PLEASE READ THESE TERMS CAREFULLY. THE TOKENS (AS DEFINED BELOW) ARE NOT (AND ARE NOT INTENDED TO BE) STRUCTURED OR SOLD AS SECURITIES OR ANY OTHER FORM OF INVESTMENT PRODUCT IN ANY JURISDICTION. THESE TERMS AND ANY OTHER DOCUMENT OR MATERIAL ISSUED IN CONNECTION WITH THE OFFER OR SALE OF THE TOKENS DO NOT CONSTITUTE A PROSPECTUS OR OFFER DOCUMENT OF ANY SORT AND ARE NOT INTENDED TO CONSTITUTE AN OFFER OF SECURITIES OR A SOLICITATION FOR INVESTMENT IN SECURITIES IN ANY JURISDICTION. NO REGULATORY AUTHORITY IN UNITED KINGDOM OR ELSEWHERE HAS EXAMINED OR APPROVED OF THESE TERMS OR THE TOKENS. NOTE THAT SECTION 17 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH AFFECT YOUR LEGAL RIGHTS.
Your purchase of KAYOCREDITS Smart Contracts tokens (each, a “Token”) during the Token Sale (as defined below) from GAMEMODE Ltd. (the “Company”) is subject to these Terms (as amended from time to time). In these Terms, (i) you and the Company shall each be referred to as a “Party” and, together, the “Parties”, (ii) “Section” shall mean a section in these Terms, and (iii)“Exhibit” shall mean an Exhibit to these Terms. In the case of any conflict or inconsistency between these Terms, the Exhibits or such other documents relating to the sale of the Tokens that is not expressly resolved in those documents, these Terms shall prevail.
By accepting these Terms and purchasing the Tokens from the Company, you hereby agree to be bound by these Terms (including the Exhibits) and any terms incorporated by reference. The Company reserves the right, at its sole and absolute discretion, to revise these Terms at any time and without prior notice, by posting the revised Terms on its website. The revised Terms will take effect immediately upon the Company publishing it. If you have any questions regarding these Terms, please contact the Company at [email protected]
- Commencement and Duration of Token Sale
The Company will conduct a pre-sale of the Tokens (“Pre-Sale”) and a public sale of Tokens (the “Public Sale”). Please refer to Exhibit B for information relating to the Pre-Sale. The Public Sale will begin at 5 p.m. GMT on June 12th, 2018 (the “Launch Date”), and end at 11:59 p.m. GMT on August 5th, 2018 (the “Crowdsale End Date
”) or when the total available supply of Tokens have been sold, whichever is earlier.
- Eligibility and Requirements
- In order to be eligible to participate in the Pre-Sale or the Public Sale (collectively, the “Token Sale”) and to log into the Token Sale portal to make a purchase, you need to register at the Token Sale page on https://kayocredits.io (the “Kayo Credits Website”) and provide the Company with your email address and such other information requested by the Company for the purpose of verifying your identity (the “User Credentials”).
- You shall not be eligible to participate in the Token Sale if you are subject to any applicable laws and regulations which would restrict or prohibit your participation in the Token Sale.
- In order to pay for any purchase of Tokens or to receive any refund in respect of any purchase of Tokens (as applicable), you must possess and maintain, in fully operational, secure and valid status, an Ethereum wallet which adheres to and supports the ERC-20 token standard (the “Token Receipt Address”), and a refund address (the “Refund Address”). The Company reserves the right to prescribe additional guidance regarding specific wallet requirements. For the avoidance of doubt, all refunds will be made in Ether (“ETH”). The Company shall not be responsible for any delays, losses, costs, non-delivery or other issues arising from the failure (whether by omission or otherwise) to provide an accurate Refund Address or Token Receipt Address (as applicable).
Purchase and Sale of Tokens
- During the Pre-Sale, the price per Token shall be such amount of ETH equivalent to USD $0.05 (5 Cents). The amount of ETH required shall be determined by the Company in its sole and absolute discretion with reference to the Exchange Rate (defined below), and shall be payable via a smart contract.
- Subject to these Terms, the Company shall have no obligation to deliver any Token to you until the Company has received (in full) the Purchase Price (as defined in Section 3(b)) in respect of your submission of request to purchase Tokens (“Purchase Request”).
