Terms and Conditions

Vivid Terms & Conditions

1. PREAMBLE

These Terms and Conditions form an agreement between you, or the entity you represent, (“You” or “Purchaser”) and Vivid and contain the terms and conditions by which you will purchase cryptographic digital utility tokens (“VIVID”) generated and recorded on the Ethereum blockchain in connection with the VIVID token generation event (“Token Generation”). These Terms and Conditions also set out the terms and conditions by which you may access the Vivid mobile application, online web-portal and social networking site (“System”).

Please read these Terms and Conditions carefully before accessing the Website (defined below) or System or purchasing VIVID. You agree that by clicking the “I Accept” button below, you accept and agree to be bound by these Terms and Conditions. If you have any questions regarding these Terms and Conditions, please contact Vivid at legal@vividtoken.com.

1.1 Important Information

You acknowledge, understand and agree that:

(a) You are subject to and bound by these Terms and Conditions by virtue of your purchase of VIVID;

(b) Purchases of VIVID are non-refundable and cannot be cancelled. You may lose all amounts paid;

(c) VIVID may have no value outside of the license to use the System;

(d) Vivid reserves the right to refuse or cancel VIVID purchase requests at any time in its sole discretion;

(e) Certain persons, including persons who purchase earlier than you, may receive more VIVID for the same amount paid;

(f) These Terms and Conditions includes a limitation of liability.

Nothing in these Terms and Conditions shall be deemed to constitute a prospectus of any sort, a solicitation for investment or investment advice nor does it in any way pertain to an offering or a solicitation of an offer to buy any securities in any jurisdiction. Vivid Parties (defined below) expressly disclaim any and all responsibility for any direct or consequential loss or damage of any kind whatsoever arising directly or indirectly from: (i) reliance on any information contained in these Terms and Conditions and the White Paper (defined below), (ii) any error, omission or inaccuracy in any such information or (iii) any action resulting therefrom.

Unless otherwise defined in these Terms and Conditions, capitalized terms will have the meanings given to them in the written Vivid White Paper, as it may be amended from time to time (“White Paper”).

2. AGREEMENT

2.1 Binding Agreement

These Terms and Conditions shall be effective and binding on all parties upon you clicking on the “I Accept” button below. By sending Ether, or other cryptocurrencies, to Vivid’s digital wallet address in accordance with the Token Purchase Instructions (as defined below), you agree to acquire VIVID at the relevant purchase price per VIVID set out on the Website or in the White Paper in accordance with the terms and conditions herein.

2.2 White Paper

Vivid has prepared the White Paper, which is available here, describing matters relating to the System and VIVID. The White Paper is hereby incorporated by reference. You acknowledge that you have read and understand the White Paper and its contents. If there is any inconsistency between the terms of the White Paper and these Terms and Conditions, these Terms and Conditions shall govern.

3. VIVID PURCHASE PROCESS

3.1 Acceptance

Your offer to purchase VIVID will be considered as duly accepted upon the completion of the following:

(a) You transfer cryptocurrency to Vivid’s receiving digital wallet address in accordance with VIVID purchase procedures set out on the Website; and

(b) The Token Generation Closing Date occurs.

3.2 Token Generation Period

The sale of VIVID shall,

(a) commence on the earlier of

(i) the date and time VIVID are offered for pre-sale by Vivid to registered and approved early purchasers (“Pre-Sale Date”); or

(ii) the date and time VIVID will be formally offered for sale by Vivid to general purchasers (“Token Generation Date”); and

(b) conclude on the earlier of the date and time that Vivid confirms the closing of sale of VIVID by providing notice on the Website (“Token Generation Closing Date”).

(collectively, Token Generation Period)

Vivid reserves the right to change the sale dates or extend the sale duration for any reason.

3.3 Registration of Account

In order to access and use the System, you must first create an account with Vivid by clicking the “I Accept” button below. By creating an account with Vivid you are agreeing to: (a) provide accurate, current and complete information; (b) maintain and promptly update your account information to keep it accurate, complete, and current; (c) maintain the security and confidentiality of your login credentials and restrict access to your account and (d) take responsibility for all activities that occur under your account and accept all risks of unauthorized access.

3.4 Token Purchase Instructions

Vivid will provide specific procedures and instructions on the manner in which you may purchase VIVID (“Token Purchase Instructions”). The Token Purchase Instructions will set out the applicable Gas limit and the field you should insert in the sending data field. By accepting these Terms and Conditions, you acknowledge and agree and have no objection to the Token Purchase Instructions. Failure to follow the exact procedures described in the Token Purchase Instructions may result in the incorrect transmission and/or the total loss of your VIVID. The receipt or purchase of VIVID through any other means other than the means described in the Token Purchase Instructions are not sanctioned or agreed to in any way by Vivid.

