Token Auction Terms

Zama Switzerland AG, with its registered seat in Zug (“Company”, “we” or “us”), as the issuer of the Zama Token (“Token”) conducts an auction of the Token (“Auction”).

These Zama Auction Terms (“Terms”) are entered into between the Company and each participant in the Auction, as defined below (“Participant”, “you” or “your”).

These Terms together with any documents incorporated by reference herein, govern your participation in the Auction of the Tokens including, in particular, but not limited to the use of the Auction Contract and the Interface, both as defined below.

By ticking the acceptance box and/or participating in the Auction, you confirm and acknowledge that you have carefully read, understood, and agree to be bound by these Terms.

1. Eligibility

To be eligible to participate in the Auction, you represent and warrant that:

• You are 18 years old or qualify as an adult in your country of residence.
• You, including your affiliates, officers, and directors, are not a citizen or resident of, and are not located in, any jurisdiction that is subject to comprehensive sanctions or embargoes imposed by the United Nations, Switzerland, the European Union, the United States, or any other relevant authorities.
• Neither you nor any of your affiliates, officers, or directors are listed on, or owned or controlled by any person or entity listed on, the Overall List of Sanctioned Individuals, Entities and Organizations maintained by the Swiss State Secretariat for Economic Affairs (SECO), the EU Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions, the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, the U.S. Department of State’s Debarred Parties List, or any other national or international sanctions or embargo list.
• You, including your affiliates, officers, and directors, are not a resident or citizen of, and are not located in, any geographic area designated as non-cooperative with international anti-money-laundering (AML) principles or procedures by any intergovernmental organization, including the Financial Action Task Force (FATF).
• You, including your affiliates, officers, and directors, are not domiciled in and are not organized under the laws of any jurisdiction whose legislation conflicts with the allocation of Tokens or the overall purpose of the Company.
• Any funds you use for bids in the Auction are (i) good, clean, and of non-criminal origin; (ii) completely free and clear of any liens, encumbrances, or third-party rights; and (iii) not derived from any activity that may constitute a breach of money-laundering regulations, whether under the laws of the jurisdiction of origin or under applicable international standards.

2. Auction Overview

2.1 Zama Token

The Token is the subject of the Auction.

The Token is currently intended to serve as the utility token of the Zama protocol (“Protocol”) - a decentralized protocol enabling developers to choose which parts of their smart contracts to make confidential - and to display the following functionalities:

• The Token is required for the encryption, decryption, and bridging of data via the Protocol; and
• The Token is necessary to become an operator of the Protocol. Token holders can delegate their tokens to operators.

The Token does not represent assets such as debt or equity claims against the Company or any third party, or grant equivalent rights (such as shares, bonds, or derivatives), or confer any right to future revenues, future capital flows, or similar forms of participation. The Token is not designed to be used as a means of payment or value transfer.

Given the evolving regulatory, technical and economic landscape surrounding blockchain networks and blockchain-based tokens, the Company reserves the right to modify or adapt the Token’s concept, functionalities, or the Protocol itself at any time.

2.2 Participation

The Auction of the Zama Token is conducted through an auction smart contract deployed by the Company on Ethereum (“Auction Contract”). The Auction Contract can be accessed directly or through the interface provided on auction.zama.org (“Interface”).

The Auction Contract and the Interface are provided "as is" and "as available", without warranties of any kind, and the Company expressly disclaims all implied warranties as to the Auction Contract and/or the Interface, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement; (ii) the Company does not warrant that the Auction Contract and/or the Interface are reliable, current or error-free, meet the Participant’s requirements, or that defects in the Auction Contract and/or the Interface will be corrected; and (iii) the Company cannot and does not warrant that the Tokens, the Auction Contract, the Interface, or the delivery mechanism for Tokens are free of viruses or other harmful components

The Company shall not be held liable for any losses, damages, or disruptions resulting from the use or unavailability of the Auction Contract and/or the Interface and hereby expressly disclaims any control over or responsibility for the operation, functionality, security, or availability of the Auction Contract and/or the Interface or content related to the Auction.