- Any payment for the purchase of Tokens during the Token Sale shall be made strictly to the multi-signature address specified by the Company. In the event that you make payment to any other address or any other place, you agree and acknowledge that (1) such payments will not be received by the Company, and the Company shall not be under any obligation whatsoever to deliver any Tokens to you; and (2) the Company shall have no obligations in any form or whatsoever to you in respect of such payment.
- Exchange Rate. The amount of ETH quoted for your Purchase Request (“Purchase Price”) shall be equal to the US dollar value of your purchase amount of the Tokens (e.g., USD$50,000) divided by the Exchange Rate (as defined below). “Exchange Rate” shall mean the hourly USD/ETH opening exchange rate as sourced by the Company from cryptocompare.com (Kraken).
- Purchase Price Must Be Received in Full Within Two Hours. If the Company has not received the payment of the full Purchase Price in accordance with these Terms within two hours of the time that you receive your payment instructions from the Company, the Company reserves the right to void your Purchase Request and refuse your payment of the Purchase Price. For the avoidance of doubt, the Purchase Price will be deemed to be paid in full once the Company has received three network confirmations of the transaction. The Company reserves the right, in its sole and absolute sole discretion, to modify any of the timelines described herein to account for network congestion or other technical challenges.
- Delivery of Presale Tokens. The Company intends to deliver the quantity of Tokens you purchase in the presale before the start of the public sale (which is planned to begin on June 12th, 2018 - this date may be adjusted). The company reserves the right to deliver the tokens up to two additional weeks after you have provided a complete and accurate Token Receipt Address if necessary to address any unanticipated technical difficulties or delays. For the avoidance of doubt, any such extension will not affect the obligation of the Company and you to make and take delivery, respectively, of Tokens purchased. The Company may also deliver the tokens sooner at their sole discretion.
- Delivery of Public Tokens. The quantity of Tokens you purchase in the public sale will be delivered by the automated Public Sale Smart Contract when an Ether transaction is received by the contract address and confirmed on the Ethereum blockchain. The Company reserves the right to pause the Public Sale Smart Contract, and/or adjust the start date, and/or deliver your tokens up to three weeks after the Public Sale End Date if necessary to address any unanticipated technical difficulties or delays. The Company will not be held responsible if Ether is received from an incompatible Ethereum wallet or Smart Contract account resulting in "lost" tokens that cannot be withdrawn from the account.
Purpose and Use of Tokens in the Ecosystem; Possible Migration of Tokens
- The purpose of the Tokens is to fuel the smart contract automation (the “Services”) within the ecosystem (the “Ecosystem”). Additional information regarding the Ecosystem, the Services and the Company is summarized in Exhibit A of these Terms and further described in the Whitepaper (as amended from time to time) available at https://kayocredits.io (the “Whitepaper”).
- While the Company is developing certain applications and software for use in the Ecosystem, the Company does not operate or control the Ecosystem. The Company is not responsible or liable for the Ecosystem or any third-party uses of the Ecosystem.
- Purchase, ownership, receipt or possession of Tokens carries no rights, express or implied, other than the right to use Tokens as a means to enable usage of and interaction with Services enabled by the Ecosystem, if successfully completed and deployed. In particular, you understand and accept that the Tokens (i) do not represent or confer any ownership right or stake, share, security, or equivalent rights, or any right to receive future revenue shares, intellectual property rights or any other form of participation in or relating to the Ecosystem and/or the Company and/or any of its corporate affiliates, and (iii)only carry rights relating to the provision and receipt of Services in the Ecosystem, subject to limitations and conditions in these Terms. The Tokens are not and are not intended to be a digital currency, security, commodity or any kind of financial instrument.
- The Company reserves the right to migrate the Tokens to another protocol in the future should the Company determine, in its reasonable discretion, that doing so is necessary or useful to the operation of the Ecosystem.
- Unless otherwise stated herein, these Terms only govern the sale by the Company to you, and your purchase of Tokens from Company during the Token Sale.
- Any use of Tokens in connection with providing or receiving Services in the Ecosystem may be governed by other applicable terms and conditions and policies.
