Terms and Conditions of Use
Last Revised: June 10, 2022
These terms and conditions (the “Terms”) are governing the Acceptance (as defined below) of Magen cryptographic tokens to be issued by Unitech Foundation of Spencer House, The Valley, Anguilla (the “Foundation”) for the purpose of launching the Magen DAO and the Magen tokens (the “Tokens”) to participate in governing it upon the Migration which shall, until an independent legal entity is formed therefor, be represented by the Foundation for the purpose of these Terms. As such, these Terms apply to any Acceptance and/or Holding of the Tokens by any Holder whatsoever. Any Holder that Accepts or Holds Tokens agrees to, and shall be bound by, these Terms.
By Accepting or Holding the Tokens, and thus, accepting these Terms, the Holder does not rely on any representation, warranty, or other provision except as expressly provided in these Terms and any and all conditions, warranties or other terms or implied laws are hereby excluded to the fullest extent permitted by law.
The Acceptance or Holding of the Tokens carries no rights, express or implied, other than the right to use Tokens as a means to enable usage of and interaction within the Platform, upon the migration of the Tokens to the Magen DAO. These Terms shall not and cannot be considered as an invitation to enter into an investment or purchase of any currency, security or financial instrument. These Terms do not constitute, or relate in any way, nor should they be considered, as an offering of securities or financial instruments in any jurisdiction. These Terms do not include or contain any information or indication that might be considered as a recommendation, investment advice or that might be used to base any investment decision. The Tokens are charitable tokens and are not intended to be used as an investment and for any other utility other than to provide the Holder thereof with access to the blessings embodied in the blockchain.
The Holder acknowledges that the Tokens do not represent or confer any ownership right or stake, share, equity or security or equivalent rights, or any right to receive future revenue shares or voting rights or intellectual property rights in the Foundation and any corporate entity to hold, represent or govern the Magen DAO or any Affiliate thereof. Accepting or Holding the Tokens shall not grant any right or influence over the Foundation’s (or any Affiliate thereof) organization and governance to the Holder. The Magen Tokens will however confer the right to vote in matters pertaining directly to the activity and operation of the Magen DAO which shall, upon the Migration, be held via the Magen DAO itself or by its elected individuals.
The Foundation and the Magen DAO reserve the right, at their sole discretion, to revise, modify or update these Terms at any time and for any reason. Such changes shall be effective upon publication of the amended terms. The last revision will be reflected in the “Last Revised” date above. Please make sure to review the Terms periodically.
Notwithstanding any other provisions herein, if any present or future law, regulation, treaty or directive or the interpretation or application thereof shall make any one or more of the provisions contained in these Terms unlawful or in the event that any one or more of the provisions contained in these Terms would be finally determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby and such provision shall be retroactively revised, upon such a final judicial determination that the provision is invalid, illegal or incapable of being enforced, and these terms will be modified so as to affect the original intent of the Foundation, and the Magen DAO as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
1. DEFINITIONS
For purposes of these Terms, the following terms shall have the following meanings:
“Acceptance” means any acceptance, ownership, transmission, receipt or use of Tokens. 2
“Affiliate” means with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with, such Person. For this purpose, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.
“Agent” means with respect to any Person, any of 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 or any other persons authorized to act on its or their behalf.
“Available Reserve” has the meaning set forth in Section 4.
“DAO Safe 1”, “DAO Safe 2” and “DAO Safe 3” have the meaning set forth in Section 4.
“Donor(s)” means and person or persons who will make charitable donations to the Magen DAO, if any.
“Foundation” means Unitech Foundation.
“Gifting” means the distribution of Tokens pursuant to Section 2 of these Terms.
“Holder” or “You” means any person who will Accept, or Hold, the Tokens.
“Holding” means having Tokens in such persons possession at any time and from time to time.
“Initial Members” means the initial community members that have joined their efforts to launch the Magen DAO.
“Litepaper” means the Litepaper formally issued by the Foundation which is hereby incorporated by reference, and as shall be available from time to time for review at https://www.magendao.io/litepaper and may be changed, revised, updated and supplemented from time to time by any corporate entity to hold, represent or govern the Magen DAO.
