mainnet, prior to the launch of the Nimiq Mainnet. NET are created by transferring ETH to the Smart Contract address made available at nimiq.com during the Creation Period and at the Creation Rate as described in Exhibit B. NET are based on the Ethereum protocol and conform to the ERC20 standard. NIM are the Tokens of the Nimiq Mainnet and protocol and allow usage and interaction with the Nimiq Network and its Ecosystem.

Nimiq Mainet

Nimiq Network is a decentralized, open source, browser based, blockchain protocol. On June 6, 2017 we released the BetaNet, a first stable version of the Nimiq blockchain to showcase the world’s first “Blockchain in a Browser” for testing and development purposes.

Our intention is to launch the Nimiq Mainnet by the end of this or early next year. An expected condition to launching the Mainnet is completing all of the advanced features of the protocol. Advanced Features are expected to include: sophisticated light-clients, memory-hard proof-of-work, lightning network primitives and primitives for a P2P-Exchange.

The parameters determining the Nimiq Mainnet Tokens amount and creation will be designed for a total final supply of 21 Million NIM with the following distribution:

Although Company intends to develop the Mainnet in the manner generally described above, it reserves the right to modify features, functionalities, branding or development plans in its sole and absolute discretion.

Further details regarding the Nimiq Mainnet are described in a whitepaper, available at: https://medium.com/nimiq-network/nimiq-a-peer-to-peer-payment-protocol-native-to-the-web-ffd324bb084. The information contained in the whitepaper and on the Nimiq website are of descriptive nature only, and do not form part of the Terms.

Ecosystem

We plan on following the encompassing approach of building both a protocol and an app ecosystem to streamline them into one frictionless and consistent experience. The user-facing apps of our ecosystem are the heart of a frictionless payment experience, because they accompany customers, merchants and developers through the full process. Development of the ecosystem of applications is independent of the Mainnet and the Mainnet launch does not depend on it.

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Token Sale Procedures

NET are created by transferring ETH to the Smart Contract System deployed on the Ethereum protocol with the address provided at nimiq.com and programmed according to the following specifications:

  1. Creation Period

    The Creation of NET will (a) begin at the time that mining commences on Ethereum block 3942670 and (b) continue until the time that (i) 60’000 ETH (“Contribution Cap”) have been confirmed as successfully received into the Smart Contract System or (ii) the maximum of 10’500’000 NET have been created (“Creation Cap”) or (iii) mining commences on Ethereum block 4081130, whichever is earlier (the “Creation Period”).

    Based on current Ethereum block mining times, the Company estimates that Ethereum block 3942670 will be mined on or about 1:00 PM UTC on June 28, 2017, and that Ethereum block 4081130 will be mined on or about 28 days thereafter. For the avoidance of doubt, these estimates are provided for informational purposes only, and the Sale Period will commence and conclude according to its definition above.

  2. Activation Threshold

    If less than 5’000 ETH have been received by the Smart Contract System during the Creation Period (the “Activation Threshold”), each Contributor will have the possibility to initiate the transfer of the respective amount of Ether submitted to the Smart Contract System from the Smart Contract System’s address back to the address used by that Contributor to transfer Ether to the Smart Contract System.

  3. Creation Rate

    In the first two weeks from start of the Creation Period, 1 ETH transferred to the Smart Contract will create 175 NET. In the second two weeks from start of the Creation Period 1 ETH transferred to the Smart Contract will create 125 NET. The switch to the second Creation Rate happens with mining on Ethereum block 4011900.

  4. Minimum Contribution and Gas Limit

    The minimum contribution required for the Smart Contract System to accept the transaction is the equivalent of ETH to create 1 NET. For the Smart Contract System to process the transaction you have to add a sufficient Gas Limit to each transaction as specified by the Ethereum Network.

  5. Procedures for Creating and Receiving NET (Smart Contract System)

    In order to contribute ETH to the Smart Contract System and to receive the created NET, you must have an Ethereum wallet that supports the ERC20 token standard. Company reserves the right to prescribe additional wallet requirements. Approximately forty-eight (36) hours prior to the commencement of the Creation Period, the Smart Contract System code should be deployed and the Ethereum address for the Crowdsale published via https:// nimiq.com (follow “Token Sale” and “Contribute” buttons). To initiate the creation and allocation to you of NET during the Sale Period, you must send an amount of ETH to the Ethereum address (the “NET Address”) that will be provided to you after you agree to these Terms by clicking the “I Agree with the Terms” button at the bottom of these Terms. Along with the NET Address and the amount of ETH you are transferring, you also need to enter a sufficient Gas Limit and the “Data Value” that is provided on the same page as the NET Address, in the respective Data Field of your compatible wallet. Sending Ether to the NET token Address during the Creation Period triggers a smart contract operation, pursuant to which the Smart Contract System will automatically create and deliver the corresponding NET to the ERC20 wallet address from which the ETH were sent.

    Ether must be sent to the NET Address during the Creation Period in order to create and receive NET. Sending Ether to any other address may result in loss of your ETH. Attempted transactions to purchase NET will be rejected if Ether is sent to the NET Address at any time before or after the Sale Period, or if the “Data Value” Field is left empty.

    According to Etherium, their Smart Contract System platform has been audited, programmed according to the current state of the art, and approved by its technical experts with respect to security and accuracy.

  6. Procedures for Creating and Receiving NIM

    Approximately two months before the Nimiq Mainnet launch we initiate and will announce via nimiq.com, press and social media channels the opening of the redeeming period. We will provide a tool for you to create the Nimiq account and address to which the NET equivalent NIM are going to be deposited. This is concluded by crediting the account with the corresponding NIM in the Genesis Block of the Nimiq Mainnet Blockchain. The exchange rate is fixed at 1 NIM = 10 NET and the tool will lead contributors through the simple process. Company reserves the right to adjust the procedure as it sees fit for the purpose of exchanging NET for NIM.

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Use of Proceeds

The ETH contributed for creating NET during the Creation Period, up to 60’000 Ether, will be used to compensate engineers, staff and contractors, cover operating costs and marketing expenses, and to address other administrative and unforeseen costs. The following is an estimated allocation of these budget items, which Company reserves the right to modify in its sole and absolute discretion:

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Disclosure

Contributing ETH to Creating, Holding, Exchanging and Using NET and NIM

Important Note: the NET are not being structured or sold as securities or any other form of investment product. Accordingly, none of the information presented herein, our website, press releases, interviews, blogs, social media, or elsewhere in the Terms is intended to form the basis for any investment decision, and no specific recommendations are intended. Company expressly disclaims any and all responsibility for any direct or consequential loss or damage of any kind whatsoever arising directly or indirectly from: (i) reliance on any information contained herein, (ii) any error, omission or inaccuracy in any such information or (iii) any action resulting from such information.

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NIM Activation Terms, NET Replacement, and Explanatory Note