Cancellation; Refusal of Purchase Requests
- ll Token purchases from the Company are final, and there shall be no refunds or cancellations, except as may be required by applicable law or regulation or unless expressly agreed in writing by the Company. To the extent permitted by the applicable laws, all risks in relation to any refund of payment made during the Token Sale shall be borne absolutely by you solely.
- The Company reserves the right to refuse or cancel Token Purchase Requests at any time in its sole and absolute discretion.
Important information about the Company’s creation and intended use of the Tokens is provided in Exhibit B to these Terms. By purchasing Tokens, you acknowledge that you have read and understood Exhibit B to these Terms.
Acknowledgment and Assumption of Risks
You acknowledge and agree that there are risks associated with purchasing Tokens, owning Tokens and using Tokens for the provision or receipt of Services in the Ecosystem. The main risks are disclosed and explained in Exhibit C to these Terms. By purchasing Tokens, you acknowledge that you have read and understood Exhibit B to these Terms, and you agree to assume these risks.
The Company may determine, in its sole discretion, that it is necessary to obtain certain information about you in order to comply with applicable laws or regulations in connection with selling Tokens to you. You agree to provide the Company such information promptly upon request. You acknowledge that the Company may refuse to sell Tokens to you until you provide such requested information and the Company has determined that it is permissible to sell you Tokens under applicable laws or regulations.
Any amounts that you pay for Tokens are exclusive of all applicable taxes. You are responsible for determining what, if any, taxes apply to your purchase of 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. The Company is not responsible for withholding, collecting, reporting, or remitting any sales, use, value added, or similar tax arising from your purchase of Tokens.
- Purchaser Representations and Warranties
By sending ETH to purchase Tokens from the Company, you represent and warrant and covenant that:
- you have read and understood these Terms (including all Exhibits);
- YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS ASSOCIATED WITH PURCHASING TOKENS, OWNING TOKENS AND USING TOKENS FOR THE PROVISION OR RECEIPT OF SERVICES IN THE ECOSYSTEM INCLUDING (BUT NOT NECESSARILY LIMITED TO) THE RISKS DESCRIBED IN EXHIBIT C OF THESE TERMS;
- you have a sufficient understanding of technical and business matters (including those that relate to the Services and Ecosystem), cryptographic tokens, token storage mechanisms (such as token wallets), and blockchain technology to understand these Terms and to appreciate the risks and implications of purchasing the Tokens;
- you understand the restrictions and risks associated with the creation of Tokens as set forth herein, and acknowledges and assumes all such risks;
- you have obtained sufficient information about the Tokens, the Services and the Ecosystem to make an informed decision to purchase the Tokens;
- you understand that the Tokens confer only the right to provide and receive Services in the Ecosystem (and potentially contribute to the technical development of the Ecosystem), and confer no other rights of any form with respect to the Ecosystem or the Company, including, but not limited to, any ownership, distribution, redemption, liquidation, proprietary (including all forms of intellectual property), or other financial or legal rights;
- you are purchasing Tokens solely for the purpose of receiving Services, participating in the Ecosystem, and supporting the development, testing, deployment and operation of the Ecosystem, being aware of the commercial risks associated with the Company and the Ecosystem, and you are not purchasing Tokens for any other purposes, including, but not limited to, any investment, speculative or financial purpose;
- your purchase of Tokens complies with applicable laws and regulations in your jurisdiction, including, but not limited to: (i) legal capacity and any other threshold requirements in your jurisdiction for the purchase of the Tokens and entering into contracts with the Company; (ii) any foreign exchange or regulatory restrictions applicable to such purchase; and (iii) any governmental or other consents that may need to be obtained;
- you will comply with any applicable tax obligations in your jurisdiction arising from your purchase of Tokens;
- if you are purchasing Tokens on behalf of any entity, you are authorized to accept these Terms on such entity’s behalf and that 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);
- you are not resident or domiciled in the United States of America/Republic of China or purchasing Tokens from a location in the United States of America/Republic of China;
- you have obtained independent legal advice with respect to same before accepting these Terms, and, in accepting these Terms, you further represent and warrant to the Company that you have been so advised to obtain independent legal advice, and that prior to accepting these Terms you have obtained independent legal advice, or have, in your discretion, knowingly and willingly elected not to do so;
- you are not a citizen or resident of a geographic area in which access to or use of the Services or the acceptance of delivery of the Tokens is prohibited by applicable law, decree, regulation, treaty or administrative act, and if your country of residence or other circumstances change such that the above representations are no longer accurate, 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
- None of the funds being used to purchase the Tokens are to the your knowledge proceeds obtained or derived directly or indirectly as a result of illegal activities, and the funds being used to purchase the Tokens which will be advanced by you under these Terms will not represent proceeds of crime as per the anti-money laundering and countering the financing of terrorism (AML/CFT) and you acknowledge that the Company may in the future be required by law to disclose your name and other information relating to these Terms, on a confidential basis, pursuant to the (AML/CFT), and to the best of the your knowledge, none of the funds to be provided by you to the Company are being tendered on behalf of a person or entity who has not been identified to you, and you will promptly notify the Company if you discover that any of such representations cease to be true, and will promptly provide the Company with all necessary information in connection therewith.
