Digital Asset Executory Contract
Property of NEX Network IO LLC
All rights reserved
Last modified: 25 June 2024
DISCLAIMER —
Capitalized terms used in this Agreement shall have the meanings assigned to them hereunder.
PLEASE READ THIS CONTRACT (COLLECTIVELY, THE “SYNDICATED DIGITAL ASSET FORWARD EXECUTORY CONTRACT” or the “AGREEMENT”) CAREFULLY BEFORE PARTICIPATING IN ANY NEX NETWORK IO LLC (“NXN”). THIS AGREEMENT IS A CONTRACT THAT GOVERNS OVER-THE-COUNTER SALES OF FUNCTIONAL ERC-20 UTILITY TOKENS, NAMELY, THE NXN TOKEN (“NXN TOKEN”) AND THE ERC-20 NXN ENERGY TOKEN (“ENERGY TOKEN” OR “ENERGY”) (each, a “NXN TRANSACTION”). EACH NXN TRANSACTION IS A SYNDICATED DIGITAL ASSET EXECUTORY CONTRACT THAT, AMONG OTHER THINGS, PROVIDES THE COUNTERPARTY WITH THE RIGHT TO PURCHASE THE NXN UTILITY TOKEN AND OR THE ENERGY TOKEN and INCLUDES CERTAIN LIMITATIONS ON TRANSFERABILITY, SALE, RE-SALE, HYPOTHECATION, OR ANY SIMILAR ENCUMBRANCE, TO ENSURE, AMONG OTHER THINGS, THAT EACH COUNTERPARTY IS NOT DEEMED AN UNDERWRITER FOR PURPOSES OF THE NXN TRANSACTION; TO ENSURE THAT THIS CONTRACT AND THE NXN TRANSACTION DOES NOT CONSTITUTE A SALE OF AN UNREGISTERED SECURITY; AND TO ENSURE THAT THIS CONTRACT AND THE NXN TRANSACTION DOES NOT CONSTITUTE A SALE OF AN UNREGISTERED COMMODITY. BY PARTICIPATING IN THE NXN TRANSACTION, YOU HEREBY AGREE TO BE BOUND BY THE COVENANTS, TERMS, CONDITIONS, AND OBLIGATIONS SET FORTH IN THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE COVENANTS, TERMS, CONDITIONS, AND OBLIGATIONS SET FORTH IN THIS AGREEMENT, DO NOT PARTICIPATE IN ANY NXN TRANSACTION, AND IF YOU ARE PRESENTED WITH THE OPTION TO “AGREE” OR “DISAGREE” TO THE TERMS, CLICK “DISAGREE”.
This Agreement is a CONTRACT between You, as a Person, either individually or on behalf of any other Person(s), and NXN, which covers Your participation in any NXN Transaction that forms the purpose of this Agreement. Each time You participate in any NXN Transaction or “click through” or “scroll through” this Agreement, You are agreeing (or once again agreeing) to all its covenants, terms, conditions, and obligations. By participating in any NXN Transaction, or by “clicking through” or “scrolling through” this Agreement, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS COVENANTS, TERMS, CONDITIONS, AND OBLIGATIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND ONLY STATEMENT OF THE AGREEMENT BETWEEN YOU AND NXN WITH RESPECT TO ANY NXN TRANSACTION, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN NXN RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
SUBJECT TO SECTION 6(e) OF THIS AGREEMENT, THIS AGREEMENT IS SUBJECT TO, GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND READ IN CONJUNCTION WITH, THE UNIFORM ELECTRONIC TRANSACTIONS ACT, AS AMENDED, MICHIGAN COMPILED LAWS §§ 450.831-.849 (“UETA”), AND THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, AS AMENDED, 15 UNITED STATES CODE §§ 7001-7005 (“E-SIGN”).
NOTE: This Contract template may not be used to reproduce, modify, publish, or distribute materials, either in whole or in part, in any instance, without the express written consent of NXN. By participating in the NXN Transaction, NXN does not license to you in any respect this Agreement template for reproduction, modification, publication, or distribution. If you are uncertain about your right to copy, modify, publish, or distribute any material, you should contact your legal advisor.
