Last updated: 31.10.2017
This Gemera Tokens Purchase Agreement (hereinafter “Agreement”) fixes essential terms of usage, purchase, and distribution of Gemera Tokens (hereinafter “Tokens”). It is concluded between Company on the one hand and Buyer on the other (hereinafter “Parties”). Hereinafter, Company and Buyer, according to their will, agree to conclude and perform this Agreement on following terms:
Chapter 1. Necessary provisions.
1.1. Parties acknowledge, understand and agree, that this Agreement has binding power.
1.2. Parties realize, that they have rights and obligations under this Agreement.
1.3. Buyer should read this Agreement carefully and in full before using any services, that Company provides.
1.5. There are third parties to this Agreement. To the extend, permitted and needed by law, Ethereum Blockchain platform, Security vaults, Web Hosting Providers, Emeralds traders are related to this Agreement.
Chapter 2. Purchase of Tokens, payment, taxes, features, distribution of Tokens.
2.1. On the Closing Date, subject to the terms and conditions of this Agreement, the Company hereby agrees to sell to Buyer and Buyer hereby agrees to purchase from the Company, the Tokens (The “Transaction”).
2.2. The Purchase Price for the Tokens shall be between _________ (hereinafter “Purchase Price”). The Purchase Price shall be payable upon execution of this Agreement. For the purpose of this Agreement, the value of the Purchase price shall be deemed in U.S. Dollars or EURO. Whether Buyer pays by the cryptocurrency - Ethereum.
2.3.The redemption of Tokens by the physical Emeralds. This redemption will be accessible for Buyer from January 1, 2019. For the sake of redempion Company can request additional individual data, including copy of passport or ID, a receipt of a service (for example, bill), that prooves that the costs of the shipment, insurance and taxes will be covered by Buyer. Any Tokens, used for abovementioned purposes, will be annulled.
2.4. Buyer realizes that he bears sole responsibility for any taxes as a result of the matters and transactions the subject of this instrument, and any future acquisition, ownership, use, sale or other disposition of Tokens. To the extent permitted by law, Buyer agrees to indemnify, defend and hold the Company or any of its affiliates, employees or agents (including developers, auditors, contractors or founders) harmless from any claim, liability, assessment or penalty with respect to any taxes (other than any net income taxes of the Company that result from the issuance of Tokens to the Buyer) associated with or arising from the Buyer's purchase of Tokens hereunder, or the use or ownership of Tokens.
2.5. Tokens are Colombian Emeralds blockchain assets stored in security vaults initially in Hong Kong. Company provides the advantages offered by crypto assets, plus high levels of reliability, represented by physical assets.
2.6. Tokens are for high quality and will be certified for recognized gems laboratories and bought at the largest Colombian emerald traders, these purchase will be controlled by a group of experts-gemologists, thus ensuring the Tokens have high quality and the value are according to the international average.
2.7. Closing Date. Subject to the satisfaction (or written waiver) of the conditions thereto set forth herein, the date and time of the Closing of the Transaction shall be deemed closed upon receipt of the Purchase Price by the Company (the “Closing Date”). The closing of the transactions contemplated by this Agreement (a “Closing”) shall occur from time to time during the term of the Proposed Sale. At Closing, upon receipt of the Purchase Price from Buyer, Company shall cause to be delivered to Buyer the Tokens within forty-five (45) days.
2.8. Tokens do not have any rights, uses, purpose, attributes, functionalities or features, express or implied, including, without limitation, any uses, purpose, attributes, functionalities or features on the Gemera Platform. Company does not guarantee and is not representing in any way to Buyer that Tokens have any rights, uses, purpose, attributes, functionalities or features. The purchase of Tokens:
- does not provide Buyer with rights of any form with respect to the Company or its revenues or assets, including, but not limited to, any voting, distribution, redemption, liquidation, proprietary (including all forms of intellectual property), or other financial or legal rights;
- is not a loan to Company; and
- does not provide Buyer with any ownership or other interest in Company.
2.9. Tokens may be tradable, however, they are not a currency, security, investment, commodity, a swap on a currency, security or commodity or any other kind of financial instrument.
2.10. Purchase of Tokens is non-refundable and purchases cannot be annulled. Buyer may lose all amounts paid. Company reserves the right to refuse or cancel Token purchase requests at any time in its sole discretion.
2.11. The way of creation of Tokens is Proof of assets (PoA). Tokens will be released depending on the emeralds availability.
2.12. Only the official Website and official documents are the sources for distribution and allocation of Tokens. During the distribution period Company provides special procedures and material specifications. Buyer should follow these instructions. Company is not liable for Buyer's failure to receive Tokens, when Buyer does not adhere the procedures.
Chapter 3. Security and data privacy. Intellectual property rights.