3.5 VIVID Distribution and Allocation

Vivid intends to allocate and distribute VIVID in accordance with the terms of the White Paper which includes details regarding the timing and tranches of distribution of VIVID, pricing of VIVID and the amount of VIVID that will be distributed. You understand and consent to the participation of Vivid’s past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors and service providers in the purchase of VIVID, including people who may work on the development and implementation of the System or who may work for businesses that Vivid may establish with a portion of the proceeds from the Token Generation.

4. REJECTION AND REFUND POLICY

Vivid may, in its sole discretion, not complete the Token Generation, and in such event all cryptocurrencies and fiat submitted by you will be returned by Vivid promptly following the Token Generation Closing Date. Other than the circumstances set out directly above, the purchase of VIVID are non-refundable. All cryptocurrencies submitted by you will be returned to the digital wallet address used to originally send such amounts.

Vivid has the right to reject your offer to purchase VIVID, in whole or in part, without giving a reason for that rejection and in those circumstances, the cryptocurrencies and fiat submitted by you will be returned to you in the manner described above.

5. REPRESENTATIONS AND WARRANTIES

You represent, warrant and acknowledge to Vivid as follows:

5.1 Terms and Conditions and White Paper

You have received and considered these Terms and Conditions and the White Paper. You are not relying on any representations or statements made or information supplied by or on behalf of Vivid other than information contained in these Terms and Conditions and the White Paper.

5.2 Risks

(a) You are aware of the risks involved in purchasing VIVID, including the inherent risk of the potential to lose all amounts paid for VIVID and the risks set out in these Terms and Conditions.

(b) You have significant knowledge and experience in business and financial matters, including a sufficient understanding of functionality, usage, storage, transmission mechanisms and intricacies associated with cryptographic tokens, such as Bitcoin and Ether, as well as blockchain-based software systems generally, to be able to evaluate the risks and merits of your purchase of VIVID, and you are able to bear the risks thereof, including loss of all amounts paid, loss of VIVID and liability to Vivid and others for your acts and omissions, including those acts and omissions which constitute breach of these Terms and Conditions, negligence, fraud or willful misconduct. You have obtained sufficient information in order to make an informed decision to purchase VIVID.

(c) You take sole responsibility for any restrictions and risks associated with receiving and holding VIVID, including but not limited to these set out in herein.

5.3 Authority

You have all requisite power and authority to execute and deliver these Terms and Conditions, to use the underlying software application and blockchain protocol (i.e. the Ethereum blockchain) which creates the mechanism of creation and distribution of VIVID (“Token Smart Contract”) and purchase VIVID, and to carry out and perform your obligations under these Terms and Conditions.

(a) If an individual, you are at least 18 years old and of sufficient legal age and capacity to purchase VIVID.

(b) If a legal person, Purchaser is duly organized, validly existing and in good standing under the laws of its domiciliary jurisdiction and each jurisdiction where it conducts business.

5.4 Eligible Purchaser

You are an Eligible Purchaser as defined in Schedule 1 and are not acting on behalf of, or for the benefit of, nor do you intend transferring any VIVID you may purchase to, any person who is not an Eligible Purchaser.

5.5 Restrictions on Transfer

You will not transfer directly or indirectly any VIVID or any interest therein without the consent of the directors of Vivid and further, you shall not transfer directly or indirectly transfer any of your VIVID or any interest therein unless the proposed transferee has made the same representations and warranties as set out herein and is an Eligible Purchaser as defined in Schedule 1.

5.6 Restricted Territories

You did not acquire and will not transfer any VIVID within the United States of America, Cayman Islands and China (each, a Restricted Territory). You are not aware of and are in no way relying on, and did not become aware of the sale of VIVID through or as a result of, from or in any Restricted Territory: any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the internet, in connection with the offering and sale of VIVID and you are not purchasing VIVID and did not become aware of the offering of VIVID through or as a result of, in any Restricted Territory, any seminar or meeting to which you were invited by, or any solicitation of a subscription by, a person not previously known to you in connection with investments in securities generally.

Anti-money laundering and regulatory requirements

The funds, including any fiat, virtual currency or cryptocurrency, you use to purchase VIVID are not derived from or related to any unlawful activities, including but not limited to money laundering or terrorist financing, and you will not use VIVID to finance, engage in, or otherwise support any unlawful activities. All payments by you under these Terms and Conditions will be made only in your 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, and is not a “foreign shell bank” within the meaning of the U.S. Bank Secrecy Act (31 U.S.C. § 5311 et seq.), as amended, and the regulations promulgated thereunder by the Financial Crimes Enforcement Network, as such regulations may be amended from time to time.

5.7 No Conflict

Purchaser is legally permitted to hold and make use of VIVID in its relevant jurisdiction. The execution, delivery and performance of these Terms and Conditions 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:

(a) any provision of Purchaser’s organizational documents, if applicable;

(b) any provision of any judgment, decree or order to which Purchaser is a party, by which it is bound, or to which any of its material assets are subject;

(c) any material agreement, obligation, duty or commitment to which Purchaser is a party or by which it is bound; or

(d) any laws, regulations or rules applicable to Purchaser.

