These Terms and Conditions form an agreement between you, or the entity you represent, (You or Purchaser) and Caviar and contain the terms and conditions by which you will purchase cryptographic digital utility tokens (CAV) generated and recorded on the Ethereum blockchain in connection with CAV token generation event (Token Generation). These Terms and Conditions also set out the terms and conditions by which you may access Caviar online web-portal and social networking site (System).
Please read these Terms and Conditions carefully before accessing the Website (defined below) or System or purchasing CAV. You agree that by clicking the “I Accept” button below, you accept and agree to be bound by these Terms and Conditions. If you have any questions regarding these Terms and Conditions, please contact Caviar at ICO@Caviar.io.
1.1 Important information
You acknowledge, understand and agree that:
(a) You are subject to and bound by these Terms and Conditions by virtue of your purchase of CAV.
(b) Purchases of CAV are non-refundable and cannot be cancelled. You may lose all amounts paid.
(c) CAV may have no value outside of the license to use the System.
(d) Caviar reserves the right to refuse or cancel CAV purchase requests at any time in its sole discretion.
(e) Certain persons, including persons who purchase earlier than you, may receive more CAV for the same amount paid.
(f) These Terms and Conditions includes a limitation of liability.
Nothing in these Terms and Conditions shall be deemed to constitute a prospectus of any sort, a solicitation for investment or investment advice nor does it in any way pertain to an offering or a solicitation of an offer to buy any securities in any jurisdiction. Caviar Parties (defined below) expressly disclaim any and all responsibility for any direct or consequential loss or damage of any kind whatsoever arising directly or indirectly from: (i) reliance on any information contained in these Terms and Conditions and the White Paper (defined below), (ii) any error, omission or inaccuracy in any such information or (iii) any action resulting therefrom.
Unless otherwise defined in these Terms and Conditions, capitalised terms will have the meanings given to them in the written Caviar White Paper, as it may be amended from time to time (White Paper).
2.1 Binding agreement
These Terms and Conditions shall be effective and binding on all parties upon you clicking on the “I Accept” button below. By sending Ether, or other cryptocurrencies, to Caviar’s digital wallet address in accordance with the Token Purchase Instructions (as defined below), you agree to acquire CAV at the relevant purchase price per CAV set out in the White Paper in accordance with the terms and conditions herein.
2.2 White Paper
Caviar has prepared the White Paper, which is available at here, describing matters relating to the System and CAV. The White Paper is hereby incorporated by reference. You acknowledge that you have read and understand the White Paper and its contents. If there is any inconsistency between the terms of the White Paper and these Terms and Conditions, these Terms and Conditions shall govern.
3 CAV purchase process
Your offer to purchase CAV will be considered as duly accepted upon the completion of the following:
(a) You transfer cryptocurrency to Caviar’s receiving digital wallet address in accordance with CAV purchase procedures set out on the Website; and
(b) The Token Generation Closing Date occurs.
3.2 Token Generation Period
The sale of CAV shall,
(a) commence on the earlier of
(i) the date and time CAV are offered for pre-sale by Caviar to registered and approved early purchasers (Pre-Sale Date); or
(ii) the date and time CAV will be formally offered for sale by Caviar to general purchasers (Token Generation Date); and
(b) conclude on the earlier of the date and time that Caviar confirms the closing of sale of CAV by providing notice on the Website (Token Generation Closing Date).
(collectively, Token Generation Period)
Caviar reserves the right to change the sale dates or extend the sale duration for any reason.
3.3 Registration of account
In order to access and use the System, you must first create an account with Caviar by clicking the “I Accept” button below. By creating an account with Caviar you are agreeing to: (a) provide accurate, current and complete information; (b) maintain and promptly update your account information to keep it accurate, complete, and current; (c) maintain the security and confidentiality of your login credentials and restrict access to your account and (d) take responsibility for all activities that occur under your account and accept all risks of unauthorized access.
3.4 Token purchase instructions
Caviar will provide specific procedures and instructions on the manner in which you may purchase CAV (Token Purchase Instructions). The Token Purchase Instructions will set out the applicable Gas limit and the field you should insert in the sending data field. By accepting these Terms and Conditions, you acknowledge and agree and have no objection to the Token Purchase Instructions. Failure to follow the exact procedures described in the Token Purchase Instructions may result in the incorrect transmission and/or the total loss of your CAV. The receipt or purchase of CAV through any other means other than the means described in the Token Purchase Instructions are not sanctioned or agreed to in any way by Caviar.
3.5 CAV distribution and allocation
Caviar intends to allocate and distribute CAV in accordance with the terms of the White Paper which includes details regarding the timing and tranches of distribution of CAV, pricing of CAV and the amount of CAV that will be distributed. You understand and consent to the participation of Caviar’s past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors and service providers in the purchase of CAV, including people who may work on the development and implementation of the System or who may work for businesses that Caviar may establish with a portion of the proceeds from the Token Generation.