3.1. Buyer should be reasonably careful and take appropriate measures for securing his data and Company's data. Company can deny access to the Buyer's account in case of risk of violation of privacy. Company is under no obligation to recover any Tokens and Buyer acknowledges, understands and agrees that all purchases of Tokens are non-refundable and Buyer will not receive money or other compensation for any Tokens purchased.
3.2. According to the Company's request, Buyer will immediately provide to Company information and documents that Company, in its sole discretion, deems necessary or appropriate to comply with any laws, regulations, rules or agreements, including without limitation judicial process. Such documents include, but are not limited to, passport, driver's license, utility bills, government identification cards, or sworn statements. Buyer consents to Company disclosing such information and documents in order to comply with applicable laws, regulations, rules or agreements. Buyer understands that Company may withhold to distribute Tokens to Buyer until such requested information is provided.
3.3. Intellectual Property. Company retains all right, title and interest in all of Company's intellectual property, including, without limitation, inventions, ideas, concepts, code, discoveries, processes, marks, methods, software, compositions, formulae, techniques, information and data, whether or not patentable, copyrightable or protectable in trademark, and any trademarks, copyright or patents based thereon. Buyer may not use any of Company's intellectual property for any reason without Company's prior written consent.
Chapter 4. Representations and warranties of Parties; risks.
By purchasing Tokens, Buyer represents and warrants to Company that:
4.1. Buyer has all requisite power and authority to execute and deliver this Agreement, to purchase Tokens, and to perform its obligations under this Agreement.
In case Buyer is an individual, he should be at least 18 years old and of sufficient legal age and capacity to purchase Tokens.
In case Buyer is a legal person, it is properly organized, validly existing under its national legislation or other legislation, where it conducts its business.
U.S. persons and Chinese persons are strictly prohibited and restricted from purchasing Tokens and Company is not soliciting purchases by U.S. persons or Chinese persons in any way. If a U.S. person or a Chinese person purchase Tokens, such person has done so and entered into this Agreement on an unlawful, unauthorized and fraudulent basis and this Agreement is null and void. Company is not bound by this Agreement if this Agreement has been entered into by a U.S. person or a Chinese person as Buyer or Buyer has entered into this Agreement or has purchased Tokens on behalf of a U.S. person or a Chinese person, and Company may take all necessary and appropriate actions, in its sole discretion, to invalidate this Agreement, including referral of information to the appropriate authorities.
4.2. Buyer's official documents are true, without mistakes and are not in conflict with terms of this Agreement, other official documents of Company and law.
4.3. The performance and execution of this Agreement require no approval or other actions from any governmental authority or person other than Buyer.
4.4. Buyer is not subject to any of the disqualifying events listed in Rule 506(d)(1) of Regulation D under the Securities Act of 1933 (a “Buyer Event”), and there is no proceeding or investigation pending or, to the knowledge of Buyer, threatened by any governmental authority, that would reasonably be expected to the basis for a Buyer Event.
4.5. Buyer's knowledge of risks of a project. Buyer warrants, that he is familiar with the Company's business objectives and the financial arrangements in connection therewith, is able to evaluate the merits and risks of purchase of Tokens. Buyer understands the nature of the proposed operations, subject, transactions and etc. Buyer represents, that he meets all requirements for purchase of Tokens. Buyer has had a reasonable opportunity to ask questions of and receive answers from the the Company concerning Company and Tokens. Buyer obtained reasonable information to make a decision to purchase Tokens.
4.6. Buyer understands, that purchase of Tokens under this Agreement is irrevocable and Company has the unconditional right to refuse access after the violation or to avoid violation of this Agreement or Website terms and conditions of use, and other official documents.
4.7. Buyer understands, that Tokens may have no value. Buyer may lose all amounts paid.
4.8. Buyer agrees to indemnify and hold harmless the Company, its officers and directors from and against all damages, losses, costs and expenses (including reasonable attorney's fees) which they may incur by reason of Buyer's failure to fulfill any of the terms or conditions of this Agreement, or by reason of any untrue statement made herein or any breach of the representations and warranties made herein or in any document that he provides to Company.
4.9. Buyer understands, agrees, accepts and realizes all provisions of this Agreement and his obligation to perform them.
Representations and warranties of the Company.
4.10. The Company hereby represents and warrants to Buyer, that the statements contained in the following paragraphs of this Section are all true and correct as of the date of this Agreement and the Closing Date:
4.11. All corporate and legal action on the part of Company, its officers, and directors necessary for the execution and delivery of this Agreement, the Tokens, and the performance of Company's obligations hereunder have been taken.
4.12. No consent, approval, order or authorization of, or designation, registration, declaration or filing with, any federal, state, local or other governmental authority on the part of Company is required in connection with the valid execution and delivery of this Agreement and the Tokens.
4.13. Without limiting the foregoing, Company does not represent or warrant that the process of purchasing the Tokens or receiving Tokens be uninterrupted or error-free or that Tokens are reliable and error-free.
4.14. Company does not make any representations and warranties, express, implied or statutory with respect to the title, usage, suitability, fitness for any particular purpose non-infringement, merchantability.