“Migration” means the migration of the tokens to the Magen DAO and the operation of the smart contracts intended to operate it and govern it using the Magen Tokens.
“Person” means any individual, firm, partnership, joint venture, trust, corporation, limited liability entity, unincorporated organization, estate or other entity (including a governmental authority).
“Platform” means the Magen DAO Platform or any platform that provides for the use of Magen Tokens.
“Platform Launch” means the public release of a version of the Platform, which will provide for the utilization of the Tokens, following the completion of a test launch and security audits, as determined by the Foundation or by any corporate entity to hold, represent or govern the Magen DAO in its sole discretion.
“Platform Launch Date” the date in which the Platform Launch occurs.
“Site” means the Magen DAO’s website at https://www.magendao.io.
“Tax” means any federal, state or local net income, alternative or add-on minimum, estimated, gross income, gross receipts, sales, use, ad valorem, value added, transfer, franchise, capital profits, lease, service, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, abandoned property or escheat, environmental or windfall profit tax, customs duty or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with all interest, penalties, additions to tax and additional amounts with respect thereto.
“Tokens” means Magen cryptographic tokens to be issued by the Foundation for the purpose of governing and the Magen DAO and accessing the blessings on the blockchain. 3
“Wallet” means shall mean a cryptographic public private key pair, typically used in context of virtual currency for the purpose of Holding digital assets, virtual currency or cryptographic tokens.
The definitions in this Section 1 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The words “herein”, “hereof” and “hereunder” and words of similar import refer to these Terms in its entirety and not to any part hereof unless the context shall otherwise require. Unless the context shall otherwise require, any references to any agreement or other instrument or statute or regulation are to it as amended and supplemented from time to time (and, in the case of a statute or regulation, to any successor provisions) up to the date of these Terms. Any reference to any supranational, national, federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
2. INTENDED PURPOSE AND USE OF TOKENS AND THE PLATFORM
The Tokens shall be utilized as means for distribution of blessings and are to be given freely at no cost to anyone that may Accept them as tokens of the blessing of the global community.
The Tokens are not intended as an investment product and while any person may transact freely, we encourage any Holder of tokens to gift them freely and any Prospective Holder to refrain from any transaction involving payment for Magen Tokens.
The initial Gifting will be performed such that the amount of 120 tokens will be given out on a first come first serve basis. Once 10,000 Tokens have been gifted the DAO may decide to start decreasing the Tokens amount from 120.
The Tokens will be gifted freely, without any cost and wiring fees (aka ‘Gas’) which shall be borne by the Foundation with the goal of sharing the blessings of protection and abundance with all members of the community and future generations to come.
3. USE OF PROCEEDS BY THE FOUNDATION
3.1. Preliminary Gifting: Intended Allocation of Proceeds.
3.2. Usage and holding of Proceeds.
The Foundation expects that no proceeds will arise out of the Gifting nor the Acceptance or Holding of the Tokens other than the blessing granted in connection therewith. The Foundation intends to use the proceeds arise from any donations received by the DAO for the development and maintenance of the Platform and the Tokens, as well as for the general corporate purposes of the DAO. Such general corporate proposes of the DAO are expected to include, among others, equipment, bandwidth, any other technical and technology related expenses, as well as incorporation, corporate maintenance and legal and consulting services.
While the Foundation currently anticipates that the proceeds shall be used as outlined above, their actual use may vary depending upon numerous factors, including operating costs and expenditure requirements and other conditions in effect from time to time, as well as the other factors described in these Terms.
Pending their use, the Foundation intends to hold the proceeds arising from any donations received as cash or in the form of cryptocurrencies.