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NOTICE TO RESIDENTS OF THE UNITED STATES
THE OFFER AND SALE OF NXN TOKEN AND OR ENERGY TOKEN UNDER THIS INSTRUMENT HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THE NXN TOKEN AND OR THE ENERGY TOKEN, UNDER THIS INSTRUMENT OR OTHERWISE, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED, ENCUMBERED, OR HYPOTHECATED, EXCEPT AS PERMITTED UNDER APPLICABLE LAW AND PURSUANT TO AN APPLICABLE EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION.
[International legends may be updated as appropriate for NXN Transactions]
NOTICE TO RESIDENTS OF CANADA
EXCEPT AS OTHERWISE SET FORTH IN A SIGNED WRITING BETWEEN COMPANY AND COUNTERPARTY, COUNTERPARTY MUST NOT TRADE, SELL, TRANSFER, HYPOTHECATE, OR OTHERWISE, THE NXN TOKEN AND OR THE ENERGY TOKEN UNDER THIS INSTRUMENT OR OTHERWISE BEFORE THE DATE THAT THE ISSUER BECOMES A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY.
NOTICE TO RESIDENTS OF CHINA
THE RIGHTS UNDER THIS INSTRUMENT ARE NOT BEING OFFERED OR SOLD AND MAY NOT BE OFFERED, TRANSFERRED, SOLD, HYPOTHECATED, OR OTHERWISE, DIRECTLY OR INDIRECTLY, IN ANY INSTANCE, WITHIN THE PEOPLE’S REPUBLIC OF CHINA.
NOTICE TO RESIDENTS OF THE UNITED KINGDOM
TO THE EXTENT APPLICABLE, IN THE UNITED KINGDOM, THIS INSTRUMENT IS BEING DISTRIBUTED ONLY TO, AND IS DIRECTED ONLY AT (AND ANY INVESTMENT ACTIVITY TO WHICH IT RELATES WILL BE ENGAGED ONLY WITH): (i) INVESTMENT PROFESSIONALS (WITHIN THE MEANING OF ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 AS AMENDED (THE ‘‘FPO’’)); (ii) PERSONS OR ENTITIES OF A KIND DESCRIBED IN ARTICLE 49 OF THE FPO; (iii) CERTIFIED SOPHISTICATED INVESTORS (WITHIN THE MEANING OF ARTICLE 50(1) OF THE FPO); AND (iv) OTHER PERSONS TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS ‘‘RELEVANT PERSONS’’).
THIS INSTRUMENT HAS NOT BEEN APPROVED BY AN AUTHORISED PERSON. ANY SYNDICATION TO WHICH THIS DOCUMENT RELATES IS AVAILABLE ONLY TO (AND ANY SYNDICATION ACTIVITY TO WHICH IT RELATES WILL BE ENGAGED ONLY WITH) RELEVANT PERSONS. THIS INSTRUMENT IS DIRECTED ONLY AT RELEVANT PERSONS AND PERSONS WHO ARE NOT RELEVANT PERSONS SHOULD NOT TAKE ANY ACTION BASED UPON THIS INSTRUMENT AND SHOULD NOT RELY ON IT. IT IS A CONDITION PRECEDENT OF YOU BEING SUBJECT TO AND BOUND BY THIS INSTRUMENT THAT YOU REPRESENT AND WARRANT TO NXN THAT YOU ARE A RELEVANT PERSON.
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NXN Token
Digital Asset Executory Contract
THIS CERTIFIES THAT, for good and valuable consideration, the receipt and sufficiency of which are hereby expressed acknowledged, the mutual covenants, obligations, terms, and conditions contained in this Agreement, the Counterparty (the “Counterparty”) will remit payment to NXN (the “Company”) in the amount of the total principal monies allocated by Counterparty (the “Total Amount”) to acquire certain units of NXN Token and or the Energy Token to consummate the NXN Transaction, in whole or in part, made and entered into on or about the date the Counterparty remits such payment to Company (the “Effective Date”) by the means described in this Agreement or Company’s Documentation. Counterparty and Company may be referred to in this Agreement individually as a “Party” or collectively as “Parties” or any similar term or analog.