5.8 No Consents or Approvals

The execution and delivery of, and performance under, these Terms and Conditions require no approval or other action from any governmental authority or person other than Purchaser.

5.9 Purchaser’ Status

Purchaser is not subject to any of the disqualifying events listed in Rule 506(d)(1) of Regulation D under the Securities Act of 1933 (Purchaser Event), and there is no proceeding or investigation pending or, to the knowledge of Purchaser, threatened by any governmental authority, that would reasonably be expected to become the basis for a Purchaser Event. If Purchaser is a legal entity, Purchaser makes the same representations with respect to its directors (or equivalent) and senior executive officers, and its affiliates and their respective directors (or equivalent) and senior executive officers.

5.10 Taxes

The purchase and receipt of VIVID may have tax consequences for you, you are solely responsible for your compliance with your tax obligations and Vivid bears no liability or responsibility with respect to any tax consequences to you.

5.11 No Advice

Vivid has not provided you with any advice regarding whether purchasing VIVID is a suitable investment for you.

5.12 Purchaser to Notify of Changes

You undertake to notify Vivid immediately if:

(a) you become aware that you or any person for whom you hold VIVID for has ceased to be an Eligible Purchaser; or

(b) any of the representations, declarations or statements in these Terms and Conditions are no longer accurate and complete in all respects.

5.13 Substantiate Representations and Warranties

You undertake to:

(a) provide to Vivid these representations, warranties, acknowledgements, undertakings and agreements at any time Vivid requests; and

(b) provide on request such certifications, documents or other evidence as Vivid may reasonably require to substantiate these representations, warranties, acknowledgements, undertakings and agreements.

6. ANTI MONEY LAUNDERING

6.1

The Purchaser represents and warrants to Vivid that:

(a) it is not a Prohibited Person (as defined at the end of Schedule 1);

(b) no person or entity that controls, is controlled by or under common control with, the Purchaser a Prohibited Person;

(c) neither the Purchaser, nor any person having a direct or indirect beneficial interest in the Purchaser or VIVID being acquired, 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; and

(d) to the extent the Purchaser has any Beneficial Owners1:

(i) it has carried out thorough due diligence to establish the identities of those Beneficial Owners;

(ii) based on that due diligence, the Purchaser reasonably believes that no Beneficial Owner is a Prohibited Person;

(iii) it holds the evidence of those identities and status and will maintain all of that evidence for at least five years from the date of the Purchaser’s complete redemption from Vivid; and

(iv) it will make available that evidence and any additional evidence that Vivid may require upon request in accordance with applicable regulations.

6.2

The Purchaser acknowledges to Vivid that if any of the representations and warranties in the preceding clause ceases to be true or if Vivid no longer reasonably believes that it has satisfactory evidence as to their truth, despite any other agreement to the contrary, Vivid may, in accordance with applicable regulations, be obligated to do one or more of the following:

(a) to take certain actions relating to the Purchaser’s holding of VIVIDs;

(b) to report that action; and

(c) to disclose the Purchaser’s identity to OFAC or other authority.

6.3

If Vivid is required to take any of the actions referred to in the preceding clause, the Purchaser understands, and agrees with Vivid, that it has no claim against Vivid, and its affiliates, directors, members, partners, shareholders, officers, employees and agents for any damages as a result of any of those actions.

6.4

To the extent that the foregoing release enures for the benefit of any director, officer, employee, delegate, agent or subcontractor (whether existing or in the future) of Vivid, Investment Manager or the Administrator, Purchaser acknowledges, and by accepting this application Vivid agrees, that Vivid holds the benefit of release on trust for that person.

6.5

In order to comply with the anti-money laundering regulations applicable to Vivid, the Purchaser acknowledges to Vivid that VIVID will not be issued until Vivid is satisfied that evidence regarding the source of the purchase amounts and the identity of the Purchaser is satisfactory.

6.6

By agreeing to these Terms and Conditions, the Purchaser consents to the disclosure by or on behalf of Vivid of any information about the Purchaser to regulators and others upon request in connection with money laundering and similar matters, both in Singapore and in other jurisdictions.

7. TAX INFORMATION EXCHANGE OBLIGATIONS

7.1

You understand that VIVID do not represent nor do they entitle the holder, in any way whatever, to a:

(a) Depository Account;

(b) Custodial Account;

(c) Cash Value Insurance Contract;

(d) Annuity Contract; or

(e) Equity and/or Debt Interest in Vivid;

as such terms are defined in the Tax Information Authority (International Tax Compliance) (Common Reporting Standard) Regulations, 2015.

7.2

You acknowledge that Vivid may be subject to certain obligations (the “Tax Information Exchange Obligations”) to gather and disclose to the competent authorities information relating to purchasers of VIVID under: (i) the United States Foreign Account Tax Compliance Act provisions enacted under the United States Hiring Incentives to Restore Employment Act and any guidance, or regulations relating thereto (FATCA); (ii) any other legislation, regulations or guidance enacted in any jurisdiction which seeks to implement similar tax reporting, tax information exchange, reporting and/or withholding tax regimes (including the OECD Common Reporting Standard on the automatic exchange of financial account information); and (iii) any legislation, regulations or guidance in Singapore that give effect to the foregoing.