4. TOKEN SUPPLY
The total supply of Tokens that may ever be issued is fifteen million two hundred thousand (15,200,000) Tokens which shall be allocated as follows: (i) at the time of the Gifting, some of the three million (3,000,000) Tokens shall be gifted to the general public, (ii) three million (3,000,000) Tokens shall be kept to award Donors 4 or organizations that support the Magen DAO (the “DAO Safe 1”), (iii) three million (3,000,000) Tokens shall be kept to award leaders of Magen (the “DAO Safe 2”), (iv) three million (3,000,000) Tokens shall be kept to: (A) award any advisors of the Magen DAO, (B) run promotional events in connection with the Platform, (C) provide Holders and prospective Holders with activities where they can get Magen tokens for participating. (This allocation includes community leaders that provide Magen DAO with blessings, technical help, contents and any general support to the Magen leadership community (the “DAO Safe 3”), (v) one and a half million (1,500,000) Tokens shall be granted to certain founders of the Magen DAO, (vi) one and a half million (1,500,000) Tokens shall be granted to the Foundation, and (vii) two hundred thousand (200,000) Tokens shall be used and distributed by the Initial Members in the discretion (the “Available Reserve”).
The Foundation currently expects that the Foundation Allocation’s portion of the Tokens that vests upon the Platform Launch shall be distributed to the Foundation’s employees and possibly its founders, advisors and shareholders.
5. TOKEN GENERATION AND DISTRIBUTION
Important information about the procedures and material specifications of the Gifting of Tokens is provided on the Site and Litepaper including, but not limited to, details regarding the timing and Gifting of the Tokens, the number of Tokens the Foundation intends to gift, and the Foundation’s or the Magen DAO’s, as applicable, anticipated use of proceeds from any donation which may or may not be received. By Accepting or Holding Tokens, the Holder acknowledges and accepts that the Holder have read, understood and have no objection to these procedures and material specifications.
6. GOVERNANCE
The Magen community shall be initially governed the Initial members. The Initial Members shall be governing the Magen community and will decide on various matters such as the distribution of up to 800,000 Tokens, of which up to 200,000 Tokens of the Tokens deposited in each of DAO SAFEs 1 through 3, and up to 200,000 Tokens deposited in the Available Reserve, and the initial votes described in the Litepaper. Once the Initial Members group reaches 100 members the Initial Members shall be able to decide on additional issues and matters and nominate the same for voting, such as to propose the DAO’s voting rules, policies and mechanisms, governing structure, allocation of additional tokens from the above allocations and other matters pertaining to the governance of the community.
7. CANCELLATION; REFUSAL OF ACCEPTANCE REQUESTS
The Acceptance of Tokens from the Foundation is final, and there are no cancellations except as may be required by applicable law or regulation, if any, once a prospective Holder provides the Foundation with its details such details are then listed for the Gifting automatically. Under special circumstances, the Foundation and/or the Magen DAO reserves the right to refuse or cancel Token Acceptances in its sole and absolute discretion.
At any time prior to the Platform Launch, the Foundation may either temporarily suspend or permanently abort the Platform Launch and the Gifting. During any period of suspension or in the event that the Platform Launch is aborted, Tokens shall not be available for Acceptance.
8. PERSONAL INFORMATION
The Foundation may determine, in its sole and absolute discretion, that it needs to perform certain due diligence on certain prospective Holders or Donors for compliance with applicable law. As part of the Foundation’s due diligence process, the Foundation or an accreditation service in its behalf may request that the Holder provide certain information and KYC materials. The Holder agrees to provide the Foundation with such information promptly upon request and acknowledges and accepts that the Foundation may refuse to gift Tokens prior to provision of such requested information or material in a form that is satisfactory to the Foundation.
9. TAXES
9.1. Acknowledgement of Tax Consequences.
9.2. Tax Responsibility.
The Holder hereby acknowledges, understands, and agrees that although the Magen DAO and the Foundation anticipate that the Tokens shall bear no monetary value, the Acceptance and Holding of Tokens may have tax consequences for the Holder and the Holder is solely responsible for Holder’s compliance with Holder’s Tax obligations.
The Holder shall, in addition to the other amounts payable under this Agreement, pay all applicable Taxes, which are levied or imposed by reason of the Acceptance and/Holding of Tokens and any action contemplated hereunder, excluding only taxes based on the Foundation’s net income. The Holder agrees to indemnify, defend, and hold the Foundation, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Holder’s failure to report or pay any such Taxes, duties or assessments.