To the maximum extent permitted by applicable law, the Company disclaims all representations and warranties, express, implied, or statutory, including the implied warranties in relation to the Auction Contract and/or the Interface.

THE INFORMATION ACCESSIBLE ON THE INTERFACE IS PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY. NOTHING IN THE INFORMATION PROVIDED ON THE INTERFACE SHOULD BE USED OR RELIED UPON AS LEGAL, FINANCIAL, TAX OR OTHER ADVICE, OR AS AN INSTRUCTION OR SOLICITATION OF ACTION BY ANY PERSON.

2.3 Know Your Customer Requirements

The Participant acknowledges that the Company may be required to obtain, verify and record information regarding the Participant, its shareholders, ultimate beneficial owners, authorized signatories, controlling parties, and the transactions contemplated by these Terms (including source of wealth and source of funds) to comply with any applicable anti-money laundering, anti-terrorist financing, or government sanctions regimes currently in force or enacted in the future and/or compliance industry standards and policies.

The Participant agrees to promptly provide to the Company or its appointed service provider (“KYC Service Provider”) all information, documentation, and evidence reasonably requested to complete the know-your-customer verification process (“KYC Check”). This obligation also applies whenever the Company’s banking partners require additional information regarding the source of funds related to deposits or transactions involving the Company.

Any information or documentation submitted by the Participant in connection with the KYC Check may be shared with the KYC Service Provider, the Company’s legal counsel, banking partners, regulatory authorities, and any other third parties engaged by the Company for compliance or reporting purposes. The Participant understands that the outcome of the KYC Check lies in the sole discretion of the Company and/or the KYC Service Provider. The Participant further acknowledges that the scope of the KYC Check may evolve over time, and that additional information or documentation may be requested at a later stage to maintain ongoing compliance with AML/KYC Requirements.

3. Taxation

The Participant will bear sole responsibility for any and all taxes, levies, charges, and fees (including, where applicable, VAT) that may arise from the participation in the Auction, the allocation, receipt, holding, transfer, or use of Tokens provided pursuant to or otherwise associated with these Terms. The Participant is solely responsible for identifying and meeting all tax obligations as required by applicable laws.

By accepting these Terms, the Participant acknowledges that neither the Company nor any Company Party (as defined in Section 6) shall be held responsible for any tax obligations of the Participant. The Participant also agrees to comply with all relevant tax laws, and to indemnify and hold harmless the Company and Company Parties against any liabilities arising from non-payment of such taxes or fees by the Participant.

4. Risks

The Participant understands and accepts the risks connected to the Token and the participation in the Auction. In particular, but not exhaustively, the Participant understands the inherent risks listed hereinafter.

BY ACCEPTING THESE TERMS, THE PARTICIPANT EXPRESSLY ACKNOWLEDGES AND ASSUMES THESE RISKS.

4.1 Project Related Risk

The Participant acknowledges and agrees that the project developed around the Protocol may be exposed to operational challenges and risks such as security breaches or potential associations with illicit activities, which may adversely affect participation, utility, or value of the Token or even lead to the discontinuity of the project.

4.2 Regulatory Risk

The Participant understands and accepts that blockchain technology may be subject to existing or new regulations, which could substantially modify or terminate the project and lead to loss of the Token or its functionality.

The Participant acknowledges and accepts that, notwithstanding the fact that Tokens does not generate or confer any contractual or other obligations on any party, regulatory authorities may nevertheless classify the Token as a security or another financial instrument under relevant laws, regardless of its intended function. It remains the responsibility of the Participant to ensure compliance with all applicable legal requirements when holding or transferring Tokens.

Tokens are issued under Swiss law and may be subject to additional regulation from other jurisdictions, which could significantly impact their transferability, functionality, or legality in certain jurisdictions.

4.3 Tax Risk

The Participant understands and accepts that participation in the Auction, the allocation, receipt, holding, transfer, or use of Tokens, or any other transaction connected with these Terms may have adverse tax consequences.

