Terms and conditions have to be reviewed before submitting the application.
- WHEREAS this Token Purchase Agreement (the “Agreement”) contains the terms and conditions that govern the Contributor's purchase of certain contributor tokens generated and distributed by HIT Foundation (the “HITC Tokens”) and is entered into between the Contributor and HIT Foundation;
- WHEREAS HIT Foundation is a foundation established under the laws of Switzerland and registered in the commercial register of the state of Zug, and intends to distribute HITC Tokens to Contributor in order to raise capital for the HIT platform which is to include a platform designed for the exchange of personal health data (the “Project”); Apart from the HITC tokens the HIT Foundation generated another token (HIT token) to facilitate transactions of the HIT platform.
- WHEREAS Contributor intends to participate in HIT Foundation's token offering (the "TO") and to acquire HITC Tokens, and has sufficient knowledge, experience and expertise to assess risks and chances related to such acquisition.
NOW, THEREFORE, in consideration of the mutual representations, warranties and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, HIT Foundation and Contributor agree as follows:
1. Acceptance of Agreement and Purchase of HITC Token
1.1 Effective Time
This Agreement shall be effective and binding on the Parties when Contributor: (a) signs the agreement and thereby indicates that Contributor has read, understands and agrees to the terms of this Agreement and the HIT Terms (as defined herein); or (b) upon HIT Foundation’s receipt of payment from Contributor (such time, the “Effective Date”).
2 Token Distribution
2.1 HIT Foundation's Obligations regarding Token Distribution
HIT Foundation shall allocate and distribute HITC Tokens (the “Token Distribution”) to Contributors in accordance with this Agreement and the HIT Terms.
2.2 Contributor's Obligations regarding Token Distribution
As a condition precedent to the Token Distribution, Contributor shall provide an accurate digital NEM wallet address to HIT Foundation for receipt of any HITC Tokens.
Contributor shall pay the above entered amount and will receive HITC Tokens according to a countervalue of Euro (EUR) 5.00 per HITC Token.
2.3 Sources and Uses of Funds
a) Payments. All payments by Contributor under this Agreement shall be made only in Contributor’s 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 (FATF), and is not otherwise forbidden or restricted under any applicable laws, statutes, ordinances, rules, regulations, directives, judgments, injunctions, orders and decrees, as these may be amended from time to time (together, the “Applicable Laws”).
b) Use of Funds, Anti-Money Laundering; Counter-Terrorism Financing. Contributor shall not use the HITC Tokens to finance, engage in, or otherwise support any unlawful activities, including without limitation money laundering activities. To the extent required by Applicable Laws, Contributor shall comply with all anti-money laundering and counter-terrorism financing requirements. Contributor shall in particular provide the information as specified in Annex 1 of this Agreement.
3 No Creation of Other Rights
3.1 No Claim, Loan or Ownership Interest
The purchase of HITC Tokens (i) shall not provide Contributor with rights of any form with respect to HIT Foundation, its governance, its decision-making or its revenues or assets, including without limitation any voting, distribution, redemption, liquidation, proprietary (including all forms of intellectual property), or other financial or legal rights or rights in relation to allocation and use of funds; (ii) shall not be deemed to be a loan to HIT Foundation; and (iii) shall not provide Contributor with any ownership or other interest in HIT Foundation or the Project.
3.2 No other Rights
Contributor acknowledges, understands and agrees that (i) participation in the TO and acquisition of HITC Tokens are final, non-refundable and cannot be cancelled, and Contributor shall not receive money or other compensation for any HITC Tokens acquired, (ii) Contributor may lose all amounts paid, (iii) HITC Tokens may have no value at all, and (iv) HITC Tokens have no rights, uses or attributes outside of the HIT platform. In addition, HIT Foundation reserves the right to refuse or cancel the TO and the acquisition of HITC Tokens at any time in its sole discretion.
4 Security and Data; Taxes and Fees
4.1 Security and Data Privacy
a) Contributor’s Security. Contributor shall implement reasonable and appropriate measures designed to secure access to: (i) any device associated with Contributor and utilized in connection with Contributor’s acquisition of HITC Tokens; (ii) private keys to Contributor’s wallet or account; and (iii) any other username, passwords or other login or identifying credentials. HIT Foundation shall be under no obligation to recover any HITC Tokens in case of loss.
b) Additional Information. Upon HIT Foundation’s request, Contributor shall immediately provide to HIT Foundation information and documents that HIT Foundation, in its sole discretion, deems necessary or appropriate to comply with any laws, regulations, rules, directives or agreements, including without limitation judicial process. Such documents include, but are not limited to, passports, driver’s licenses, utility bills, photographs of associated individuals, government identification cards or sworn statements. Contributor hereby consents to HIT Foundation disclosing such information and documents in order to comply with Applicable Laws or agreements. HIT Foundation may, in its sole discretion, refuse to distribute HITC Tokens to Contributor until such requested information is provided.