7.3

You shall execute properly and provide to Vivid in a timely manner any documentation or other information that Vivid or its agents may request in writing from time to time in connection with the Tax Information Exchange Obligations. You waive any provision under the laws and regulations of any jurisdiction that would, absent a waiver, prevent or inhibit Vivid’s compliance with applicable law as described in this paragraph, including but not limited to preventing either (i) you from providing any requested information or documentation, or (ii) the disclosure by Vivid and its agents of the provided information or documentation to applicable regulatory authorities.

7.4

Without limitation, you shall provide any documentation or other information regarding your and your beneficial owners requested by Vivid or its agents in connection with the Tax Information Exchange Obligations.

7.5

If you provide information and/or documentation that is in any way misleading, or if you fail to provide Vivid or its agents or delegates with the information and documentation that has been requested, (whether or not such action or inaction leads to compliance failures by Vivid, or a risk of Vivid or its token holders being subject to withholding tax or other penalties), Vivid reserves the right to take any action and/or pursue all remedies at Vivid’s disposal. Further, you shall have no claim against Vivid, or its agents or delegates, for any form of damages or liability as a result of actions taken or remedies pursued by or on behalf of Vivid in order to comply with the Tax Information Exchange Obligations.

7.6

In connection with the foregoing, you hereby indemnify each Vivid Party (each an Indemnified Party) and hold them harmless from and against any liability, action, proceeding, claim, demand, costs, damages, expenses (including legal expenses) penalties or taxes whatsoever which an Indemnified Party may suffer or incur as a result of any misleading or inaccurate information or documentation provided to Vivid or any action or inaction of you. This indemnification shall survive your/the death or disposition of VIVID.

8. RIGHTS CREATED

8.1 VIVID

Vivid does not guarantee and is not representing in any way that purchasers of VIVID have any rights, uses, purpose, attributes, functionalities or features. The purchase of VIVID does not provide purchasers with rights of any form with respect to Vivid 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; VIVID does not provide purchasers of VIVID with any ownership or other interest in Vivid.

8.2 Intellectual Property

Vivid retains all right, title and interest in all of Vivid’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. You may not use any of Vivid’s intellectual property for any reason without Vivid’s prior written consent.

9. SECURITY

9.1 Appropriate Measures

You will implement reasonable and appropriate measures designed to secure access to: (a) any device associated with you and/or utilised in connection with your purchase of VIVID, (b) private keys to your wallet or account and (c) email address, account and your username, password and any other login or identifying credentials.

9.2 Access to Your Account

In the event that you are no longer in possession of your private keys or any device associated with your account or are not able to provide your login or identifying credentials, you may lose all of your VIVID and/or access to your account, and Vivid may, in its sole discretion, grant access to your account to any party providing additional credentials to Vivid. Vivid explicitly reserves the right to determine the additional credentials required, which may include, without limitation, a sworn, notarized statement of identity.

9.3 Security Breach

You will promptly notify Vivid if you discover or otherwise suspect any security breaches related to your account.

10. INFORMATION AND PERSONAL DATA

10.1 Privacy Policy

You have read and understand Vivid’s Privacy Policy.

10.2 Request Data

Upon Vivid’s request, you will immediately provide to Vivid information and documents that Vivid, in its sole discretion, deems necessary or appropriate to comply with any laws, regulations, rules or agreements, including without limitation judicial process. Such documents include, but are not limited to, passport, driver’s license, utility bills, photographs of associated individuals, government identification cards, or sworn statements. Additionally, you may need to provide entity information such as address and social security number or tax ID number to pass Know Your Customer (KYC) and Anti Money Laundering (AML) checks. Since KYC/AML due diligence requirements are risk based, only purchasers deemed to be in risk zones will be asked to complete KYC/AML steps. You consent to Vivid disclosing such information and documents in order to comply with applicable laws, regulations, rules or agreements. You acknowledge that Vivid may refuse to distribute VIVID to you and or provide access to your account until such requested information and/or documents is provided. Vivid reserves its right to request further information and documentation at any time in its sole discretion. Vivid may refuse you access should it have doubts as to validity, authenticity and genuineness of the documents, provided by you. You hereby release Vivid from all claims for any loss that it may suffer as a result of that action, and it hereby waives all such claims. You indemnify Vivid, against all loss arising out of, or in connection with, a failure to process this application.

10.3 Information Provided during Token Generation Period

You agree that Vivid will process all personal data you provide or make available during the Token Generation Period.