10. ELIGIBILITY TO PARTICIPATE
Please note that any use or access of the Platform by anyone under the age 18 is strictly prohibited. By accepting the Terms, you hereby represent that you are at least 18 years or older and that you have the legal capacity to enter into the Terms.
You hereby undertake not to: (i) impersonate another person with respect to the Platform, these Terms and the Gifting; (ii) mislead, deceive or defraud us or any service provider we may use in the context of providing the Platform; (iii) use the Platform, these Terms or the Gifting in any unlawful, illegal, harmful manner or in breach of the Terms; or (iv) use the Platform, these Terms or the Gifting in any manner that could impair, disrupt, disable or damage the Platform or the Gifting, or interfere with any other party’s use and enjoyment of the Platform or the Gifting; including by (a) taking any action that imposes, or may impose at our sole discretion an unreasonable overload on our Platform or infrastructure; (b) interfering with the proper working of the Platform; (c) interfering with or damaging any server, equipment or network connected to or used to provide the Platform. Note that even after termination of the Terms for any reason, you shall continue to be bound by the above restrictions on use with respect to the Platform. You acknowledge and agree that any breach of the terms herein shall entitle the Foundation or the Magen DAO to suspend, revoke or terminate your access to the Platform.
You shall be solely responsible for the activity that occurs on the Wallet with which interact with the platform and you must keep your wallet’s ‘seed’ and other credentials secure and confidential. In addition, you are obligated to immediately notify us of any unauthorized use of your Wallet.
11. REPRESENTATION AND WARRANTIES
11.1. Permitted Use.
You acknowledge and agree that any Acceptance and/or Holding of Tokens and/or use or access you make in connection with the Platform is done at your sole risk, and shall be your sole responsibility, in accordance with the Terms.
We shall not tolerate any transmission of advertising or promotional materials within the Platform, the Site and any communication manner used in connection therewith (including any social media accounts) and any communication manner used therewith and/or operated thereby, including among others, spam, chain letter, junk mail or any other form of unsolicited materials, and you shall not use the Platform for such transmission of advertising or promotional materials.
11.2. Residency.
11.3. Authority.
11.4. Prohibited Parties and assets.
You represent and warrant that you: (i) do not reside; (ii) are not located; (iii) do not have a place of business; or (iv) are not conducting business (any of which makes you a “Resident”) in the state of New York or the United States of America. You further represent and warrant that you are not a Resident of any other state or country that requires virtual currency or Token issuers to be licensed.
You represent and warrant that you are not: (i) a US Person, as such term is defined in Regulation S of the Securities Act of 1933 of the United States; (ii) a Resident of a jurisdiction in which access to, trading or use of the Tokens (as defined below) is prohibited by applicable law, decree, regulation, treaty, or administrative act, (iii) a Resident of, or located in, a jurisdiction that is subject to U. S. sanctions or embargoes or a Resident of a Sanctioned Jurisdiction (as defined below), or (iv) an individual, or an individual employed by or associated with an entity, identified on the U. S. Department of Commerce’s Denied Persons or Entity List, the U. S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U. S. Department of State’s Debarred Parties List. You agree that if the country of your residence or other circumstances change such that the above representations are no longer accurate, you will immediately cease trading or use of the Tokens.
“Sanctioned Jurisdiction” means, at any time, a country or territory which is itself the subject or target of any country-wide or territory-wide Sanctions (including, at the time of these Terms, Lebanon, Crimea, Cuba, Iran, North Korea and Syria);
You represent and warrant that you have full power and authority to enter into these Terms and accept the terms and condition hereunder and have the full legal capacity to do any of the same. You represent and warrant that if you are using the Platform on behalf of a legal entity: (i) such legal entity is duly organized and validly existing under the applicable laws of the jurisdiction of its organization, (ii) you have full power and authority to enter into these Terms on behalf of such entity and accept the terms and condition hereunder; (iii) all corporate action on the part of such entity, its shareholders and directors or partners, as the case me be, that are necessary for the authorization, execution and performance of these terms by such entity have been taken; and (iv) the Terms are valid and binding upon the such entity and enforceable in accordance with the terms and conditions hereof.