Contributor shall be solely responsible for compliance with any tax obligations arising from the acquisition or receipt of HITC Tokens. HIT Foundation shall bear no liability or responsibility with respect to any tax obligation of Contributor in respect of the acquisition and receipt of any HITC Tokens.
5 Representations and Warranties
5.1 Contributor Representations and Warranties
Contributor represents and warrants to HIT Foundation as of the Effective Date that it is fully entitled and authorized to enter into this Agreement and to purchase HITC Tokens thereunder, and is capable of doing so, and that there are no restrictions applying to Contributor that would prevent it from doing so. In particular, Contributor gives the representations and warranties as set forth in Annex 2.
5.2 No HIT Foundation Representations and Warranties
To the fullest extent permitted by Applicable Laws, HIT Foundation expressly disclaims all representations and warranties, express, implied or statutory.
6 Contributor Acknowledgments and Consents
Contributor acknowledges and understands that Contributor has read in full, understands and agrees to (i) this Agreement, and (ii) the HIT Terms. In particular, Contributor grants the acknowledgments and consents as set forth in Annex 3.
7 Contributor Acknowledgments of Risks
Contributor acknowledges and understands that HITC Tokens may have no value and will not guarantee any return and that Contributor may lose all amounts paid. For this purpose, Contributor has carefully reviewed, acknowledges, understands and assumes the risks which are in particular set forth in Annex 4, as well as all other risks associated with the HITC Tokens (including those not discussed herein), all of which could render the HITC Tokens worthless or of little value.
8 Limitation of Liability; Indemnification
8.1 Limitation of Liability
To the fullest extent permitted by Applicable Laws, Contributor disclaims and waives any right or cause of action against HIT Foundation of any kind in any jurisdiction that would give rise to any damages whatsoever, on the part of HIT Foundation. HIT Foundation shall not be liable to Contributor 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 HIT Foundation has been advised of the possibility of such damages. Contributor agrees not to seek any refund, compensation or reimbursement from HIT Foundation or any of its directors, officers, employees, agents, (sub-)contractors, affiliates etc., regardless of the reason, and regardless of whether the reason is identified in this Agreement. HIT Foundation is not and shall not be responsible for or liable for the market value of HITC Tokens, the transferability or liquidity of HITC Tokens or the availability of any market for HITC Tokens through third parties or otherwise.
Under no circumstances shall the liability of HIT Foundation and the aggregate joint liability of HIT Foundation and any of its directors, officers, employees, agents, (sub-)contractors, affiliates etc., whether in contract, warrant, tort or other theory, for damages to Contributor under this Agreement exceed the amount received by HIT Foundation from Contributor.
8.3 Force Majeure
Contributor understands and agrees that HIT Foundation shall not be liable and disclaims all liability to Contributor in connection with any force majeure event, including acts of God, labor disputes or other industrial disturbances, electrical, telecommunications, hardware, software or other utility failures, software or smart contract bugs or weaknesses, earthquakes, storms, or other nature-related events, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war, technological change, changes in interest rates or other monetary conditions, and, for the avoidance of doubt, changes to any blockchain-related protocol.
To the fullest extent permitted by Applicable Laws, Contributor releases HIT Foundation from responsibility, liability, claims, demands, 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 Contributor and the acts or omissions of third parties.
a) To the fullest extent permitted by Applicable Laws, Contributor shall indemnify and reimburse HIT Foundation from any and all actions, proceedings, claims, damages, demands and actions (including without limitation fees and expenses of counsel) incurred by HIT Foundation arising from or relating to: (i) Contributor’s breach of this Agreement; (ii) any inaccuracy in any representation or warranty of Contributor; (iii) Contributor’s violation of any rights of any other person or entity; or (iv) any act or omission of Contributor that is negligent, unlawful or constitutes willful misconduct.
b) HIT Foundation reserves the right to exercise sole control over the defense, at Contributor’s expense, of any claim subject to indemnification under this Section 8.5. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between Contributor and HIT Foundation or in any applicable law.