1. Events
(a) NXN Token Launch. Counterparty may acquire NXN Token and or the Energy Token for good and valuable consideration on the NXN platform. Counterparty expressly acknowledges and agrees that its right to acquire NXN Token and or the Energy Token, with rewards from the date of acquisition, in the NXN Transaction as contemplated by this Agreement is contingent upon Counterparty’s ability to claim its rewards in its sole and absolute discretion, as more particularly described in NXN’s Documentation. In connection therewith, Counterparty and Company expressly acknowledge and agree that:
(i) The Counterparty will execute and deliver to the Company any and all other transaction documents related to this Agreement to give full legal force and effect to this Agreement; and
(ii) The Counterparty will provide to the Company an Authentic digital wallet address for which to allocate Counterparty's NXN Token and or Energy Token upon issuance and distribution by Company, or as otherwise communicated by Company to Counterparty from time to time via the Company’s Website (as that term is defined in Section 6(g) of this Agreement).
(b) Termination; Dissolution Event. If this Agreement is terminated by either Party, or if there is Dissolution Event (as that term is defined, herein), prior to Company’s distribution of NXN Token and or Energy Token, the Company will remit to Counterparty the total monies paid by Counterparty to Company as contemplated under this Agreement for the NXN Transaction (the “Total Amount”). If immediately prior to the consummation of the Dissolution Event, the assets of the Company that remain legally available for distribution to the Counterparty and all holders of all other NXN Token and or Energy Token under this Agreement (the “Dissolving Counterparty(ies)”), as determined in good faith by the Company’s managing members, are insufficient to permit the payment to the Dissolving Counterparties of their respective Total Amounts, then the remaining assets of the Company legally available for distribution, following all distributions to the holders of the Company’s membership interests, will be distributed with equal priority and pro rata among the Dissolving Counterparties in proportion to the Total Amounts it/they would otherwise be entitled to receive pursuant to this Agreement. Any distributed amounts shall be in USD Coin (USDC) or Tether (USDT), or as otherwise determined by Company, in its sole and absolute discretion. For the avoidance of doubt, a Dissolution Event (as that term is defined herein) does not include a change of control of the Company, an assignment of assets and or liabilities, either in whole or in part, for or on behalf of the Company to any successor entity or for the benefit of its creditors.
(c) Termination. This Agreement may terminate upon a Dissolution Event prior to, during, or after the distribution of any NXN Token or Energy Token. Notwithstanding the foregoing or anything to the contrary herein or otherwise, Company shall have the right and, if Company so chooses in its sole and absolute discretion, the elective obligation to repay to Counterparty that participated in the NXN Transaction, the Total Amount for the NXN Transaction (as those capitalized terms are defined herein), denominated in fiat currency or any digital asset, subject to Company’s sole and absolute discretion, not to be unreasonably withheld, conditioned, or delayed.
2. Definitions
“Applicable Law” means (and may include, but is not limited to), any applicable statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government, regulatory or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction, including, but not limited to, U.S. export control laws, anti-corruption laws, U.S. Foreign Corrupt Practices Act, U.S. Bank Secrecy Act, U.S. Patriot Act, E.U. anti-money laundering directives, U.K Bribery Act, U.K. Money Laundering, Terrorist Financing, and Transfer of Funds (Information on the Payer) Regulations 2017, U.K. Money Laundering and Terrorist Financing (Amendment) Regulations 2019, U.K. Sanctions and Anti-Money Laundering Act of 2018, Brazil Clean Company Act, France Anti-Corruption Agency AFA Sapin II, U.K. Modern Slavery Act, Australia’s Modern Slavery Act, California Transparency in Supply Chains Act, Uyghur Forced Labor Participation Act, German Supply Chain Due Diligence Act, France Duty of Vigilance Law, U.K. Proceeds of Crime Act, The International Traffic in Arms Regulation, The Foreign Trade Regulations, data privacy laws, rules, and regulations, and any economic and trade directives, sanctions, or memoranda from the Office of Foreign Assets Control of the United States Department of the Treasury.