10.4 Information Provided during Operation of Website

In addition to the information set out in paragraph 10.2, Vivid collects information from running its Website, provided thereto, and processes such information. When you visit the Website, Vivid collects information sent by your computer, mobile phone, or other access device. This information may include your IP address, device information including, but not limited to, identifier, name, and type, operating system, mobile network information and standard web log information, such as your browser type, and the pages you accessed on our website. When you use a location-enabled device with Vivid’s website, we may collect geographical location data or use various means to determine the location, such as sensor data from your device that may, for instance, provide data on nearby cell towers and wi-fi access spots. When you access the Website, Vivid or its applicable third party service providers on behalf of Vivid may place small data files called cookies on your computer or other device. Vivid uses these technologies to recognize you as a user; customize the Website and advertising; measure promotional effectiveness and collect information about your computer or other access device to mitigate risk, help prevent fraud, and promote trust and safety.

10.5 Processing of Personal Data

Processing of personal data is any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Vivid may share your personal data with third parties in order to complete the Token Generation reveal or suppress fraud or fix technical bugs or eliminate security problems. Vivid will disclose your personal data to its affiliates, subsidiaries and third party service providers in so far as is necessary to complete the Token Generation and fulfill the purposes set out below. The processing of your personal information shall otherwise be in accordance with the terms of Vivid’s privacy policies in effect from time to time.

10.6 Purpose of Processing Personal Data

You agree that Vivid will process your personal data to market, conduct and perform technical analysis on the completion of the Token Generation. Processing of your personal data will also be carried out in order to: (a) fulfill Vivid’s obligations under these Terms and Conditions and under applicable law (including to comply with applicable anti-money laundering requirements); (b) complete your registration; (c) provide technical support and (d) to assist Vivid in the development of the System and the performance of the activities set out in the White Paper.

10.7 Advertising

You acknowledge and agree that you may receive commercial electronic messages and advertising materials from Vivid or third parties by order of Vivid on the e-mail address and the mobile phone number that you provided to Vivid throughout the use of the Website. At any time you will be entitled to withdraw your consent to receive such materials by following the instructions provided in materials.

11. LIMITATION OF LIABILITY; INDEMNIFICATION

11.1 Limitation of Liability

To the fullest extent permitted by applicable law, Purchaser disclaims any right or cause of action against Vivid of any kind in any jurisdiction that would give rise to any Damages whatsoever, on the part of Vivid. Vivid shall not be liable to Purchaser 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 Vivid has been advised of the possibility of such damages. Purchaser agrees not to seek any refund, compensation or reimbursement from Vivid, regardless of the reason, and regardless of whether the reason is identified in these Terms and Conditions.

11.2 Damages

In no circumstances will the aggregate liability of Vivid, whether in contract, warrant, tort or other theory, for damages of any kind under these Terms and Conditions exceed the amount received by Vivid from Purchaser.

11.3 Force Majeure

The Token Generation and the performance of Vivid’s activities set out in the White Paper development roadmap may be interrupted, suspended or delayed due to force majeure events. For the purposes of these Terms and Conditions, a force majeure event shall mean any extraordinary event or circumstances which could not be prevented by Vivid and shall include: hardware, software or other utility failures, changes in market forces or technology, software or smart contract bugs, changes in blockchain-related protocols, acts of nature, wars, armed conflicts, mass civil disorders, industrial actions, epidemics, lockouts, slowdowns, prolonged shortage or other failures of energy supplies or communication service, acts of municipal, state or federal governmental agencies or other circumstances beyond Vivid’s control, which were not in existence at the time of Token Generation. Purchaser understands and agrees that Vivid shall not be liable and disclaims all liability to Purchaser in connection with a force majeure event.

11.4 Release

To the fullest extent permitted by applicable law, Purchaser releases Vivid from responsibility, liability, claims, demands, and/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 Purchaser and the acts or omissions of third parties.

11.5 Indemnification

(a) To the fullest extent permitted by applicable law, Purchaser will indemnify, defend and hold harmless and reimburse Vivid and each of their respective past, present and future partners, employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (“Vivid Parties”), from and against any and all actions, proceedings, claims, damages, demands and actions (including without limitation fees and expenses of counsel), incurred by such parties arising from or relating to: (i) Purchaser’s purchase or use of VIVID; (ii) Purchaser’s responsibilities or obligations under these Terms and Conditions; (iii) Purchaser’s breach of or violation of these Terms and Conditions; (iv) any inaccuracy in any representation or warranty of Purchaser; (v) Purchaser’s violation of any rights of any other person or entity; and/or (vi) any act or omission of Purchaser that is negligent, unlawful or constitutes willful misconduct.

(b) Vivid reserves the right to exercise sole control over the defense, at Purchaser’s expense, of any claim subject to indemnification under this Section. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between Purchaser and Vivid.

(c) Any Vivid Party or other identifiable person who is not a party to these Terms and Conditions may enforce any rights granted to it pursuant to these Terms and Conditions in its own right as if it was a party to these Terms and Conditions. Except as expressly provided in the foregoing sentence, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Law, 2014 (as amended) to enforce any term to these Terms and Conditions. Notwithstanding any term of these Terms and Conditions, the consent of or notice to any person who is not a party to these Terms and Conditions shall not be required for any termination, rescission or agreement to any variation, waiver, assignment, novation, release or settlement under these Terms and Conditions at any time.