4 Rejection and refund policy
Caviar may, in its sole discretion, not complete the Token Generation, and in such event all cryptocurrencies and fiat submitted by you will be returned by Caviar promptly following the Token Generation Closing Date. Other than the circumstances set out directly above, the purchase of CAV are non-refundable. All cryptocurrencies submitted by you will be returned to the digital wallet address used to originally send such amounts.
Caviar has the right to reject your offer to purchase CAV, in whole or in part, without giving a reason for that rejection and in those circumstances, the cryptocurrencies and fiat submitted by you will be returned to you in manner described above.
5 Representations and warranties
You represent, warrant and acknowledge to Caviar as follows:
5.1 Terms and Conditions and White Paper
You have received and considered these Terms and Conditions and the White Paper. You are not relying on any representations or statements made or information supplied by or on behalf of Caviar other than information contained in these Terms and Conditions and the White Paper.
(a) You are aware of the risks involved in purchasing CAV, including the inherent risk of the potential to lose all amounts paid for CAV and the risks set out in Schedule 1.
(b) You have significant knowledge and experience in business and financial matters, including a sufficient understanding of functionality, usage, storage, transmission mechanisms and intricacies associated with cryptographic tokens, such as Bitcoin and Ether, as well as blockchain-based software systems generally, to be able to evaluate the risks and merits of your purchase of CAV, and you are able to bear the risks thereof, including loss of all amounts paid, loss of CAV and liability to Caviar and others for your acts and omissions, including those acts and omissions which constitute breach of these Terms and Conditions, negligence, fraud or willful misconduct. You have obtained sufficient information in order to make an informed decision to purchase CAV.
(c) You take sole responsibility for any restrictions and risks associated with receiving and holding CAV, including but not limited to these set out in Schedule 1. See Legal Disclaimers.
You have all requisite power and authority to execute and deliver these Terms and Conditions, to use the underlying software application and blockchain protocol (i.e. the Ethereum blockchain) which creates the mechanism of creation and distribution of CAV (Token Smart Contract) and purchase CAV, and to carry out and perform your obligations under these Terms and Conditions.
(a) If an individual, you are at least 18 years old and of sufficient legal age and capacity to purchase CAV.
(b) If a legal person, Purchaser is duly organized, validly existing and in good standing under the laws of its domiciliary jurisdiction and each jurisdiction where it conducts business.
5.4 Eligible Purchaser
You are an Eligible Purchaser as defined in Schedule 2 and are not acting on behalf of, or for the benefit of, nor do you intend transferring any CAV you may purchase to, any person who is not an Eligible Purchaser.
5.5 Restrictions on transfer
You will not transfer directly or indirectly any CAV or any interest therein without the consent of the directors of Caviar and further, you shall not transfer directly or indirectly transfer any of your CAV or any interest therein unless the proposed transferee has made the same representations and warranties as set out herein and is an Eligible Purchaser as defined in Schedule 2.
5.6 Restricted territories
You did not acquire and will not transfer any CAV within United States of America and Cayman Islands (each, a Restricted Territory). You are not aware of and are in no way relying on, and did not become aware of the sale of CAV through or as a result of, from or in any Restricted Territory: any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the internet, in connection with the offering and sale of CAV and you are not purchasing CAV and did not become aware of the offering of CAV through or as a result of, in any Restricted Territory, any seminar or meeting to which you were invited by, or any solicitation of a subscription by, a person not previously known to you in connection with investments in securities generally.
Anti-money laundering and regulatory requirements
The funds, including any fiat, virtual currency or cryptocurrency, you use to purchase CAV are not derived from or related to any unlawful activities, including but not limited to money laundering or terrorist financing, and you will not use CAV to finance, engage in, or otherwise support any unlawful activities. All payments by you under these Terms and Conditions will be made only in your name, from a digital wallet or bank account 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.
5.7 No conflict
Purchaser is legally permitted to hold and make use of CAV in its relevant jurisdiction. The execution, delivery and performance of these Terms and Conditions 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 Purchaser’s organizational documents, if applicable;
(b) any provision of any judgment, decree or order to which Purchaser 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 Purchaser is a party or by which it is bound; or
(d) any laws, regulations or rules applicable to Purchaser.
5.8 No consents or approvals
The execution and delivery of, and performance under, these Terms and Conditions require no approval or other action from any governmental authority or person other than Purchaser.
5.9 Purchaser’ status
Purchaser is not subject to any of the disqualifying events listed in Rule 506(d)(1) of Regulation D under the Securities Act of 1933 (Purchaser Event), and there is no proceeding or investigation pending or, to the knowledge of Purchaser, threatened by any governmental authority, that would reasonably be expected to become the basis for a Purchaser Event. If Purchaser is a legal entity, Purchaser makes the same representations with respect to its directors (or equivalent) and senior executive officers, and its affiliates and their respective directors (or equivalent) and senior executive officers.
The purchase and receipt of CAV may have tax consequences for you, you are solely responsible for your compliance with your tax obligations and Caviar bears no liability or responsibility with respect to any tax consequences to you.
5.11 No advice
Caviar has not provided you with any advice regarding whether purchasing CAV is a suitable investment for you.