You represent and warrant that neither you nor any person or entity directly or indirectly controlling, controlled by or under common control with an entity you control is a person identified as a terrorist or terrorist organization on any relevant lists maintained by governmental authorities.
You represent and warrant that none of the assets, Wallets, cash or property that have been used in the context of your use of the Platform or the Gifting, or will pay or be used, to donate to the Magen DAO or the Foundation, has been or shall be derived from, or related to, any activity that is deemed criminal under the laws of any applicable jurisdiction.
You represent and warrant that you (or, in the event you are acting on the behalf of any corporate entity, then such entity, as applicable) are the lawful owner of the Wallet or assets to be used in the context of your use of the Platform and that none of the Wallet, cash or property that have been used in the context of your use of the Platform or the Gifting, are not subject to the rights and legitimate interests of any third party and that such Wallet, cash or property and of all rights thereto, are free and clear of all liens, claims, charges, encumbrances, restrictions, rights or options to purchase.
You represent and warrant that none of the cash or property that have been used in the context of your use of the Platform the Gifting and/or any donation you may make, shall cause the Foundation or the Magen DAO or its affiliates, directors, officers and representatives to be in violation of the United States Bank Secrecy Act, 7
the United States Money Laundering Control Act of 1986 or, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, and any regulations promulgated thereunder, as such laws and regulations may be amended from time to time, or any similar laws or regulations of any other applicable jurisdiction.
You agree to be bound by any affirmation, assent or agreement that you transmit to the Foundation or the Magen DAO or their Affiliates by computer or other electronic device, including internet, telephonic and wireless devices, including, but not limited to, any consent you give to receive communications from the Foundation or the Magen DAO or any of their Affiliates solely through electronic transmission. You agree that when you click on an “I Agree,” “I Consent,” or other similarly worded button or entry field with a mouse, keystroke or other device, your agreement or consent will be legally binding and enforceable on you or, in the event you are acting on the behalf of any corporate entity, on such entity, as applicable, and will be the legal equivalent of the your handwritten signature on an agreement that is printed on paper.
12. INDEMNITY
To the fullest extent permitted by applicable law, the Holder shall fully and effectively indemnify, defend and hold harmless the Foundation and its Agents from and against any and all claims, judgements, demands, actions, damages, losses, costs and expenses (including Taxes as well as reasonable professional and legal fees) that arise from or relate to: (i) the Acceptance or Holding of Tokens; (ii) the Holder’s responsibilities or obligations under these Terms; (iii) violation of these Terms by the Holder; or (iv) violation of the Holder of any rights of any other person or entity.
The Foundation reserves the right to exercise sole control over the defense, at the Holder’s expense, of any claim subject to this indemnity. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between the Holder and the Foundation.
13. INTELLECTUAL PROPERTY RIGHTS
You hereby acknowledge and agree that all intellectual property rights including, but not limited to, all copyrights, trademarks, patents, characters, trade names, software code, trade secrets, icons, logos, layouts, and graphics are the exclusive intellectual property of the Magen DAO, it’s members, or Affiliates and are all protected by national and international intellectual property laws and treaties including all applicable copyright laws and regulations. Please note that the Platform may contain third-party copyrights, graphics, logos or trademarks, and you are not granted any right or license with respect to our trademarks or the trademarks of any third party.
As part of the Platform and the services and products therewith, we look forward to users’ comments, suggestions or feedback including with respect to improvements, compliments, or other issues as related to the Platform (“Feedback“). Please be aware that Feedback provided to us shall not be considered confidential or proprietary. You acknowledge and agree that by submitting Feedback to us, you hereby grant us a fully paid-up, worldwide, non-exclusive, perpetual, sub-licensable, irrevocable license to use, reproduce, display and publish such Feedback, without any additional consideration.
Except as set forth hereunder, you may not copy, alter, adapt, modify, reproduce, distribute or commercially exploit any materials, including graphics, video, text, audio, software code, design, logos or user interface from the Platform, without our prior written consent. You hereby represent and undertake that you will not make any copies of, decompile or disassemble, reverse engineer, distribute, modify, adapt, translate or otherwise transfer, rent, lease, resell, sublicense or otherwise commercially exploit the Platform or any part thereof, except as permitted hereunder.