“Authentic,” “Authenticate,” “Authenticity,” “Authenticating,” or “Self-Authenticating,” or any similar term or combination thereof, means a record generated by an electronic process or system (including by or on behalf of any consensus mechanism), or data copied from an electronic device, storage medium, file, node, validator, or otherwise, related to, derived from, or dependent on, any blockchain technology, distributed ledger technology, infrastructure, platform, or service, directly or indirectly, that is Self-Authenticating, in whole and in part, without reliance upon, input for, or testimony from, any Person who would otherwise be required to meet the procedural and substantive requirements to Authenticate certified electronic records under Applicable Law.
“Claim” means any action, cause of action, claim, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, in contract, or otherwise, asserted by Counterparty and or any third party.
“Confidential Information” means any information: (i) disclosed by one Party to the other Party, in each instance, directly or indirectly, in writing, orally or by inspection of tangible or intangible objects, including, but not limited to, algorithms, business plans, customer data, customer lists, customer names, design documents, drawings, engineering information, financial analysis, forecasts, formulae, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, documentation, software, source code, object code, Intellectual Property Rights, including patents, copyrights, trademarks, trade dress, or any other proprietary information, including trade secrets (as that term is defined under the Uniform Trade Secrets Act, as amended), which may be designated as “confidential,” “proprietary,” or some similar designation (the “Marked Materials”); and (ii) any other information otherwise obtained, in each instance, directly or indirectly by either Party under this Agreement through inspection, review, or analysis of the Marked Materials in accordance with the terms and conditions set forth herein or as otherwise permitted by Applicable Law.
“Dissolution Event” means (i) a voluntary termination and winding up of operations of the Company, (ii) a general assignment for the benefit of the Company’s creditors or (iii) any other liquidation, dissolution or winding up of the Company, whether voluntary or involuntary; provided, however, that any change of control event, assignment of beneficial ownership, or assignment of tangible and or intangible property rights (including Intellectual Property Rights and or Confidential Information) does not constitute a Dissolution Event for purposes of this Agreement.
“Documentation” means any manuals, instructions, or other documents or materials that Company provides or makes available to Counterparty, in any form or medium, including, but not limited to, Company’s Website, and which describe the functionality, components, features, or requirements of products, services, and or systems to be used, licensed, performed, purchased, and or sold to You or any other Person, including, but not limited to, any aspect of installation, configuration, integration, operation, use, support, or maintenance thereof.
“Harmful Code” means any software, hardware, or other technology device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (i) permit unauthorized access to, or destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (A) computer, software, firmware, hardware, system, or network, or (B) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby, or (ii) prevent any third party from accessing or using Company’s services, products, and or systems as contemplated by the Parties under this Agreement.
“Industry Standard Safeguards” means those safeguards widely accepted by information security professionals as necessary to reasonably protect sensitive data during storage, processing, and transmission, consistent with the sensitivity of and widely recognized threats to such data, designed to protect the physical security of its network and infrastructure and telecommunications systems for transmission interception and damage. Examples of Industry Standard Safeguards include those practices described in ISO 27001/27002, OWASP Guide to Building Secure Web Applications, and the various Center for Internet Security Standards.
“Intellectual Property Rights” or “IP Rights” means any and all registered and unregistered rights, granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, including Confidential Information and all similar or equivalent rights or forms of protection, in the United States and its territories (subject to the Berne Convention for Actions that allege infringement of Intellectual Property Rights outside the United States and its territories).
“Instance” means one session or use of software that permits access to substantially all the functionality of the products and or services regardless of whether all the functionality of the products and or services are actually used. No pooling or multiplexing (such as permitting multiple sessions through use of a Citrix server or similar system or application) will reduce the number of Instances of the products and or services. An Instance exists whenever the products and or services are loaded on a computer (or proxy for a computer as in the case of pooling or multiplexing) and ready for immediate use, regardless of whether they are then actually being used. An Instance will continue to exist until it is actually closed and is no longer actively available on a computer or proxy, therefore.
