PLEASE NOTE THAT U.S. PERSONS (WHICH, FOR PURPOSES OF THIS AGREEMENT, DOES NOT INCLUDE ACCREDITED INVESTORS PARTICIPATING IN THE TOKEN SALE PURSUANT TO THIS TOKEN PURCHASE AGREEMENT) MAY NOT PARTICIPATE IN THE TOKEN SALE.
TOKEN PURCHASE AGREEMENT
Last updated: October, 2018
This Token Purchase Agreement (this “Agreement”) contains the terms and conditions that govern your purchase of certain Ethereum-based ERC20-compatible CYBR tokens (“CYBR” or “Tokens”) during the CYBR Token Generation Event (the “Token Sale Period”) from CYBR, a Delaware corporation (the “Company”, “we” or “us”), and is an agreement between you or the entity that you represent (“Buyer” or “you”) and the Company. Buyer and the Company are herein referred to individually as a “Party” and collectively, as the “Parties.”
This Agreement takes effect when we receive payment from you in full for your Tokens. By purchasing Tokens from us during the Token Sale Period, you will be bound by this Agreement and all terms incorporated by reference.
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, the Company and Buyer agree as follows:
IMPORTANT INFORMATION: PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY.
Buyer acknowledges, understands and agrees:
PURCHASE OF TOKENS ARE NON-REFUNDABLE AND CANNOT BE CANCELLED.
BUYER MAY LOSE ALL AMOUNTS PAID.
TOKENS MAY HAVE NO VALUE.
THE COMPANY RESERVES THE RIGHT TO REFUSE OR CANCEL ANY TOKEN PURCHASE REQUESTS AT ANY TIME IN ITS SOLE DISCRETION.
PEOPLE WHO PURCHASE EARLIER THAN YOU MAY RECEIVE MORE TOKENS FOR THE AMOUNT PAID.
PLEASE READ CAREFULLY AND IN THEIR ENTIRETY THE RISKS SET FORTH IN EXHIBIT A.
SECTION 10.01 OF THIS AGREEMENT INCLUDES PRE-DISPUTE RESOLUTION, A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH, IF APPLICABLE TO YOU, AFFECT YOUR LEGAL RIGHTS.
ACCEPTANCE OF AGREEMENT; PURPOSE OF TOKENS; CANCELLATION
Buyer’s purchase of Tokens from the Company during the Token Sale Period is final, and there are no refunds or cancellations except as may be required by applicable law or regulation. The Company reserves the right to refuse or cancel Token purchase requests at any time in its sole discretion.
The Company shall allocate and distribute the Tokens (the “Token Distribution”) to buyers thereof in a manner consistent with the procedures and other instructions provided by the Company on the Website from time to time. Buyer shall follow the procedures set forth by the Company on the Website for purchasing Tokens. As a condition precedent to any sale by the Company of any Tokens, Buyer must have a wallet or other storage mechanism (“Wallet”) that supports the ERC20 token standard in order to receive any Tokens you purchase from the Company and Buyer must provide an accurate digital wallet address to the Company (the “Token Receipt Address”). The Company reserves the right to prescribe additional guidance regarding specific requirements with respect to a storage mechanism for the Tokens. We are not responsible for any delays, losses, costs, non-delivery of refunds or of Tokens, or other issues arising from your failing to provide a Token Receipt Address, or providing an inaccurate or incomplete Token Receipt Address. You acknowledge and understand the procedures set forth on the Website for purchasing Tokens, and that failure to use the Website and follow such procedures will result in your failure to receive Tokens and you will lose some or all of the amounts paid for the Tokens.
Buyer hereby consents to the participation of the Company’s and its affiliates’ and predecessors’ past, present and future employees, officers, directors, contractors, advisors, consultants, equityholders, suppliers, vendors and service providers in the purchase of Tokens, including people who may work on the development and implementation of the Network or who may work for the Company’s future businesses that the Company may establish with a portion of the proceeds from the Token Distribution.
NO OTHER RIGHTS CREATED
The purchase of Tokens: (a) shall 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; (b) shall not be deemed to be a loan to the Company; and (c) shall not provide Buyer with any ownership or other interest in the Company.