Contributor shall not assign this Agreement without the prior written consent of HIT Foundation. Any assignment or transfer in violation of this clause 11.1 shall be null and void. HIT Foundation may assign this Agreement to an affiliate. Subject to the foregoing, this Agreement and the rights and obligations of the Parties hereunder, shall be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives.
9.2 Entire Agreement
This Agreement, including the exhibits and annexes attached hereto and the materials incorporated herein by reference, constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof, including without limitation any public or other statements or presentations made by HIT Foundation about the HITC Tokens or the Project. All exhibits and annexes attached hereto and the materials incorporated herein by reference are integral parts of this Agreement. Accordingly, “Agreement” includes all aforementioned documents, as amended from time to time, and the Agreement applies to all such aforementioned documents.
If any provision of this Agreement 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.
9.4 Termination of Agreement; Survival.
This Agreement shall terminate upon the completion of all sales in the Token Distribution. HIT Foundation reserves the right to terminate this Agreement, in its sole discretion, in the event that Contributor breaches this Agreement. Upon termination of this Agreement: (a) all of Contributor’s rights under this Agreement immediately terminate; (b) Contributor is not entitled to a refund of any amount paid; and (c) sections 3, 4, 6, 7, 8, 9 and 10 shall continue to apply in accordance with their terms.
9.5 Electronic Communications
Contributor agrees and acknowledges that all agreements, notices, disclosures and other communications that HIT Foundation provides Contributor pursuant to this Agreement or in connection with or related to Contributor’s purchase of HITC Tokens, including this Agreement and the HIT Terms, may be provided by HIT Foundation, in its sole discretion, to Contributor in electronic form.
10 Governing Law and Venue
10.1 Governing Law
This Agreement shall be governed by, interpreted and construed in accordance with the substantive laws of Switzerland, without giving effect to its conflict of laws principles.
Any claim or dispute arising out of this Agreement shall be submitted to the exclusive jurisdiction of the competent courts in Zug, Switzerland, and Contributors hereby submit irrevocably to the jurisdiction of such courts with the exclusion of any other jurisdiction and formally waive any and all claims with respect thereto including any claim of forum non conveniens.
10.3 No Class Actions, Representative Actions or Alike
Any dispute arising out of or related to this Agreement is personal to Contributor and HIT Foundation and shall not be brought as a class action or any other type of representative proceeding.
Representations and Warranties
Contributor represents and warrants to HIT Foundation as of the Effective Date the following:
a) Authority. Contributor has all requisite power and authority to execute and deliver this Agreement, to purchase HITC Tokens, and to carry out and perform its obligations under this Agreement. If an individual, Contributor is at least 18 years old and of sufficient legal age and capacity to purchase HITC Tokens. If a legal person, Contributor is duly organized, validly existing and in good standing under the laws of its domiciliary jurisdiction and each jurisdiction where it conducts business.
b) No Restrictions. Contributor is not subject to a jurisdiction where the distribution, acquisition, holding and resale of HITC Tokens is restricted.
c) No Conflict. The execution, delivery and performance of this Agreement 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: (i) any provision of Contributor’s organizational documents, if applicable; (ii) any provision of any judgment, decree or order to which Contributor is a party, by which it is bound, or to which any of its material assets are subject; (iii) any material agreement, obligation, duty or commitment to which Contributor is a party or by which it is bound; or (iv) any laws, regulations, directives or rules applicable to Contributor.
d) No Consents or Approvals. The execution and delivery of, and performance under, this Agreement requires no approval or other action from any governmental authority or person other than Contributor.
e) Contributor Status. Contributor is not subject to any events disqualifying the Contributor for the acquisition of HITC Tokens (a “Contributor Event”), and there is no proceeding or investigation pending or, to the knowledge of Contributor, threatened by any governmental authority, that would reasonably be expected to become the basis for a Contributor Event.
f) Contributor Knowledge and Risks of Project. Contributor has sufficient knowledge, expertise and experience in business, technology and financial matters, including a sufficient understanding of blockchain or cryptographic tokens and other digital assets, smart contracts, storage mechanisms (such as digital or token wallets), blockchain-based software systems and blockchain technology, to be able to evaluate the risks and merits of Contributor’s acquisition of HITC Tokens, including without limitation to the matters set forth in this Agreement, and is able to bear the risks thereof, including loss of all amounts paid, loss of HITC Tokens, and liability to the HIT Foundation, any of its directors, officers, employees, agents, (sub-)contractors, affiliates etc. and others for its acts and omissions, including without limitation those constituting breach of this Agreement, negligence, fraud or willful misconduct. Contributor has obtained sufficient information, also by consulting with legal, investment, tax, accounting and other advisors and experts, in order to make an informed decision to acquire HITC Tokens.