“NXN Launch” means any Company product launch that relates to, derives from, or otherwise relies upon, any NXN Transaction, pursuant to which the Counterparty may acquire NXN Token and or the Energy Token, for good and valuable consideration; provided, however, that the term, NXN Launch, does not include any syndication of NXN Token or Energy Token available to, solicited from, or targeted to the general public by or on behalf of Company, in any instance, directly or indirectly, involving Company and or any third party, without Company’s prior written consent; nor does NXN Launch constitute a sale of a security or investment contract (as those terms are defined by Applicable Law). The defined term, NXN Launch, derives from, relates to, and is dependent on, the classification of this Agreement as a digital asset executory contract for a digital asset that affords the Counterparty the right to acquire functional NXN Token or Energy Token, with the sole expectation of the rate of return dependent on Counterparty’s ability to claim rewards, as expressly agreed to by Counterparty and Company.
“Non-Fungible Token” or “NFT” means a unique cryptographic key contained within a digital token that is used to verify the Authenticity of the content file.
“Personal Information” means information that Counterparty or any Person provides access to either Party under this Agreement, or information which the disclosing Party creates or obtains on behalf of any third party, subject to the terms and conditions of this Agreement, that (i) directly or indirectly identifies any Person (including, for example, names, signatures, addresses, telephone numbers, email addresses, and or other unique identifiers), (ii) can be used to Authenticate any natural person, including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, IP addresses, biometric, genetic, answers to security questions, or other personal identifiers; provided, however, that any third party contact information is not by itself Personal Information.
“Person” means any natural person, individual, proprietorship, corporation, partnership, limited liability entity, joint venture, governmental authority, unincorporated association, trust, association, or other entity.
“Syndication” means the NXN Transaction—an over-the-counter sale of the NXN Token and or Energy Token acquired by Counterparty for good and valuable consideration, subject to the covenants, conditions, terms, obligations, and restrictions set forth in this Agreement.
3. Company Representations
(a) The Company is duly organized, validly existing and in good standing under the laws of its state of incorporation, and has the power and authority to own, lease and operate its properties and carry on its business as now conducted.
(b) The execution, delivery, and performance by the Company of this Agreement is within the power of the Company and, other than with respect to the actions to be taken when Counterparty acquires NXN Token and or Energy Token, has been duly authorized by all necessary actions on the part of the Company. This Agreement constitutes a digital asset executory contract; an enforceable, over-the-counter legal contract that contains mutuality of legal, valid, and binding obligations of the Company and the Counterparty, as applicable, enforceable against each of the Parties hereto in accordance with its terms. To the knowledge of the Company, it is not in violation of (i) its current articles of organization or bylaws, (ii) any Applicable Law applicable to the Company, or (iii) any material indenture or contract to which the Company is a party or by which it is bound, where, in each case, such violation or default, individually, or together with all such violations or defaults, will proximately cause material adverse effects on the Company in the ordinary course of business operations.
(c) To the knowledge of the Company, the performance and consummation of the NXN Transaction contemplated by this Agreement constitutes a digital asset executory contract (as that term may be defined by Applicable Law) and do not and will not: (i) constitute a sale of a security or an investment contract (as those terms are defined by Applicable Law); (ii) violate any material judgment or Applicable Law applicable to the Company (including U.S. federal securities laws, rules, and regulations); (iii) result in the acceleration of any material indenture or contract to which the Company is a party or by which it is bound; or (iv) result in the creation or imposition via final, non-appealable judicial decree, order, or mandate with prejudice of any lien upon any property, asset or revenue of the Company or the suspension, forfeiture, or non-renewal of any material permit, license, or authorization, applicable to the Company, its business or operations.
(d) No consents or approvals are required in connection with the performance of Company’s obligations under this Agreement other than the Company’s corporate approvals.
(e) To its knowledge, the Company owns or possesses (or can obtain on commercially reasonable terms) sufficient legal rights to all Intellectual Property Rights for its business operations as now conducted and as currently proposed to be conducted. NXN Token and Energy Token are trade secrets of Company (as that term is defined under the Uniform Trade Secrets Act, as amended).
(f) Company represents and warrants that it has the requisite ability to manage the NXN platform and Website by which Counterparty may acquire NXN Token and or Energy Token as mutually agreed by the Parties.
4. Counterparty Representations
(a) The Counterparty represents and warrants that it possesses full capacity, power, and authority under Applicable Law to enter into this Agreement, and that this Agreement constitutes a valid and binding legal contract, with mutuality of obligations of the Parties, enforceable in accordance with its terms, conditions, covenants, and obligations, except as limited by this Agreement or Applicable Law.