4.15. For Buyer to be remembered, that the insurance is covered only by the purchase cost of the Emeralds and not by the cost of the Token.
Chapter 5. Limitation of liability; indemnification; disclaimers.
5.1. Buyer expressly acknowledges, understands and agrees, that Buyer purchases Tokens at the Buyer's sole risk. Buyer agrees not to seek any refund, compensation or reimbursement from Company, regardless of the reason, and regardless of whether the reason is identified in this Agreement.
5.2. The Company's aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of Agreement, tort or otherwise, shall not exceed the total of the amounts paid to the Company pursuant to this Agreement. Neither the Company nor its representatives shall be liable for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues or diminution in value, arising out of or relating to any breach of this Agreement.
5.3. No failure or omission by the Parties in the performance of any obligation of this Agreement will be deemed a breach of this Agreement or create any liability if the same will arise from any cause or causes beyond the control of the Parties, including, but not limited to, the following: acts of God; acts or omissions of any government; any rules, regulations or orders issued by any governmental authority or by any officer, department, agency or instrumentality thereof; fire; flood; storm; earthquake; accident; war; rebellion; insurrection; riot; and invasion. The affected Party shall notify the other Party of such force majeure circumstances as soon as reasonably practical, and shall promptly undertake all reasonable efforts.
5.4. To the fullest extent permitted by applicable law, Buyer releases Company Parties from responsibility, liability, claims, demands, and/or Damages (actual and consequential) of every kind and nature, known and unknown, arising out of or related to disputes between Buyer and the acts or omissions of third parties.
5.5. Indemnification. Buyer agrees to and shall indemnify, defend and hold Company and his agents, affiliates, agents, legal counsel, heirs, successors and assigns harmless at all times after the date of the Agreement from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury, suffered or incurred, arising from or related to:
- any material misrepresentation by, or material breach of any representation or warranty of Buyer contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by Buyer hereunder;
- Buyer's breach of or violation of this Agreement;
- any nonfulfillment of any material agreement on the part of Buyer under this Agreement;
- any alleged act or omission on the part of the Company occurring prior to, or subsequent to the Closing Date;
- any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury, which have been, or may hereafter be asserted against the Company by any third-party;
- any expenses, debts, obligations or liabilities of the Company incurred prior to the Closing Date; or
- any expenses, debts, obligations or liabilities of the Company incurred subsequent to the Closing Date.
Chapter 6. Dispute resolution.
6.1. The parties hereto will use their reasonable best efforts to resolve any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including with respect to the formation, applicability, breach, termination, validity or enforceability thereof. A party hereto must submit a written notice to any other party to whom such dispute pertains, and any such dispute that cannot be resolved within thirty (30) calendar days of receipt of such notice (or such other period to which the parties may agree) will be submitted to an arbitrator selected by mutual agreement of the parties.
6.2. Parties have the right to seek injunctive relief in court as provided in this Agreement for any dispute, controversy or claim arising out of or in relation to or connection with this Agreement, including without limitation any dispute as to the construction, validity, interpretation, enforceability or breach of this Agreement.
Chapter 7. Other necessary provisions (miscellaneous).
7.1. Miscellaneous regulatory compliance:
- anti-money laundering;
- counter-terrorism financing.
To the extent required by applicable law, Buyer complies with all anti-money laundering and counterterrorism financing requirements.
7.2. Amendments and waivers.
No Waivers. The failure by Company to exercise or enforce any right or provision of this Agreement will not constitute a present or future waiver of such right or provision nor limit Company's right to enforce such right or provision at a later time. All waivers by Company must be unequivocal and in writing to be effective. The provisions of this Agreement may only be amended or modified in a writing executed by each of the Company and Buyer. Company may modify this Agreement at any time by posting a revised version on the Website, available at ______________. The modified terms will become effective upon posting. It is Buyer's responsibility to check the Website regularly for modifications to this Agreement. This Agreement was last modified on the date listed at the beginning of this Agreement.
7.3. Governing Law. This Agreement and all actions arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of Hong Kong, without regard to the conflicts of law provisions thereof.
7.4. Entire Agreement. This Agreement shall constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof.
7.5. Survival. The representations, warranties, covenants, and agreements made herein shall survive the execution and delivery of this Agreement. Company reserves the right to terminate this Agreement, in its sole discretion, in the event that Buyer breaches this Agreement. Upon termination of this Agreement all of Buyer's rights under this Agreement immediately terminate and Buyer is not entitled to a refund of any amount paid.
7.6. If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7.7. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall be deemed to constitute one instrument. This Agreement may be executed electronically.
7.8. Nothing in this Agreement 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. This Agreement does not create any third party beneficiary rights in any person.
7.9. All electronic communication according to this Agreement, including but not limited to notices, disclosures, facsimiles, and emails between Parties is deemed as a legal and binding communication.