g) Funds; Payments. The funds Contributor uses to purchase HITC Tokens, including any fiat, virtual currency or cryptocurrency, are not derived from or related to any unlawful activities, including but not limited to money laundering or terrorist financing.
h) Anti-Money Laundering; Counter-Terrorism Financing. To the extent required by Applicable Laws, Contributor has complied with all anti-money laundering and counter-terrorism financing requirements, and has provided all the information as set forth in this Agreement truly and comprehensively.
i) Sanctions Compliance. Neither Contributor, nor any person having a direct or indirect beneficial interest in Contributor or HITC Tokens being acquired by Contributor, 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.
Contributor Acknowledgments and Consents
Contributor grants the following acknowledgments and consents:
a) Procedures for Acquisition. By acquiring HITC Tokens, Contributor acknowledges, understands and agrees to the procedures set forth on HIT Foundation's website for acquiring HITC Tokens. Contributor acknowledges and understands that: (i) failure to use the website and follow such procedures will result in Contributor’s failure to receive HITC Tokens, (ii) Contributor will lose some or all of the amounts paid for HITC Tokens, and (iii) the receipt or acquisition of HITC Tokens through any other means is not sanctioned or agreed to in any way by HIT Foundation.
b) HIT Foundation’s Use of Proceeds. Contributor acknowledges, understands and agrees that the proceeds from the sale of the HITC Tokens may be utilized by HIT Foundation in its sole discretion, as further described and detailed in the HIT Terms. Contributor further consents to the participation of HIT Foundation’s past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors and service providers in the purchase of HITC Tokens, including people who may work on the development and implementation of the Project or who may work for HIT Foundation’s future businesses that HIT Foundation may establish with a portion of the proceeds from the Token Distribution.
c) No Offering of Investment, Securities, Commodities, or Swaps. Contributor acknowledges and understands that: (i) the sale of HITC Tokens and the HITC Tokens themselves have not been registered as investments, currencies, securities, commodities, swaps on a currency, security or commodity, or a financial asset or instrument of any kind; (ii) purchases and sales of HITC Tokens are not subject to the protections of any laws governing those types of financial instruments; and (iii) this Agreement and all other documents referred to in this Agreement, including the HIT Terms, do not constitute a prospectus (unless it is explicitly mentioned) or offering document, and are not an offer to sell, nor the solicitation of an offer to buy an investment, a currency, a security, commodity, or a swap on either a security or commodity or a financial asset or instrument of any kind.
Contributor Acknowledgments of Risks
Contributor has carefully reviewed, acknowledges, understands and assumes the following risks, as well as all other risks associated with the HITC Tokens (including those not discussed herein), all of which could render the HITC Tokens worthless or of little value:
a) Basis for Purchase. Purchasing HITC Tokens is at Contributor’s sole risk, and the HITC Tokens are each provided, used and acquired on an “AS IS” and on an “AS AVAILABLE” basis without representations, warranties, promises or guarantees whatsoever of any kind by HIT Foundation. Contributor must rely on its own examination and investigation thereof.
b) No Rights, Functionality or Features. HITC Tokens have no rights, uses, purpose, attributes, functionalities or features, express or implied, outside the Project. Accordingly, no representations or warranties of title, non-infringement, merchantability, usage, suitability or fitness for any particular purpose, or as to the workmanship or technical coding thereof, or the absence of any defects therein, whether latent or patent, are given by HIT Foundation.
c) Purchase Price Risk. There are no guarantees as to the price of HITC Tokens acquired by Contributor, and no guarantees that the price per HITC Token determined by the market will be equal to or higher. There is the possibility that the price per HITC Token may fall below the price paid by initial Contributors for HITC Tokens during the initial distribution period. HIT Foundation reserves the right to change the duration of any timeframe for the distribution of HITC Tokens, including without limitation the unavailability or non-functionality of its website or other unforeseen procedural or security issues.
d) Ledger. Transactions may be delayed or lost due to operational error or malicious attacks by third parties. Contributor acknowledges and understands that the last-closed ledger may not include Contributor’s transaction when Contributor wants or expects and that Contributor’s transaction may be excluded or discarded entirely.
e) Ability to Transact or Resell. Contributor may be unable to sell or otherwise transact in HITC Tokens at any time, or for the price Contributor paid due to (a) diminution in value of the HITC Tokens; or (b) lack of liquidity for the HITC Tokens.