5.12 Purchaser to notify of changes
You undertake to notify Caviar immediately if:
(a) you becomes aware that you or any person for whom you hold CAV for has ceased to be an Eligible Purchaser; or
(b) any of the representations, declarations or statements in these Terms and Conditions are no longer accurate and complete in all respects.
5.13 Substantiate representations and warranties
You undertake to:
(a) provide to Caviar these representations, warranties, acknowledgements, undertakings and agreements at any time Caviar requests; and
(b) provide on request such certifications, documents or other evidence as Caviar may reasonably require to substantiate these representations, warranties, acknowledgements, undertakings and agreements.
6 Anti-money laundering
6.1 The Purchaser represents and warrants to Caviar that:
(a) it is not a Prohibited Person (as defined at the end of Schedule 2);
(b) no person or entity that controls, is controlled by or under common control with, the Purchaser a Prohibited Person;
(c) neither the Purchaser, nor any person having a direct or indirect beneficial interest in the Purchaser or CAV being acquired, 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; and
(d) to the extent the Purchaser has any Beneficial Owners:
(i) it has carried out thorough due diligence to establish the identities of those Beneficial Owners;
(ii) based on that due diligence, the Purchaser reasonably believes that no Beneficial Owner is a Prohibited Person;
(iii) it holds the evidence of those identities and status and will maintain all of that evidence for at least five years from the date of the Purchaser’s complete redemption from Caviar; and
(iv) it will make available that evidence and any additional evidence that Caviar may require upon request in accordance with applicable regulations.
6.2 The Purchaser acknowledges to Caviar that If any of the representations and warranties in the preceding clause ceases to be true or if Caviar no longer reasonably believes that it has satisfactory evidence as to their truth, despite any other agreement to the contrary, Caviar may, in accordance with applicable regulations, be obligated to do one or more of the following:
(a) to take certain actions relating to the Purchaser’s holding of CAVs;
(b) to report that action; and
(c) to disclose the Purchaser’s identity to OFAC or other authority.
6.3 If Caviar is required to take any of the actions referred to in the preceding clause, the Purchaser understands, and agrees with Caviar, that it has no claim against Caviar, and its affiliates, directors, members, partners, shareholders, officers, employees and agents for any of damages as a result of any of the those actions.
6.4 To the extent that the foregoing release enures for the benefit of any director, officer, employee, delegate, agent or subcontractor (whether existing or in the future) of Caviar, Investment Manager or the Administrator, Purchaser acknowledges, and by accepting this application Caviar agrees, that Caviar holds the benefit of release on trust for that person.
6.5 In order to comply with the anti-money laundering regulations applicable to Caviar, the Purchaser acknowledges to Caviar that CAVs will not be issued until Caviar is satisfied that evidence regarding the source of the purchase amounts and the identity of the Purchaser is satisfactory.
6.6 If, as a result of any information or other matter which comes to his attention, any person resident in the Cayman Islands knows or suspects or has reasonable grounds for knowing or suspecting that another person is engaged in criminal conduct or is involved with terrorism or terrorist property and the information for that knowledge or suspicion came to their attention in the course of business in the regulated sector, or other trade, profession, business or employment, the person will be required to report such knowledge or suspicion to: (i) the Financial Reporting Authority of the Cayman Islands, pursuant to the Proceeds of Crime Law (Revised) of the Cayman Islands if the disclosure relates to criminal conduct or money laundering; or (ii) a police constable not below the rank of inspector, or the Financial Reporting Authority, pursuant to the Terrorism Law (Revised) of the Cayman Islands, if the disclosure relates to involvement with terrorism or terrorist financing and property. Such a report shall not be treated as a breach of confidence or of any restriction upon the disclosure of information imposed by any enactment or otherwise.
6.7 By agreeing to these Terms and Conditions, the Purchaser consents to the disclosure by or on behalf of Caviar of any information about the Purchaser to regulators and others upon request in connection with money laundering and similar matters, both in the Cayman Islands and in other jurisdictions.
7 Tax Information Exchange Obligations
7.1 You understand that CAV do not represent nor do they entitle the holder, in any way whatever, to a:
(a) Depository Account;
(b) Custodial Account;
(c) Cash Value Insurance Contract;
(d) Annuity Contract; or
(e) Equity and/or Debt Interest in Caviar;
as such terms are defined in the Tax Information Authority (International Tax Compliance) (Common Reporting Standard) Regulations, 2015.
7.2 You acknowledge that Caviar may be subject to certain obligations (the Tax Information Exchange Obligations) to gather and disclose to the competent authorities information relating to purchasers of CAV under: (i) the United States Foreign Account Tax Compliance Act provisions enacted under the United States Hiring Incentives to Restore Employment Act and any guidance, or regulations relating thereto (FATCA); (ii) any other legislation, regulations or guidance enacted in any jurisdiction which seeks to implement similar tax reporting, tax information exchange, reporting and/or withholding tax regimes (including the OECD Common Reporting Standard on the automatic exchange of financial account information); (iii) any intergovernmental Application between the Cayman Islands (or any Cayman Islands government body) and the U.S., the U.K. or any other jurisdiction (including any government bodies in any other such jurisdiction), entered into, in order to comply with, facilitate, supplement or implement the legislation, regulations or guidance described in (i) and (ii), including the OECD Multilateral Competent Authority Application; and (iv) any legislation, regulations or guidance in the Cayman Islands that give effect to the foregoing.