(b) The Counterparty represents and warrants that (1) it has been advised that this Agreement is a digital asset executory contract to govern the over-the-counter sale of a digital asset certificate of deposit and or native utility token that do not constitute a security, investment contract, sale of an unregistered security, or sale of an unregistered commodity; (2) that this Agreement has not been registered under any Applicable Law and, therefore, neither this Agreement nor any of its rights, duties, or obligations hereunder, can be sold, transferred, pledged, hypothecated, encumbered, or otherwise, except in strict compliance with the covenants, terms, and conditions of this Agreement and Applicable Law; and (3) Counterparty is acquiring NXN Token and or Energy Token under this Agreement for its own account for a nominal rewards rate-of-return, dependent solely on the efforts of Counterparty to claim its rewards, as described in this Agreement (including Company’s Documentation), and not as a security, commodity, derivative, investment contract, or anything related thereto, nor as a nominee or agent.
(c) The Counterparty represents and warrants that (1) it has such knowledge and experience and is generally capable of evaluating the merits and risks of any NXN Transaction hereunder; (2) it is able to incur a complete loss of any monies (total purchase price, rewards, or otherwise) to consummate the NXN Transaction without impairing the Counterparty’s financial condition; and (3) it is able to bear the economic risk for performing its obligations under this Agreement in relation to the NXN Transaction for an indefinite period of time.
(d) The Counterparty represents and warrants that it will not, nor does it expect, and no reasonable Person under the same or similar circumstances would expect, to profit from the efforts of Company and or its employees, directors, officers, representatives, agents, or otherwise, either by or through Company’s efforts to develop, market, commercialize, sell, hypothecate, pledge, encumber, or otherwise, any NXN Token and or Energy Token under this Agreement.
(e) The Counterparty represents and warrants that (1) it will comply in all respects with Applicable Law; (2) it will not misappropriate the Intellectual Property Rights of Company or any third party; (3) it will maintain the financial wherewithal to perform its duties and obligations under this Agreement; (3) it will not introduce, directly or indirectly, in any instance, any Harmful Code to Company’s Website, hardware, software, networks, infrastructure, devices, or otherwise; (4) it expressly acknowledges and agrees that Company’s Documentation is a full, fair, and accurate representation of the NXN Transaction, the material facts that underpin the NXN Transaction, as governed by the terms and conditions of this Agreement; (5) it expressly acknowledges and agrees that it will implement, use, and maintain Industry Standard Safeguards; and (7) it expressly acknowledges, agrees, and understands that NXN Token and Energy Token do not constitute the sale of a security, commodity or derivative related thereto (registered or otherwise) nor does this Agreement constitute a an investment contract related to the over-the-counter purchase of NXN Token and or Energy Token.
5. Procedures for Purchase of Rights and Valuation of Total Amount
(a) The Company will accept payment for the Counterparty’s acquisition of NXN Token and or Energy Token under this Agreement in digital assets as follows; namely, USDC, DAI, and ETH on the BASE Network, , or as otherwise determined by Company in its sole and absolute discretion and communicated to Counterparty from time to time in accordance with the terms of this Agreement. Counterparty shall make the required payment to the Company through the procedures established by Company from time to time, including, but not limited to, Company’s Website and or Company’s Documentation. Company is not responsible for any administrative, procurement, transmission, authentication, authorization, or settlement fees or expenses borne out of any payment or remittance of monies to Company related to, derived from, or dependent on, the NXN Transaction.
(b) For purposes of this Agreement, the value of the Total Amount shall be deemed in any digital asset value as determined by the Company in its sole and absolute discretion provided however that Counterparty remits payment for the NXN Token and or Energy Token hereunder in the manner, value, and type of asset(s) as set forth in Section 5(a) of this Agreement (each, a “Currency”), valued at the Applicable Exchange Rate for the Currency then-existing as of the date and time of the last transaction confirmation as evidenced by block explorer or any other similar analog. The term “Applicable Exchange Rate” shall mean the volume-weighted average daily price of the Currency across at least three (3) exchange(s)/index(es) (such as, but not exclusively, Binance.US, Coinbase, Crypto.com, Bitcoin.com) in the 24-hour period (Eastern Time) following the day that the Company has accepted Counterparty’s offer to close the NXN Transaction.