The Company shall retain all right, title and interest in all of the 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 shall not use any of the Company’s intellectual property for any reason without the Company’s prior written consent.
SECURITY AND DATA; TAXES AND FEES
The purchase price that you pay for Tokens is exclusive of all applicable taxes. You are responsible for determining what, if any, taxes apply to your purchase of Tokens, including, for example, sales, use, value added, and similar taxes. It is also your responsibility to withhold, collect, report and remit the correct taxes to the applicable tax authorities. You shall be solely responsible for compliance with any tax obligations arising from the purchase or receipt of Tokens. The Company is not responsible for withholding, collecting, reporting or remitting any sales, use, value added or similar tax arising from Buyer’s purchase of Tokens. The Company shall bear no liability or responsibility with respect to any tax obligation of Buyer in respect of the purchase and receipt of any Tokens.
REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to the Company that as of the Effective Date:
if you are affiliated with a non-U.S. banking institution (a “Foreign Bank”), or if you receive deposits from, make payments on behalf of, or handle other financial transactions:
ACKNOWLEDGEMENT AND ASSUMPTION OF RISKS
Buyer hereby acknowledges and agrees that there are risks associated with purchasing Tokens, holding Tokens and using Tokens for providing or receiving Services via the Network, as disclosed and explained in Exhibit A. BY PURCHASING TOKENS, YOU EXPRESSLY ACKNOWLEDGE AND ASSUME THESE RISKS.
LIMITATION OF LIABILITY
To the fullest extent permitted by applicable law, you release the Company and the other Company Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence) arising out of or related to disputes between you and the acts or omissions of third parties. You expressly waive any and all rights which you may have under California Civil Code § 1542, as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreement to this release. California Civil Code Section 1542 reads as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
DISPUTE RESOLUTION; ARBITRATION; GOVERNING LAW AND VENUE
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to conflict of law rules or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the Parties arising out of or relating to this Agreement that is not subject to arbitration or cannot be heard in small claims court will be resolved and filed only in the state or federal courts of the Commonwealth of Virginia and the United States, respectively, sitting in Manassas, VA. Buyer hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement.
Buyer shall not assign this Agreement without the prior written consent of the Company. Any assignment or transfer in violation of this Section 11.01 shall be null and void. The Company may assign this Agreement to an affiliate or successor. Subject to the foregoing, this Agreement, and the rights and obligations of the Parties hereunder, shall be binding upon and shall inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives.
This Agreement, including the Exhibit(s) 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 the Company about the Tokens or the Network.
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.
The Company may modify this Agreement at any time by posting a revised version on the Website, available at https://cybrtoken.io/. The modified terms shall become effective upon posting. It is Buyer’s responsibility to check the Website regularly for modifications to this Agreement. If we make changes, we will update the “Last Updated” date above.
The failure by the Company to exercise or enforce any right or provision of this Agreement shall not constitute a present or future waiver of such right or provision, nor limit the Company’s right to enforce such right or provision at a later time. All waivers by the Company must be unequivocal and in writing to be effective.
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. Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute, or be deemed to constitute, either Party the agent of the other Party for any purpose. No Party has, pursuant to this Agreement, any authority or power to bind or to contract in the name of the other Party. Except as otherwise provided herein, this Agreement is intended solely for the benefit of Buyer and the Company and is not intended to confer any third-party beneficiary rights upon any other person or entity.
Buyer agrees and acknowledges that all agreements, notices, disclosures and other communications that the Company provides Buyer pursuant to this Agreement or in connection with or related to Buyer’s purchase of Tokens, including this Agreement, may be provided by the Company, in its sole discretion, to Buyer, in electronic form.
In connection with this Agreement, Buyer will comply with all applicable import, re-import, export and re-export control and laws, regulations, guidance and programs, including the Export Administration Regulations and the International Traffic in Arms Regulations and country or individual-specific economic sanctions programs implemented by the Office of Foreign Assets Control. You are solely responsible for compliance related to your use of Tokens.
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