7.3 You shall execute properly and provide to Caviar in a timely manner any documentation or other information that Caviar or its agents may request in writing from time to time in connection with the Tax Information Obligations. You waive any provision under the laws and regulations of any jurisdiction that would, absent a waiver, prevent or inhibit Caviar’s compliance with applicable law as described in this paragraph, including but not limited to by preventing either (i) you from providing any requested information or documentation, or (ii) the disclosure by Caviar and its agents of the provided information or documentation to applicable regulatory authorities.
7.4 Without limitation, you shall provide any documentation or other information regarding your and your beneficial owners requested by Caviar or its agents in connection with the Tax Information Exchange Obligations.
7.5 If you provide information and/or documentation that is in anyway misleading, or if you fail to provide Caviar or its agents or delegates with the information and documentation that has been requested, (whether or not such action or inaction leads to compliance failures by Caviar, or a risk of Caviar or its token holders being subject to withholding tax or other penalties), Caviar reserves the right to take any action and/or pursue all remedies at Caviar’s disposal. Further, you shall have no claim against Caviar, or its agents or delegates, for any form of damages or liability as a result of actions taken or remedies pursued by or on behalf of Caviar in order to comply with the Tax Information Exchange Obligations.
7.6 In connection with the foregoing, you hereby indemnify each Caviar Party (each an Indemnified Party) and hold them harmless from and against any liability, action, proceeding, claim, demand, costs, damages, expenses (including legal expenses) penalties or taxes whatsoever which an Indemnified Party may suffer or incur as a result of any misleading or inaccurate information or documentation provided to Caviar or any action or inaction of you. This indemnification shall survive your/the death or disposition of CAV.
8 Rights created
Caviar does not guarantee and is not representing in any way that purchasers of CAV have any rights, uses, purpose, attributes, functionalities or features. The purchase of CAV does not provide purchasers with rights of any form with respect to Caviar 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; CAV does not represent a not to Caviar and does not provide purchasers of CAV with any ownership or other interest in Caviar.
8.2 Intellectual property
Caviar retains all right, title and interest in all of Caviar’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. You may not use any of Caviar’s intellectual property for any reason without Caviar’s prior written consent.
9.1 Appropriate measures
You will implement reasonable and appropriate measures designed to secure access to: (a) any device associated with you and/or utilised in connection with your purchase of CAV, (b) private keys to your wallet or account and (c) email address, account and your username, password and any other login or identifying credentials.
9.2 Access to your account
In the event that you are no longer in possession of your private keys or any device associated with your account or are not able to provide your login or identifying credentials, you may lose all of your CAV and/or access to your account, and Caviar may, in its sole discretion, grant access to your account to any party providing additional credentials to Caviar. Caviar explicitly reserves the right to determine the additional credentials required, which may include, without limitation, a sworn, notarized statement of identity.
9.3 Security breach
You will promptly notify Caviar if you discover or otherwise suspect any security breaches related to your account.
10 Information and personal data
10.2 Request data
Upon Caviar’s request, you will immediately provide to Caviar information and documents that Caviar, 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. You consent to Caviar disclosing such information and documents in order to comply with applicable laws, regulations, rules or agreements. You acknowledge that Caviar may refuse to distribute CAV to you and or provide access to your account until such requested information and/or documents is provided. Caviar reserves its right to request further information and documentation at any time in its sole discretion. Caviar may refuse you access should it have doubts as to validity, authenticity and genuineness of the documents, provided by you. You hereby release Caviar from all claims for any loss that it may suffer as a result of that action, and it hereby waives all such claims. You indemnify Caviar, against all loss arising out of, or in connection with, a failure to process this application.
10.3 Information provided during Token Generation Period
You agree that Caviar will process all personal data you provide or make available during the Token Generation Period, including your:
(a) name and surname;
(b) country of residence/nationality;
(c) scanned government issued ID (which must be valid for at least 6 months as of uploading date);
(d) date of birth (if not available on the ID document);
(e) proof of residency, which will be provided with any of the following documents:
(i) Bank statement of your current account;
(ii) Credit card statement;
(iii) Loan-related documents from a bank;
(iv) Utility bill;
(v) Broadband home internet bill, landline phone bill;
(vi) Tax return, council tax bill;
(vii) Government-issued certificate of residency;
(f) mobile phone number; and
(g) photographs of you (which you must provide holding your ID document next to your face, with your head and shoulders visible.)