14. DISCLAIMERS
You acknowledge and agree that your use of the Platform is at your own discretion and sole risk, and that the entire risk as to the results and performance of the Platform, including, among others, any damages to your 8
device, computer system, well-being or any other device used to access the Platform, or data stored on such devices, is solely yours.
None of the Platform, Foundation or the Magen DAO is providing religious advice or counsel. Any statement should not be construed as taking the place of your own ability to evaluate religious claims on the basis of a rational evaluation of the evidence. The Platform, Foundation or the Magen DAO shall not be held liable or responsible for misunderstanding or misuse of any information contained in or posted on the Platform. The Platform, Foundation or the Magen DAO are also not responsible for any loss, damage, or injury caused, or alleged to be caused, directly or indirectly by any action or behavior precipitated by information on this Site or associated publications. This is especially true if you act on statements predicting future events and these events do not come to pass.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED IN WRITING BY THE FOUNDATION, (A) THE TOKENS ARE GIFTED AND ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND MADE BY THE FOUNDATION, AND THE FOUNDATION 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; (B) THE FOUNDATION DOES NOT REPRESENT OR WARRANT THAT THE TOKENS ARE RELIABLE, CURRENT OR ERROR-FREE, MEET THE HOLDER’S REQUIREMENTS, OR THAT DEFECTS IN THE TOKENS SHALL BE CORRECTED; AND (C) THE FOUNDATION CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE TOKENS OR THE DELIVERY MECHANISM FOR TOKENS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE PLATFORM OR SITE MAY CONTAIN LINKS TO OTHER WEBSITES AND SERVICES. UNLESS FOX EXPRESSLY STATES OTHERWISE, YOU SHOULD ASSUME THAT ANY SUCH WEBSITES AND SERVICES ARE NOT UNDER THE CONTROL OF THE FOUNDATION OR THE MAGEN DAO. THE FOUNDATION AND THE MAGEN DAO DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT, PRODUCTS OR SERVICES OFFERED BY ANY THIRD PARTY HYPERLINKED THROUGH THE PLATFORM OR THE SITE AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. THE FOUNDATION OR THE MAGEN DAO FURTHER DISCLAIM ANY LIABILITY FOR ANY AND ALL FORMS OF LOSS OR DAMAGE ARISING OUT OF THE USE OF SUCH WEBSITES AND SERVICES. ADDITIONALLY, EVEN IF WE INCLUDE A LINK TO OTHER WEBSITES AND SERVICES IN THE PLATFORM OR THE SITE, SUCH LINK DOES NOT MEAN THAT WE RECOMMEND OR INDUCE YOU TO USE SUCH OTHER WEBSITES AND SERVICES IN ANY RESPECT. ACCORDINGLY, WE ENCOURAGE YOU TO READ THE TERMS AND CONDITIONS AND PRIVACY POLICY OF EACH THIRD-PARTY WEBSITE OR SERVICE THAT YOU MAY CHOOSE TO VISIT.
15. LIMITATION OF LIABILITY
NEITHER THE FOUNDATION NOR ANY OF ITS RESPECTIVE AGENTS OR AFFILIATES, SHALL BE LIABLE UNDER THESE TERMS FOR ANY DAMAGE OR LOSS WHETHER DIRECT OR INDIRECT, CONSEQUENTIAL, LOSS OF PROFIT OR REVENUE, LOSS OF GOODWILL OR SPECIAL, PUNITIVE OR ENHANCED DAMAGES ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS.
OTHER THAN IN THE EVENT OF THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL, WILLFUL OR RECKLESS MISCONDUCT OF FOUNDATION, THE AGGREGATE COMBINED LIABILITY OF THE FOUNDATION ARISING OUT OF OR RELATED TO THESE TERMS AND/OR THE TOKENS, WHETHER ARISING OUT OF OR AS A RESULT OF BREACH OF CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED US$500. 9
HOLDER ACKNOWLEDGES THAT ALL OF THE HOLDER’S RIGHTS AND REMEDIES ARE CONTAINED OR REFERRED TO IN THESE TERMS, AND THE HOLDER SHALL NOT HAVE ANY OTHER RIGHT OR REMEDY, INCLUDING A CLAIM FOR INNOCENT OR NEGLIGENT MISREPRESENTATION OR NEGLIGENT MISSTATEMENT.