f) Token Security. HITC Tokens may be subject to expropriation and or/theft. Hackers or other malicious groups or organizations may attempt to interfere with the HITC Tokens and the HIT platform in a variety of ways, including, but not limited to, malware attacks, denial of service attacks, consensus-based attacks, Sybil attacks, smurfing and spoofing. Furthermore, because the HIT platform rests on open source software and HITC Tokens are based on open source software, there is the risk that their protocol may contain intentional or unintentional bugs or weaknesses which may negatively affect the HITC Tokens or result in the loss of Contributor’s HITC Tokens, the loss of Contributor’s ability to access or control Contributor’s HITC Tokens or the loss of any other assets in Contributor’s account. In the event of such a software bug or weakness, there may be no remedy, and holders of HITC Tokens are not guaranteed any remedy, refund or compensation.
g) Access to Private Keys. HITC Tokens acquired by Contributor may be held by Contributor in Contributor’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 Contributor’s digital wallet or vault storing HITC Tokens may result in loss of such HITC Tokens, access to Contributor’s Token balance or any balances in blockchains created by third parties. 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 Contributor uses, may be able to misappropriate Contributor’s HITC Tokens. HIT Foundation is not responsible for any such losses.
h) New Technology. The Project and all of the matters set forth in the HIT Terms are new and untested. The Project might not be capable of completion, implementation or adoption. Even if the Project is completed, implemented and adopted, it might not function as intended, and any tokens associated with a blockchain adopting the Project may not have functionality that is desirable or valuable.
i) Tax Consequences. Acquisition and receipt of HITC Tokens may have tax consequences for Contributor. Contributor is solely responsible for compliance with Contributor’s tax obligations.
j) Reliance on Third-Parties. Even if completed, the Project may rely, in whole or partly, on third parties to adopt and implement it and to continue to develop, supply, and otherwise support it. There is no assurance or guarantee that those third parties will complete their work, properly carry out their obligations, or otherwise meet anyone’s needs, all of which might have a material adverse effect on the Project.
k) Failure to Map a Public Key to Contributor’s Account. Failure of Contributor to map a public key to Contributor’s account may result in third parties being unable to recognize Contributor’s HITC Token balance.
l) Changes to the Project. The Project is under constant development and may undergo significant changes over time. Although HIT Foundation intends for the Project to have the features and specifications set forth in the White Paper and any other HIT Terms, HIT Foundation may make changes to such features and specifications for any number of reasons, any of which may mean that the Project does not meet Contributor’s expectations. As a result: the Project may not be completed as initially proposed by HIT Foundation, and in a different or modified form.
m) Project Completion. The development of the Project may be abandoned for a number of reasons, including without limitation the lack of interest from the public, lack of funding, lack of commercial success or prospects, or departure of key personnel.
n) Lack of Interest. Even if the Project is finished, launched and adopted, the ongoing success of the Project relies on the interest and participation of third parties. There can be no assurance or guarantee that there will be sufficient interest or participation in the Project.
o) Uncertain Regulatory Framework. The regulatory status of cryptographic tokens, digital assets and blockchain technology is unclear or unsettled in many jurisdictions. It is difficult to predict how, when or whether governmental authorities may regulate such technologies. It is likewise difficult to predict how, when or whether any governmental authority may make changes to existing laws, regulations or rules that may affect cryptographic tokens, digital assets, blockchain technology and its applications. Such changes could negatively impact HITC Tokens in various ways, including, for example, through a determination that HITC Tokens are regulated financial instruments that require registration. HIT Foundation may cease the distribution of HITC Tokens, the development of the Project or cease operations in a jurisdiction in the event that governmental actions make it unlawful or commercially undesirable to continue to do so.
p) Risk of Government Action. The industry in which HIT Foundation operates is heavily regulated and the Project is new. It may thus be subject to heightened oversight and scrutiny, including investigations or enforcement actions. There can be no assurance that governmental authorities will not examine the operations of HIT Foundation or pursue enforcement actions against HIT Foundation. Such governmental activities may or may not be the result of targeting HIT Foundation in particular. All of this may subject HIT Foundation to judgments, settlements, fines or penalties, or cause HIT Foundation to restructure its operations and activities or to cease offering certain products or services, all of which could harm HIT Foundation’s reputation or lead to higher operational costs, which may in turn have a material adverse effect on the HITC Tokens or the development of the Project.