10.4 Information provided during operation of Website
In addition to the information set out in paragraph 10.2, Caviar collects information from running its Website, provided thereto, and processes such information. When you visit the Website, Caviar collects information sent by your computer, mobile phone, or other access device. This information may include your IP address, device information including, but not limited to, identifier, name, and type, operating system, mobile network information and standard web log information, such as your browser type, and the pages you accessed on our website. When you use a location-enabled device with Caviar’s website, we may collect geographical location data or use various means to determine the location, such as sensor data from your device that may, for instance, provide data on nearby cell towers and wi-fi access spots. When you access the Website, Caviar or its applicable third party service providers on behalf of Caviar may place small data files called cookies on your computer or other device. Caviar uses these technologies to recognize you as a user; customize the Website and advertising; measure promotional effectiveness and collect information about your computer or other access device to mitigate risk, help prevent fraud, and promote trust and safety.
10.5 Processing of personal data
Processing of personal data is any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Caviar may share your personal data with third parties in order to complete the Token Generation reveal or suppress fraud or fix technical bugs or eliminate security problems. Caviar will disclose your personal data to its affiliates, subsidiaries and third-party service providers in so far as is necessary to complete the Token Generation and fulfil the purposes set out below. The processing of your personal information shall otherwise be in accordance with the terms of Caviar’s privacy policies in effect from time to time.
10.6 Purpose of processing personal data
You agree that Caviar will process your personal data to market, conduct and perform technical analysis on the completion of the Token Generation. Processing of your personal data will also be carried out in order to: (a) fulfil Caviar’s obligations under these Terms and Conditions and under applicable law (including to comply with applicable anti-money laundering requirements); (b) complete your registration; (c) provide technical support and (d) to assist Caviar in the development of the System and the performance of the activities set out in the White Paper.
You acknowledge and agree that you may receive commercial electronic messages and advertising materials from Caviar or third parties by order of Caviar on the e-mail address and the mobile phone number that you provided to Caviar throughout the use of the Website. At any time you will be entitled to withdraw your consent to receive such materials by following the instructions provided in materials.
11 Limitation of Liability; Indemnification
11.1 Limitation of Liability
To the fullest extent permitted by applicable law, Purchaser disclaims any right or cause of action against Caviar of any kind in any jurisdiction that would give rise to any Damages whatsoever, on the part of Caviar. Caviar shall not be liable to Purchaser for any type of damages, whether direct, indirect, incidental, special, punitive, consequential or exemplary (including damages for lost profits, goodwill, use or data), even if and notwithstanding the extent to which Caviar has been advised of the possibility of such damages. Purchaser agrees not to seek any refund, compensation or reimbursement from Caviar, regardless of the reason, and regardless of whether the reason is identified in these Terms and Conditions.
In no circumstances will the aggregate liability of Caviar, whether in contract, warrant, tort or other theory, for damages of any kind under these Terms and Conditions exceed the amount received by Caviar from Purchaser.
11.3 Force Majeure
The Token Generation and the performance of Caviar’s activities set out in White Paper development roadmap may be interrupted, suspended or delayed due to force majeure events. For the purposes of these Terms and Conditions, a force majeure event shall mean any extraordinary event or circumstances which could not be prevented by Caviar and shall include: hardware, software or other utility failures, changes in market forces or technology, software or smart contract bugs, changes in blockchain-related protocols, acts of nature, wars, armed conflicts, mass civil disorders, industrial actions, epidemics, lockouts, slowdowns, prolonged shortage or other failures of energy supplies or communication service, acts of municipal, state or federal governmental agencies or other circumstances beyond Caviar’s control, which were not in existence at the time of Token Generation. Purchaser understands and agrees that Caviar shall not be liable and disclaims all liability to Purchaser in connection with an force majeure event.
To the fullest extent permitted by applicable law, Purchaser releases Caviar from responsibility, liability, claims, demands, and/or damages of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between Purchaser and the acts or omissions of third parties.
(a) To the fullest extent permitted by applicable law, Purchaser will indemnify, defend and hold harmless and reimburse Caviar and Caviar LLP and each of their respective past, present and future partners, employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (Caviar Parties), from and against any and all actions, proceedings, claims, damages, demands and actions (including without limitation fees and expenses of counsel), incurred by such parties arising from or relating to: (i) Purchaser’s purchase or use of CAV; (ii) Purchaser’s responsibilities or obligations under these Terms and Conditions; (iii) Purchaser’s breach of or violation of these Terms and Conditions; (iv) any inaccuracy in any representation or warranty of Purchaser; (v) Purchaser’s violation of any rights of any other person or entity; and/or (vi) any act or omission of Purchaser that is negligent, unlawful or constitutes willful misconduct.
(b) Caviar reserves the right to exercise sole control over the defense, at Purchaser’s expense, of any claim subject to indemnification under this Section. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between Purchaser and Caviar.
(c) Any Caviar Party or other identifiable person who is not a party to these Terms and Conditions may enforce any rights granted to it pursuant to these Terms and Conditions in its own right as if it was a party to these Terms and Conditions. Except as expressly provided in the foregoing sentence, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Law, 2014 (as amended) to enforce any term to these Terms and Conditions. Notwithstanding any term of to these Terms and Conditions, the consent of or notice to any person who is not a party to these Terms and Conditions shall not be required for any termination, rescission or agreement to any variation, waiver, assignment, novation, release or settlement under to these Terms and Conditions at any time.