EVERY TERM OR CONDITION IMPLIED BY LAW IN ANY JURISDICTION IN RELATION TO THE SUBJECT MATTER OF THESE TERMS SHALL BE EXCLUDED TO THE FULLEST EXTENT POSSIBLE, AND TO THE EXTENT THAT IT IS NOT POSSIBLE TO EXCLUDE ANY SUCH TERM OR CONDITION, THE HOLDER IRREVOCABLY WAIVES ANY RIGHT OR REMEDY IN RESPECT OF IT.
16. RELEASE
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE HOLDER RELEASES THE FOUNDATION AND ANY OF ITS RESPECTIVE REPRESENTATIVES OR AFFILIATES, INCLUDING BUT NOT LIMITED TO ITS OFFICERS, DIRECTORS, AGENTS, JOINT VENTURES, EMPLOYEES AND SUPPLIERS, FROM ALL AND ANY 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. THE HOLDER EXPRESSLY WAIVES ANY RIGHTS THE HOLDER MAY HAVE UNDER ANY LAW THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH THE HOLDER MAY KNOW OR SUSPECT TO EXIST IN THE HOLDER’S FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
17. DISPUTE RESOLUTION; ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT CONTAINS CERTAIN PROVISIONS, SUCH AS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH AFFECT THE HOLDER’S LEGAL RIGHTS. THIS SECTION REQUIRES EACH HOLDER TO ARBITRATE ALL DISPUTES AND CLAIMS WITH FOUNDATION AND LIMITS THE MANNER IN WHICH EACH HOLDER CAN SEEK RELIEF FROM THE FOUNDATION.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either the Holder or the Foundation seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, the Holder and the Foundation (i) except as expressly provided herein, waive the Holder’s respective rights to have any and all Disputes arising from or related to these Terms resolved in any court, and (ii) waive the Holder’s respective rights to a jury trial (if applicable to jurisdiction of the Holder). Instead, the Holder and the Foundation shall arbitrate Disputes through binding arbitration provided in these Terms.
Any Dispute arising out of or related to these Terms is personal to the Holder and the Foundation and shall be resolved solely through individual arbitration and shall not be brought as a class arbitration, class action or any other type of representative proceeding. No class arbitration or arbitration in which an individual may attempt to resolve a Dispute as a representative of another individual or group of individuals shall be possible. 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.
The enforceability of this Section 17 shall be both substantively and procedurally governed by and construed and enforced in accordance with the laws of Anguilla, to the maximum extent permitted by applicable law.
Each of the Holder or the Foundation shall notify the other in writing of any Dispute within thirty (30) days following the date such Dispute arises so that respective party can attempt in good faith to resolve the Dispute informally and internally. 10
Notice to the Foundation shall be sent by e-mail to the Foundation at [email protected]. Notice to the Holder shall be sent by email to any email address the Holder provided in connection with the matter in question. The Holder’s notice must include (i) the Holder’s 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 the Holder is seeking.
In the event that the Holder and the Foundation cannot agree how to resolve the Dispute within thirty (30) days following the date the notice is received by the applicable party, then either the Holder or the Foundation may, as appropriate and in accordance with this Section 17, commence an arbitration proceeding or, to the extent specifically provided for in this Section 17, file a claim in accordance with this Section 17 and provide the other party an arbitration notice.
The Arbitration shall be conducted in Anguilla, in the English language and in accordance with Anguillan arbitration laws and any rules and regulations promulgated thereunder (the “Arbitration Law”), which are hereby incorporated by reference.