- To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless the Company and its 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 purchase or use of Tokens; (ii) your responsibilities or obligations under these Terms; (iii) your violation of any of these Terms; or (iv) your violation of any rights of any other person or entity.
- The Company reserves the right to exercise sole control over the defense, at your expense, of any claim subject to indemnification under this Section 13. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in any written agreement between you and the Company.
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE SPECIFIED IN WRITING BY THE COMPANY: (i) THE TOKENS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, AND THE COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES AS TO THE TOKENS, INCLUDING,WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; (ii) THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE TOKENS ARE RELIABLE, CURRENT OR ERROR-FREE, MEET YOUR REQUIREMENTS, OR THAT DEFECTS IN THE TOKENS WILL BE CORRECTED; AND (iii) COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE TOKENS OR THE DELIVERY MECHANISM FOR TOKENS 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 14 may not apply to you.
- Limitation of Liability
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (i) 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, 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 SALE OR USE OF THE TOKENS 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 THE 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 THE TOKENS, EXCEED THE AMOUNT YOU PAID TO THE COMPANY FOR THE TOKENS.
- THE LIMITATIONS SET FORTH IN SECTION 15 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL, WILLFUL OR RECKLESS MISCONDUCT OF THE COMPANY.
- 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.
To the fullest extent permitted by applicable law, you release the 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. You expressly waive any rights you may have under any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
- Governing Law and Dispute Resolution
- Governing Law. These Terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the laws of United Kingdom without regard to any portion of its choice of law principles which might provide for application of a different jurisdiction’s law.
- Informal Dispute Resolution. Any dispute (“Dispute”), whether contractual or not, arising out of or in connection with these Terms (including any question regarding its existence, validity or termination) shall first be notified in writing by the aggrieved party (whether you or the Company) to the other party so that you and the Company can attempt in good faith to resolve the Dispute formally. Notice to the Company must be sent by e-mail to the Company at [email protected] Notice to you will be by email to the email address provided to the Company. Your notice must include: (i) your name, postal address, email address and telephone number; (ii) a description in reasonable detail of the nature or basis of the Dispute; and (iii) the specific relief that you are seeking. If you and the Company cannot agree how to resolve the Dispute within 30 days after the date notice is received by the applicable party, Section 17(c) shall apply.
- Arbitration. In the event that the Dispute is not resolved within 30 days after the date of the relevant notice (referred to in Section 17(b)), such Dispute shall be referred to and finally resolved by arbitration administered by the International Arbitration Centre in accordance with the Arbitration Rules of the
International Arbitration Centre (“IAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this paragraph. The seat of the arbitration shall be United Kigdom. The Tribunal shall consist of 1 arbitrator, such arbitrator to be appointed by mutual agreement between the parties, or in the event that no mutual agreement is reached, then in accordance with the IAC Rules. The language of the arbitration shall be English.
- 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.
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 (and the documents referred to herein) constitute the entire agreement between you and the Company relating to your purchase of Tokens from the Company. The Company may assign the Company’s rights and obligations under these Terms. The Company’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The Company 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 the Company’s reasonable control. Purchasing Tokens from the Company does not create any form of partnership, joint venture, or any other similar relationship between you and the Company. Except as otherwise provided in herein, these Terms are intended solely for the benefit of you and the Company 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 the Company provides to you, including these Terms, will be provided in electronic form.