In these Terms and Conditions, unless the contrary intention appears:
(a) a reference to a statute includes references to that statute as amended or re-enacted and to other statutes that modify its application as well as references to any subordinate legislation made or to be made under that statute;
(b) a reference to the singular includes the plural and vice versa;
(c) a reference to a gender includes the other genders;
(d) a reference to persons includes individuals, companies, firms, partnerships, government bodies or agencies and corporations sole and aggregate;
(e) obligations entered into by more than one person in these Terms and Conditions bind all of those persons jointly and each of them severally; and
(f) the headings do not affect the interpretation of these Terms and Conditions.
12.2 Multiple Purchaser
If there is more than one Purchaser, then all representations, warranties, acknowledgements, undertakings and agreements by the Purchaser binds those persons jointly and each of them individually, and all benefits in favour of the Purchaser benefits those persons jointly and each of them individually.
12.3 Governing law and venue
These Terms and Conditions shall be governed in all respects, including as to validity, interpretation and effect, by the laws of the Cayman Islands, 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. All disputes or claims arising out of or in connection with these Terms and Conditions, including disputes relating to its validity, breach, termination or nullity shall be finally settled under by a court in the Cayman Islands.
12.4 No Class actions
Any dispute arising out of or related to these Terms and Conditions is personal to Purchaser and Caviar 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.
You shall not assign these Terms and Conditions without the prior written consent of Caviar. Any assignment or transfer in violation of this Section will be void. Caviar may assign these Terms and Conditions to an affiliated entity at any time without your prior consent. Subject to the foregoing, these Terms and Conditions, 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.
If any provision of these Terms and Conditions 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.
12.7 No waivers
The failure by Caviar to exercise or enforce any right or provision of these Terms and Conditions will not constitute a present or future waiver of such right or provision nor limit Caviar’s right to enforce such right or provision at a later time. All waivers by Caviar must be unequivocal and in writing to be effective.
12.8 No partnership; No agency; No third-party beneficiaries
Nothing in these Terms and Conditions and no action taken by the parties shall constitute, or be deemed to constitute, a partnership, association, joint venture or other co-operative entity between the parties. Nothing in these Terms and Conditions and no action taken by the parities pursuant to these Terms and Conditions shall constitute, or be deemed to constitute, either party to be an agent of the other party for any purpose. No party has, pursuant to these Terms and Conditions, any authority or power to bind or to contract in the name of the other party. These Terms and Conditions do not create any third party beneficiary rights in any person.
12.9 Electronic Communications
You agree and acknowledge that all agreements, notices, disclosures and other communications that Caviar provides pursuant to these Terms and Conditions or in connection with or related to your purchase of CAV, may be provided by Caviar, in its sole discretion, to you, in electronic form.
Only English versions of the White Paper and Caviar’s communications shall be considered official. The English version shall prevail in case of differences in translation.
- – Risks
The acquisition of Caviar Tokens involves a high degree of risk. Before acquiring Caviar Tokens, it is recommended that each Purchaser conduct its own careful examination of all relevant information and risks about the Caviar, Caviar Platform and Caviar Tokens and, specifically, the disclosures and risk factors set out below. If any of the following risks actually occurs, the Caviar Platform, Caviar Token and Purchaser’s Caviar Tokens may be materially and adversely affected, including the Purchaser’s Caviar Token being rendered worthless or unusable.
Risks relating to highly speculative prices
The valuation of cryptocurrency in a secondary market is usually not transparent, and highly speculative. The Caviar Tokens do not hold any ownership rights to the Caviar’s assets and, therefore, are not backed by any tangible asset. The value Caviar Tokens in the secondary market, any, may fluctuate greatly within a short period of time. There is a high risk that a Purchaser could lose its entire contribution amount. In the worst-case scenario, Caviar Tokens could be rendered worthless.
Risk of theft and hacking
Token generation events and initial coin offerings are often targeted by hackers and bad actors. Hackers may attempt to interfere with the Purchaser’s digital wallet, whether located on the Caviar Platform or otherwise, (Purchaser’s Wallet), the Caviar Smart Contract or the availability of Caviar Tokens in any number of ways, including without limitation denial of service attacks, Sybil attacks, spoofing, smurfing, malware attacks, or consensus-based attacks. Any such attack may result in theft of Purchaser’s Caviar Tokens.
Caviar Tokens purchased by Purchaser may be held by Purchaser in Purchaser’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 Purchaser’s digital wallet or vault storing Caviar Tokens will result in loss of such Caviar Tokens. 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 Purchaser uses, may be able to misappropriate Purchaser’s Caviar Tokens. Caviar is not responsible for any such losses.
Failure to map a public key to Purchaser’s Wallet
Failure of the Purchaser to map a public key to such Purchaser’s Wallet may result in third-parties being unable to recognize buyer’s Caviar Token balance on the Ethereum blockchain when and if they configure the initial balances of a new blockchain based upon the Caviar Platform.