4.4 Malicious Behavior Risks

The Auction Contract and/or the Interface may be exposed to third-party infrastructure failures or cyberattacks including but not limited to SQL injection attacks, cross-site scripting (XSS), or clickjacking, denial-of-service (DoS) attacks, attacks at the DNS or DNS registrar level, or other unauthorized and/or malicious activities, that could result in the theft, loss, or unauthorized transfer of digital assets.

Users acknowledge that, despite best efforts to enhance security, the smart contracts and technological components supporting the Auction – including its blockchain infrastructure, smart contracts, wallets – may be vulnerable to cyberattacks.

Malicious actors may exploit software vulnerabilities, attack consensus mechanisms, or compromise private keys to gain unauthorized access to digital assets. Risks include hacking attempts on the Auction Contract, the Interface, the wallets, smart contract exploits, phishing attacks, malware infections, and other forms of cybercrime that could result in the theft, loss, or unauthorized transfer of digital assets. Since digital assets exist entirely in a technological environment, they are inherently exposed to evolving cyber threats, some of which may be undetectable or irreparable until after significant damage has occurred

4.5 Technical Risks

As the technological components supporting the Auction are of experimental nature, they may contain bugs, defects, or errors (including any bug, defect, or error relating to or resulting from the display, manipulation, processing, storage, transmission, or use of data) that may materially and adversely affect the access and conduct of the Auction.

THE AUCTION CONTRACT AND/OR THE INTERFACE HAVE BEEN AND ARE BEING PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CONSEQUENTLY, ANY INTERACTION WITH THE AUCTION CONTRACT AND/OR THE INTERFACE MAY RESULT IN IRREVERSIBLE LOSS, WITHOUT ANY KIND OF CONSIDERATION.

4.6 Private Key related Risk

Tokens assigned to a specific address are exclusively accessible through the private key associated with that address. The loss or compromise of private keys or passwords will lead to the irrevocable loss of Tokens, and the Company cannot provide any remedy in such circumstances.

4.7 Risk of Title and Loss

Title to, and risk of loss of, Tokens is transferred to the Participant when the Tokens are allocated to the Participant's address. After allocation, the Participant assumes all associated risks.

5. Limitation of Liability

Except in cases of gross negligence, fraud, or willful misconduct, neither Party shall be liable to the other Party for any damages arising out of or in connection with these Terms, including, without limitation, indirect or consequential damages such as loss of profit, loss of business opportunity, or reputational harm. To the fullest extent permitted by law, in no event will the aggregate liability of either Party exceed the Participant’s bid in the Auction. Nothing in these Terms shall exclude or limit any liability that cannot be excluded or limited under mandatory Swiss law.

6. Indemnification

To the fullest extent permitted by applicable law, the Participant will indemnify, defend and hold harmless the Company, the Company’s respective past, present, and future members of the board, founders, employees, officers, directors, contractors, consultants, suppliers, vendors, service providers, developers, subsidiaries, affiliates, agents, representatives, predecessors, successors and assignees (“Company Parties”) from and against all claims, demands, actions, damages, losses, costs and expenses (including attorneys’ fees) that arise from or relate to any violation of these Terms, including any inaccuracies in the provided representations and warranties, and any ensuing regulatory enforcement actions, whether arising from the Participant’s actions or omissions. The Company reserves the right to exercise sole control over the defense, at the Participant’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 the Participant and the Company.

7. Warranty Disclaimer of the Company

To the maximum extent permitted by applicable law, and unless expressly stated otherwise in writing by the Company, the Participant acknowledges and agrees that:

• the Auction Contract, the Interface and the allocation of the Tokens will be provided and made available on an “as is” and “as available” basis, without warranties of any kind;
• the Company disclaims all warranties, whether express, implied, statutory, or otherwise, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising from course of dealing, usage, or trade;
• the Company does not represent or warrant that the Tokens, the Auction Contract or the Interface will be reliable, secure, uninterrupted, error-free, current, or free of viruses, or other harmful components, or that any defects will be corrected;
• the Company makes no representations, warranties, or guarantees as to:
  • the functionalities of the Tokens at Launch or thereafter;
  • the future market value, liquidity, or price stability of the Tokens;
  • the existence or availability of secondary markets for the Tokens;
  • the continued security, operability, or availability of the blockchain networks with which the Tokens are intended to be interoperable;
  • the absence of forks, duplications, or modifications to such networks; and
  • the regulatory classification or treatment of the Tokens in any jurisdiction.