6. Miscellaneous
(a) This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein, and supersedes all prior or contemporaneous disclosures, discussions, understandings, and agreements, whether oral of written, between them. This Agreement governs the NXN Transaction, or any series of similar NXN Transactions, entered into by the Company and Counterparty from time to time.
(b) Any notice required or permitted by this Agreement will be deemed effectively given: (i) when received, if delivered by hand, with signed confirmation of receipt; (ii) when received, if sent by a nationally recognized overnight courier, signature required; (iii) when sent, if by facsimile or electronic mail, in each case, with confirmation of transmission, if sent during the addressee’s normal business hours of operation, and on the next business day, if sent after the addressee’s normal business hours of operation; (iv) on the fifth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid; and (v) by delivering Self-Authenticating electronic records (including, but not limited to, any Non-Fungible Token, regardless of digital token standard) to the Authentic digital wallet address provided by Counterparty or otherwise known by Company, for purposes of receiving any written, electronic, or otherwise, communication under this Agreement.
(c) The Counterparty is not entitled, either by acquiring NXN Token and or Energy Token hereunder or as a party to this Agreement, to vote, govern, or be deemed the holder of any membership interest of the Company for any purpose, nor will anything contained herein be construed to confer on the Counterparty, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors, managing members, or otherwise, or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action or to receive notice of meetings, or to receive subscription rights or otherwise.
(d) Neither this Agreement, nor the rights, duties, and obligations contained herein, may be assigned, by operation of law, equity, contract, or otherwise, by Counterparty, without the prior written consent of Company; provided, however, that this Agreement and/or the rights, duties, and obligations contained herein may be assigned without the Counterparty’s consent by the Company to any other entity who directly or indirectly, controls, is controlled by, or is under common control with, the Company, including, without limitation, any general partner, managing member, officer or director of the Company, alternative entity series company, trust or corporation, or any accredited investor, venture capital fund, or otherwise, now or hereafter existing, which is controlled by one or more general partners or managing members of, or shares the same management company with, the Company; and provided, further, that the Company may assign this Agreement (or any of its duties or obligations hereunder), either in whole or in part, in any instance, directly or indirectly, without the consent of the Counterparty, in connection with an assignment of its executory obligations, changes of control, or reorganization.
(e) In the event any one or more of the provisions of this Agreement is/are for any reason held to be invalid, illegal or unenforceable, either in whole or in part, or in the event that any one or more of the provisions of this Agreement operate or would prospectively operate to invalidate this Agreement ab initio, then and in any such event, such provision(s) only will be deemed null and void and will not affect any other provision of this Agreement and the remaining provisions of this Agreement will remain operative and in full legal force and effect and will not be affected, prejudiced, or disturbed thereby.
(f) This Agreement and all rights, duties, and obligations hereunder will be governed by and construed in accordance with the laws of the state of Michigan without regard to its conflicts of law provisions. Any demand, suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the United States District Court for the Eastern District of Michigan. Each party irrevocably submits to the exclusive jurisdiction of such court in any Claim that relates to, derives from, or depends on, this Agreement. Each party irrevocably waives the defense of forum non conveniens to the maintenance of any such Claim in such venue.
(h) NXN may modify this Agreement (including the NXN Terms of Use, either in whole or in part) at any time by posting a revised version on the NXN Website or by otherwise notifying Counterparty in accordance with the terms and conditions set forth in this Agreement; provided, however, that NXN will provide at least thirty (30) days’ advance notice for any material changes to this Agreement. Subject to the 30-day advance notice requirement with respect to material changes to this Agreement, the modified terms will become effective upon posting or, if NXN notifies Counterparty by electronic means, including, but not limited to, electronic mail as stated in the e-mail message, or by delivering an NFT to Counterparty’s Self-Authenticating digital wallet address. By continuing to use the service offerings or otherwise participating in any NXN Transaction after the effective date of any modifications to this Agreement, Counterparty agrees to be bound by the modified terms. If is Counterparty’s responsibility to check the NXN Website regularly for modifications to this Agreement. NXN last modified this Agreement on the date listed in the header of each page of this Agreement.
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