Risk of incompatible wallet service
The wallet or wallet service provider used for the acquisition and storage of the Caviar Tokens has to be technically compatible with the Caviar Tokens. The failure to assure this may result in the Purchaser not being able to gain access to its Caviar Tokens.
Risk of weaknesses or exploitable breakthroughs in the field of cryptography
Advances in cryptography, or other technical advances such as the development of quantum computers, could present risks to cryptocurrencies, Ethereum and Caviar Tokens, which could result in the theft or loss of Caviar Tokens.
Internet transmission risks
There are risks associated with using Caviar Tokens including, but not limited to, the failure of hardware, software, and internet connections. The Caviar shall not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Caviar Platform and Caviar Tokens, howsoever caused. Transactions in cryptocurrency may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Cryptocurrency transactions are deemed to be made when recorded on a public ledger, which is not necessarily the date or time when the transaction is initiated.
No guarantee that Caviar Smart Contract will be developed
Purchaser acknowledges, understands and agrees that Purchaser should not expect and there is no guarantee or representation or warranty by Caviar that: (a) the Caviar Platform will ever be adopted; (b) the Caviar Platform will be adopted as developed by Caviar and not in a different or modified form; (c) a blockchain utilizing or adopting the Caviar will ever be launched; and (d) a blockchain will ever be launched with or without changes to the Caviar Platform and with or without a distribution matching the fixed balance of Initial Tokens (as defined below). Furthermore, the Tokens initially generated upon the Token Launch (Initial Tokens) will not have any functionality or rights on the Caviar Platform and holding Initial Tokens is not a guarantee, representation or warranty that the holder will be able to use the Caviar Platform, or receive any tokens utilized on the Caviar Platform, even if the Caviar Platform is launched and the Caviar Smart Contract is adopted, of which there is no guarantee, representation or warranty made by Caviar.
Risks associated with the Caviar Smart Contract and associated software and/or infrastructure.
The Caviar Smart Contract is based on the Ethereum blockchain. As such, any malfunction, unintended function or unexpected functioning of the Ethereum protocol may cause Caviar Tokens and/or the Caviar Platform to malfunction or function in an unexpected or unintended manner.
The Ethereum blockchain rests on open source software, and accordingly there is the risk that the Caviar Smart Contract may contain intentional or unintentional bugs or weaknesses which may negatively affect Caviar Tokens or result in the loss or theft of Caviar Tokens or the loss of ability to access or control Caviar Tokens. In the event of such a software bug or weakness, there may be no remedy and Caviar Token holders are not guaranteed any remedy, refund or compensation.
On the Ethereum blockchain timing of block production is determined by proof of work so block production can occur at random times. For example, Ether transferred to Caviar’s recipient digital wallet address in the final seconds of a distribution period may not get included for that period. Purchaser acknowledges and understands that the Ethereum blockchain may not include the Purchaser’s transaction at the time Purchaser expects and Purchaser may not receive Caviar Tokens the same day Purchaser sends Ether. 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. Purchaser acknowledges and understands that Ethereum block producers may not include Purchaser’s transaction when Purchaser wants or Purchaser’s transaction may not be included at all.
Ether, the native unit of account of the Ethereum may itself lose value in ways similar to Caviar Tokens, and also other ways. More information about Ethereum is available at http://www.ethereum.org
Irreversible nature of blockchain transactions
Transactions involving Caviar Tokens that have been verified, and thus recorded as a block on the blockchain, generally cannot be undone. Even if the transaction turns out to have been in error, or due to theft of a user’s Caviar Token, the transaction is not reversible. Further, at this time, there is no governmental, regulatory, investigative, or prosecutorial authority or mechanism through which to bring an action or complaint regarding missing or stolen cryptocurrencies and digital tokens. Consequently, the Caviar may be unable to replace missing Caviar Tokens or seek reimbursement for any erroneous transfer or theft of Caviar Tokens.
Amendments to protocol
The development team and administrators of the source code for Ethereum blockchain or the Caviar Smart Contract could propose amendments to such network’s protocols and software that, if accepted and authorized, or not accepted, by the network community, could adversely affect the supply, security, value, or market share of Caviar Tokens.
Risk of mining attacks
As with other decentralized cryptocurrencies, Ethereum blockchain, which is used for the Caviar Tokens, is susceptible to mining attacks, including but not limited to double-spend attacks, majority mining power attacks, “selfish-mining” attacks, and race condition attacks. Any successful attacks present a risk to the Caviar Tokens, expected proper execution and sequencing of Caviar Tokens, and expected proper execution and sequencing of Ethereum contract computations in general. Despite the efforts of the Caviar and Ethereum Foundation, the risk of known or novel mining attacks exists. Mining attacks, as described above, may also target other blockchain networks, with which the Caviar Tokens interact with and consequently the Caviar Tokens may be impacted also in that way to the extent described above.
Schedule 2 – Eligible purchaser
From time to time, Caviar’s directors may amend the criteria for determining who is an Eligible Purchaser for the purpose of purchasing or receiving CAV.