12. MISCELLANEOUS

12.1 Interpretation

In these Terms and Conditions, unless the contrary intention appears:

(a) a reference to a statute includes references to that statute as amended or re-enacted and to other statutes that modify its application as well as references to any subordinate legislation made or to be made under that statute;

(b) a reference to the singular includes the plural and vice versa;

(c) a reference to a gender includes the other genders;

(d) a reference to persons includes individuals, companies, firms, partnerships, government bodies or agencies and corporations sole and aggregate;

(e) obligations entered into by more than one person in these Terms and Conditions bind all of those persons jointly and each of them severally; and

(f) the headings do not affect the interpretation of these Terms and Conditions.

12.2 Multiple Purchaser

If there is more than one Purchaser, then all representations, warranties, acknowledgements, undertakings and agreements by the Purchaser binds those persons jointly and each of them individually, and all benefits in favor of the Purchaser benefits those persons jointly and each of them individually.

12.3 Governing Law and Venue

These Terms and Conditions shall be governed in all respects, including as to validity, interpretation and effect, by the laws of Singapore, without giving effect to its principles or rules of conflict of laws, to the extent such principles or rules are not mandatorily applicable by statute and would permit or require the application of the laws of another jurisdiction. All disputes or claims arising out of or in connection with these Terms and Conditions, including disputes relating to its validity, breach, termination or nullity shall be finally settled under by a court in Singapore.

12.4 No Class Actions

Any dispute arising out of or related to these Terms and Conditions is personal to Purchaser and Vivid and will not be brought as a class arbitration, class action or any other type of representative proceeding. There will be no class arbitration or arbitration in which an individual attempts to resolve a dispute as a representative of another individual or group of individuals. 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.

12.5 Assignment

You shall not assign these Terms and Conditions without the prior written consent of Vivid. Any assignment or transfer in violation of this Section will be void. Vivid may assign these Terms and Conditions to an affiliated entity at any time without your prior consent. Subject to the foregoing, these Terms and Conditions, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives.

12.6 Severability

If any provision of these Terms and Conditions 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.

12.7 No Waivers

The failure by Vivid to exercise or enforce any right or provision of these Terms and Conditions will not constitute a present or future waiver of such right or provision nor limit Vivid’s right to enforce such right or provision at a later time. All waivers by Vivid must be unequivocal and in writing to be effective.

12.8 No Partnership; No Agency; No Third-Party Beneficiaries

Nothing in these Terms and Conditions 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 these Terms and Conditions and no action taken by the parities pursuant to these Terms and Conditions shall constitute, or be deemed to constitute, either party to be an agent of the other party for any purpose. No party has, pursuant to these Terms and Conditions, any authority or power to bind or to contract in the name of the other party. These Terms and Conditions do not create any third party beneficiary rights in any person.

12.9 Electronic Communications

You agree and acknowledge that all agreements, notices, disclosures and other communications that Vivid provides pursuant to these Terms and Conditions or in connection with or related to your purchase of VIVID, may be provided by Vivid, in its sole discretion, to you, in electronic form.

12.10 Risks

The acquisition of Vivid Tokens involves a high degree of risk. Before acquiring Vivid Tokens, it is recommended that each Purchaser conduct its own careful examination of all relevant information and risks about the Vivid, Vivid Platform and Vivid Tokens and, specifically, the disclosures and risk factors set out below. If any of the following risks actually occurs, the Vivid Platform, Vivid Token and Purchaser’s Vivid Tokens may be materially and adversely affected, including the Purchaser’s Vivid Token being rendered worthless or unusable.

(a) Risks relating to highly speculative prices

The valuation of cryptocurrency in a secondary market is usually not transparent, and highly speculative. The Vivid Tokens do not hold any ownership rights to the Vivid’s assets and, therefore, are not backed by any tangible asset. The value Vivid Tokens in the secondary market, if any, may fluctuate greatly within a short period of time. There is a high risk that a Purchaser could lose its entire contribution amount. In the worst-case scenario, Vivid Tokens could be rendered worthless.

(b) General security risks

(i) Risk of theft and hacking

Token generation events and initial coin offerings are often targeted by hackers and bad actors. Hackers may attempt to interfere with the Purchaser’s digital wallet, whether located on the Vivid Platform or otherwise (e.g., Purchaser’s Wallet), the Vivid Smart Contract or the availability of Vivid Tokens in any number of ways, including without limitation denial of service attacks, Sybil attacks, spoofing, smurfing, malware attacks, or consensus-based attacks. Any such attack may result in theft of Purchaser’s Vivid Tokens.

(ii) Private keys

Vivid Tokens purchased by Purchaser may be held by Purchaser in Purchaser’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 Purchaser’s digital wallet or vault storing Vivid Tokens will result in loss of such Vivid Tokens. 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 Purchaser uses, may be able to misappropriate Purchaser’s Vivid Tokens. Vivid is not responsible for any such losses.