The arbitration shall be conducted confidentially by a single neutral arbitrator, who shall be a prominent and reputable Anguillan attorney, from one of the leading law firms in Anguilla, with relevant expertise in the subject matter, who shall not be affiliated to any of the Foundation or the Holder and shall not have a conflict of interests. Such Arbitrator shall be selected jointly by the Foundation and the Holder or, if the Foundation and the Holder are unable to agree within ten (10) days following the date of the receipt of the arbitration notice, the Arbitrator shall be selected by the president of the Anguillan Bar Association.
The competent courts located in Anguilla shall have exclusive jurisdiction over (i) any appeals and the enforcement of an arbitration decision, and (ii) over any claims filed in accordance with this Section 17.
These Terms, the arbitrator and the president of the Anguilla Bar Association (if applicable) shall have (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (ii) the authority to grant any remedy that would otherwise be available in court, provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative or class action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
By agreeing to be bound by these Terms, the Holder either (i) acknowledges and agrees that the Holder has read and understood the Arbitration Law and the terms of arbitration under this Section 17, or (ii) waives the opportunity to read the Arbitration Law or the terms of arbitration under this Section 17 and any claim that the Arbitration Law is unfair or should not apply for any reason.
18. GOVERNING LAW AND JURISDICTION
These Terms shall be governed by and construed and enforced in accordance with the laws of Anguilla. Any dispute, controversy or claim arising out of or in connection with these Terms or the breach, termination, existence, legal competence or invalidity thereof, that is not subject to arbitration in accordance with these Terms, shall be exclusively settled by the competent court Anguilla.
19. SEVERABILITY
If any term or provision of these Terms is held by an arbitrator or by a court of competent jurisdiction (as the case may be) to be unenforceable under applicable law, then such provision shall be excluded from these Terms and the remainder of these Terms shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with their terms; provided, however, that in such event these Terms shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the 11
meaning and intention of the excluded provision as determined by such court of competent jurisdiction. In any event of an interpretive dispute, the interpretation in favor of the Foundation shall prevail.
20. ENTIRE AGREEMENT; AMENDMENTS
These Terms and the Acceptance Agreement (if executed with the relevant Holder) constitute the entire agreement between the Holder and the Foundation relating to the Acceptance of Tokens. The Foundation may make changes to these Terms from time to time as reasonably required to comply with applicable law or regulation. In the event that the Foundation makes such changes, it shall post the amended Terms on its website. Such amended Terms shall be effective immediately once made public on the Foundation’s website.
21. ASSIGNMENT
The Holder may not assign any of the Holder’s rights and obligations under these Terms without the Foundation’s consent. Notwithstanding anything to the contrary in these Terms, any discretion, right and obligation that is attributed to the Foundation may be assigned by the positive resolution of the Magen DAO to an entity of its choosing following the Migration.
22. DELAYS; OMISSIONS
No delay or omission to exercise any right, power, or remedy accruing to the Foundation upon any breach or default of the Holder of these Terms, shall be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent, or approval of any kind or character on the part of any party of any breach or default under these Terms, or any waiver on the part of any party of any provisions or conditions of these Terms, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under these Terms or by law or otherwise afforded to the Foundation, shall be cumulative and not alternative. The Foundation shall 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 Foundation’s reasonable control.
23. NO PARTNERSHIP OR JOINT VENTURE
Accepting or Holding Tokens from the Foundation does not create any form of partnership, joint venture or any other similar relationship between the Holder and the Foundation. Except as otherwise provided herein, these Terms are intended solely for the benefit of the Holder and the Foundation and are not intended to confer third-party beneficiary rights upon any other person or entity. The Holder agrees and acknowledges that all agreements, notices, disclosures, and other communications that the Foundation provides, including these Terms, shall be provided in electronic form.
24. LANGUAGE
Each Holder by entry into these Terms, the Acceptance or Holding of the Tokens hereby clarifies that it is familiar with the English language and does not require translation to any other language. Each Holder hereby agrees that is has been represented by counsel during the entry into these terms or have had the opportunity to obtain one and, therefore, these Terms shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted. In the event any ambiguity or question of intent or interpretation arises, these Terms shall be construed as if drafted jointly by both parties, and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any provision of these Terms.