Initially, all Purchasers are Eligible Purchaser except the following:
- a Purchaser whose acquisition of CAV would cause a breach of the law or requirements of any country or governmental authority, including anti-money laundering regulations or conventions;
- a Purchaser who is a member of the public in the Cayman Islands;
- a Purchaser on behalf of terrorists or terrorist organisations, including those persons or entities that are included on the List of Specially Designated Nationals and Blocked Persons maintained by the US Treasury Department’s Office of Foreign Asset Control (OFAC);
- a Purchaser who acts, directly or indirectly, for a senior foreign political figure, any member of a senior foreign political figure’s immediate family or any close associate of a senior foreign political figure unless Caviar, after being specifically notified by the Purchaser in writing that it is such a person, conducts further due diligence, and determines that the investment is permitted;
- a Purchaser or an entity acting as trustee, agent, representative or nominee for a Purchaser that is a foreign shell bank;
- a Purchaser who makes representations or warranties in the Terms and Conditions that are not true when given or have ceased to be true;
- a Purchaser whose circumstances are such that, in the opinion of Caviar’s directors, its continued ownership of CAV would cause an undue risk of adverse tax or other consequences to Caviar. Those circumstances include those that affect that Purchaser directly or indirectly, whether taken alone or in conjunction with another person or persons, connected or not, or any other circumstance that appears to the directors to be relevant;
- a Purchaser, or a Purchaser that is an entity acting as trustee, agent, representative or nominee for a person, who is a United States person (within the meaning of Rule 902 of Regulation S of the United States Securities Act, as amended). The Purchaser must notify Caviar immediately if the Purchaser becomes a United States person or becomes aware that any person for whom the Purchaser holds shares as trustee, agent, representative or nominee has become a United States Despite this, if Caviar chooses to comply fully with applicable U.S. laws and regulations, Caviar may arrange for the private placement of CAV to Purchasers who are in the United States or who are U.S. Persons if, among other things, each such Purchaser delivers to Caviar a completed form of these Terms and Conditions that contains certain representations, warranties and agreements in accordance with applicable U.S. laws and regulations before acquiring any CAV;
All persons who do come within any of these categories are known, collectively, as Prohibited Persons.
This offering of CAV tokens is being conducted outside of the United States to non-U.S. persons in reliance on Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), and as a result, U.S. persons within the meaning of such regulation are prohibited from purchasing CAV tokens in the offering. Prior to the release of the CAV token to you, you must confirm, and provide supporting identifying documentation to establish, that you are not a U.S. person. By accepting the CAV tokens, you acknowledge and confirm that the CAV tokens have not been registered under the Securities Act and prior to the one year anniversary of the release of the tokens may not be offered or sold by you in the United States or to U.S. persons. You also acknowledge that the CAV tokens are “restricted securities” within the meaning of Rule 144 under the Securities Act and that that you will not undertake any resale of the CAV tokens within the United States or to any U.S. person unless such resale is made pursuant to an exemption from registration under the Securities Act. You also acknowledge that any listing of the CAV tokens by you on any exchange operating outside the United States that allows unrestricted access by U.S. persons is not authorized by Caviar.
For these purposes, Beneficial Owners include, but are not be limited to the following: (i) shareholders of a corporation; (ii) partners of a partnership; (iii) members of a limited liability company; (iv) investors in a fund of funds; (v) the grantor of a revocable or grantor trust; (vi) the beneficiaries of an irrevocable trust; (vii) the individual who established an IRA; (viii) the participant in a self-directed pension plan; (ix) the sponsor of any other pension plan; and (x) any person represented by the Purchaser in an agency, representative, intermediary, nominee or similar capacity. If the Beneficial Owner is itself an entity, the information and representations set forth in this Application Form must also be given with respect to its individual Beneficial Owners. If the Purchaser is a publicly-traded company, it need not conduct due diligence as to its Beneficial Owners.
Senior foreign political figure means a senior official in the executive, legislative, administrative, military or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party or a senior executive of a foreign government-owned corporation. In addition a senior foreign political figure includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior foreign political figure. The immediate family of a senior foreign political figure typically includes the political figure’s parents, siblings, spouse, children and in-laws. A close associate of a senior foreign political figure is a person who is widely and publicly known internationally to maintain an unusually close relationship with the senior foreign political figure, and includes a person who is in a position to conduct substantial domestic and international financial transactions on behalf of the senior foreign political figure.
Foreign shell bank means a foreign bank without a physical presence in any country, but does not include a regulated affiliate.
“U.S. Person” means:
(i) any natural person resident in the United States;
(ii) any partnership or corporation organized or incorporated under the laws of the United States;
(iii) any estate of which any executor or administrator is a U.S. Person;
(iv) any trust of which any trustee is a U.S. Person;
(v) any agency or branch of a non-U.S. entity located in the United States;
(vi) any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. Person;
(vii) any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States; or
(viii) any partnership or corporation if:
(A) organized or incorporated under the laws of any non-U.S. jurisdiction; and
(B) formed by a U.S. Person principally for the purpose of investing in securities not registered under the Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) under the Act) who are not natural persons, estates or trusts.