(iii) Failure to map a public key to Purchaser’s Wallet

Failure of the Purchaser to map a public key to such Purchaser’s Wallet may result in third-parties being unable to recognize buyer’s Vivid Token balance on the Ethereum blockchain when and if they configure the initial balances of a new blockchain based upon the Vivid Platform.

(iv) Risk of incompatible wallet service

The wallet or wallet service provider used for the acquisition and storage of the Vivid Tokens has to be technically compatible with the Vivid Tokens. The failure to assure this may result in the Purchaser not being able to gain access to its Vivid Tokens.

(v) Risk of weaknesses or exploitable breakthroughs in the field of cryptography

Advances in cryptography, or other technical advances such as the development of quantum computers, could present risks to cryptocurrencies, Ethereum and Vivid Tokens, which could result in the theft or loss of Vivid Tokens.

(vi) Internet transmission risks

There are risks associated with using Vivid Tokens including, but not limited to, the failure of hardware, software, and internet connections. Vivid shall not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Vivid Platform and Vivid Tokens, howsoever caused. Transactions in cryptocurrency may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Cryptocurrency transactions are deemed to be made when recorded on a public ledger, which is not necessarily the date or time when the transaction is initiated.

12.11 Vivid Platform Disclosures

(a) No guarantee that Vivid Smart Contract will be developed

Purchaser acknowledges, understands and agrees that Purchaser should not expect and there is no guarantee or representation or warranty by Vivid that: (a) the Vivid Platform will ever be adopted; (b) the Vivid Platform will be adopted as developed by Vivid and not in a different or modified form; (c) a blockchain utilizing or adopting the Vivid will ever be launched; and (d) a blockchain will ever be launched with or without changes to the Vivid Platform and with or without a distribution matching the fixed balance of Initial Tokens (as defined below). Furthermore, the Tokens initially generated upon the Token Launch (Initial Tokens) will not have any functionality or rights on the Vivid Platform and holding Initial Tokens is not a guarantee, representation or warranty that the holder will be able to use the Vivid Platform, or receive any tokens utilized on the Vivid Platform, even if the Vivid Platform is launched and the Vivid Smart Contract is adopted, of which there is no guarantee, representation or warranty made by Vivid.

(b) Risks associated with the Vivid Smart Contract and associated software and/or infrastructure.

The Vivid Smart Contract is based on the Ethereum blockchain. As such, any malfunction, unintended function or unexpected functioning of the Ethereum protocol may cause Vivid Tokens and/or the Vivid Platform to malfunction or function in an unexpected or unintended manner.

The Ethereum blockchain rests on open source software, and accordingly there is the risk that the Vivid Smart Contract may contain intentional or unintentional bugs or weaknesses which may negatively affect Vivid Tokens or result in the loss or theft of Vivid Tokens or the loss of ability to access or control Vivid Tokens. In the event of such a software bug or weakness, there may be no remedy and Vivid Token holders are not guaranteed any remedy, refund or compensation.

On the Ethereum blockchain timing of block production is determined by proof of work so block production can occur at random times. For example, Ether transferred to Vivid’s recipient digital wallet address in the final seconds of a distribution period may not get included for that period. Purchaser acknowledges and understands that the Ethereum blockchain may not include the Purchaser’s transaction at the time Purchaser expects and Purchaser may not receive Vivid Tokens the same day Purchaser sends Ether. The Ethereum blockchain is prone to periodic congestion during which transactions can be delayed or lost. Individuals may also intentionally spam the Ethereum network in an attempt to gain an advantage in purchasing cryptographic tokens. Purchaser acknowledges and understands that Ethereum block producers may not include Purchaser’s transaction when Purchaser wants or Purchaser’s transaction may not be included at all.

Ether, the native unit of account of the Ethereum may itself lose value in ways similar to Vivid Tokens, and also other ways. More information about Ethereum is available at http://www.ethereum.org.

(c) Irreversible nature of blockchain transactions

Transactions involving Vivid Tokens that have been verified, and thus recorded as a block on the blockchain, generally cannot be undone. Even if the transaction turns out to have been in error, or due to theft of a user’s Vivid Token, the transaction is not reversible. Further, at this time, there is no governmental, regulatory, investigative, or prosecutorial authority or mechanism through which to bring an action or complaint regarding missing or stolen cryptocurrencies and digital tokens. Consequently, Vivid may be unable to replace missing Vivid Tokens or seek reimbursement for any erroneous transfer or theft of Vivid Tokens.

(d) Amendments to protocol

The development team and administrators of the source code for Ethereum blockchain or the Vivid Smart Contract could propose amendments to such network’s protocols and software that, if accepted and authorized, or not accepted, by the network community, could adversely affect the supply, security, value, or market share of Vivid Tokens.

(e) Risk of mining attacks

As with other decentralized cryptocurrencies, Ethereum blockchain, which is used for the Vivid Tokens, is susceptible to mining attacks, including but not limited to double-spend attacks, majority mining power attacks, “selfish-mining” attacks, and race condition attacks. Any successful attacks present a risk to the Vivid Tokens, expected proper execution and sequencing of Vivid Tokens, and expected proper execution and sequencing of Ethereum contract computations in general. Despite the efforts of the Vivid and Ethereum Foundation, the risk of known or novel mining attacks exists. Mining attacks, as described above, may also target other blockchain networks, with which the Vivid Tokens interact with and consequently the Vivid Tokens may be impacted also in that way to the extent described above.

SCHEDULE 1 – ELIGIBLE PURCHASER

From time to time, Vivid’s directors may amend the criteria for determining who is an Eligible Purchaser for the purpose of purchasing or receiving VIVID.

Initially, all Purchasers are Eligible Purchasers except the following:

  • Purchaser whose acquisition of VIVID would cause a breach of the law or requirements of any country or governmental authority, including anti-money laundering regulations or conventions;
  • Purchaser who is a member of the public in the Cayman Islands;
  • Purchaser on behalf of terrorists or terrorist organizations, including those persons or entities that are included on the List of Specially Designated Nationals and Blocked Persons maintained by the US Treasury Department’s Office of Foreign Asset Control2 (OFAC);
  • Purchaser who acts, directly or indirectly, for a senior foreign political figure, any member of a senior foreign political figure’s immediate family or any close associate of a senior foreign political figure3 unless Vivid, after being specifically notified by the Purchaser in writing that it is such a person, conducts further due diligence, and determines that the investment is permitted;
  • Purchaser or an entity acting as trustee, agent, representative or nominee for a Purchaser that is a foreign shell bank4;
  • Purchaser who makes representations or warranties in the Terms and Conditions that are not true when given or have ceased to be true;
  • Purchaser whose circumstances are such that, in the opinion of Vivid’s directors, its continued ownership of VIVID would cause an undue risk of adverse tax or other consequences to Vivid. Those circumstances include those that affect that Purchaser directly or indirectly, whether taken alone or in conjunction with another person or persons, connected or not, or any other circumstance that appears to the directors to be relevant;
  • Purchaser, or a Purchaser that is an entity acting as trustee, agent, representative or nominee for a person, who is a United States person (within the meaning of Rule 902 of Regulation S of the United States Securities Act, as amended)5. The Purchaser must notify Vivid immediately if the Purchaser becomes a United States person or becomes aware that any person for whom the Purchaser holds shares as trustee, agent, representative or nominee has become a United States person. Despite this, if Vivid chooses to comply fully with applicable U.S. laws and regulations, Vivid may arrange for the private placement of VIVID to Purchasers who are in the United States or who are U.S. Persons if, among other things, each such Purchaser delivers to Vivid a completed form of these Terms and Conditions that contains certain representations, warranties and agreements in accordance with applicable U.S. laws and regulations before acquiring any VIVID.

All persons who do come within any of these categories are known, collectively, as “Prohibited Persons”.

1 For these purposes, Beneficial Owners include, but are not be limited to the following: (i) shareholders of a corporation; (ii) partners of a partnership; (iii) members of a limited liability company; (iv) investors in a fund of funds; (v) the grantor of a revocable or grantor trust; (vi) the beneficiaries of an irrevocable trust; (vii) the individual who established an IRA; (viii) the participant in a self-directed pension plan; (ix) the sponsor of any other pension plan; and (x) any person represented by the Purchaser in an agency, representative, intermediary, nominee or similar capacity. If the Beneficial Owner is itself an entity, the information and representations set forth in this Application Form must also be given with respect to its individual Beneficial Owners. If the Purchaser is a publicly-traded company, it need not conduct due diligence as to its Beneficial Owners.

2 The OFAC list may be accessed on the web at http://www.treas.gov/ofac.

3 Senior foreign political figure means a senior official in the executive, legislative, administrative, military or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party or a senior executive of a foreign government-owned corporation. In addition, a senior foreign political figure includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior foreign political figure. The immediate family of a senior foreign political figure typically includes the political figure’s parents, siblings, spouse, children and in-laws. A close associate of a senior foreign political figure is a person who is widely and publicly known internationally to maintain an unusually close relationship with the senior foreign political figure, and includes a person who is in a position to conduct substantial domestic and international financial transactions on behalf of the senior foreign political figure.

4 Foreign shell bank means a foreign bank without a physical presence in any country, but does not include a regulated affiliate.

5 “U.S. Person” means:

(i) any natural person resident in the United States;

(ii) any partnership or corporation organized or incorporated under the laws of the United States;

(iii) any estate of which any executor or administrator is a U.S. Person;

(iv) any trust of which any trustee is a U.S. Person;

(v) any agency or branch of a non-U.S. entity located in the United States;

(vi) any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. Person;

(vii) any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States; or

(viii) any partnership or corporation if:

(A) organized or incorporated under the laws of any non-U.S. jurisdiction; and

(B) formed by a U.S. Person principally for the purpose of investing in securities not registered under the Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) under the Act) who are not natural persons, estates or trusts.

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