Some jurisdictions do not allow the exclusion of certain warranties or implied terms in contracts with consumers. In such cases, the exclusions and disclaimers above shall apply only to the extent permitted by applicable law, and the remaining provision of these Terms shall remain valid and enforceable.

8. Representations and Warranties of the Participant

The Participant represents and warrants to the Company as follows, and acknowledges that the Company is relying on these representations and warranties:

8.1 Capacity and Authority

• If the Participant is a legal person, it is duly organized, validly existing and in good standing under the laws of its jurisdiction and domicile and has all requisite power and authority to enter into and perform its obligations under these Terms.
• The participation to the Auction complies with all applicable laws and regulations in its jurisdiction, including any requirements related to legal capacity, regulatory restrictions, and necessary governmental or third-party consents, all of which have been duly obtained where required.
• The Participant is accepting these Terms to participate in the Auction and acquire the Tokens for its own account, not as a nominee or agent, and not with any present intent to resell, distribute, or grant any participation in them, and represents and warrants that no other person holds a direct or indirect beneficial interest in the Tokens.

8.2 Acknowledgements

• The Participant understands that the Terms and related documents do not constitute a prospectus, offering memorandum, or similar disclosure document.
• The Participant has not relied on any marketing materials, statements, or representations made by the Company or any other person outside these Terms, including, without limitation, oral or electronic communications, presentations, technical papers, white papers, websites, or social media content.
• The Participant has had the opportunity to conduct its own due diligence on the Company, the Tokens, and the Auction, including the ability to ask questions and receive answers to its satisfaction. Its decision to contribute is based solely on its own investigation and these Terms.
• The Participant understands that the holding of Tokens and interacting with the Protocol does not involve acquiring shares, securities, or any interest in any current or future entity.
• The Participant understands that the Tokens (i) carry no rights, uses, functions, features, or attributes except as those set forth in these Terms; and (ii) confer no voting, ownership, distribution, redemption, liquidation, proprietary (including intellectual property), or other rights in the Company.
• The Participant has been advised that the Tokens allocated hereunder may, in certain jurisdictions, be classified as securities, and the Tokens issued hereunder may not be resold except in compliance with applicable securities laws. Accordingly, the Participant understands and accepts that it must bear the economic risks of its contribution or any future receipt of Tokens for an indefinite period.
• All information provided by the Participant is true, accurate, and complete, and the Participant is acting solely on its own behalf and not as an agent or nominee for any third party.
• The Participant understands that the Token is not, nor is there any anticipation that the Token will ever be, registered with the U.S. Securities and Exchange Commission (SEC) under the U.S. Securities Act of 1933 (“Securities Act”), as amended or with any United States state agency, nor will it be registered pursuant to any other law or regulation of similar import.
• The Participant understands that the Company may, at its own discretion, cancel all bids from the Participant if it deems they tried to circumvent restrictions such as KYC/AML or bidding limits, or manipulate the outcome of the auction by means of collusion with other participants, front-running transactions, or any other means that could lead to an unfair result for other Participants.

8.3 Sophistication and Technical Understanding

• The Participant has sufficient knowledge and experience in financial and business matters to evaluate the risks of entering into the Auction and is able to participate in the Auction without impairing its financial condition.
• The Participant has a thorough understanding of the functionality, usage, storage, transmission mechanisms and intricacies associated with cryptographic tokens, like BTC and ETH, and blockchain-based software systems.
• The Participant has a bona fide interest in supporting the development, testing, deployment, and operation of the Protocol, acknowledges the commercial risks involved, and is not acquiring Tokens for speculative investment purposes.

9. Data Privacy Policy

For information about how we handle your personal information, please see our privacy policy at https://www.zama.org/legal/token-sale-privacy-notice.

10. Miscellaneous

10.1 Entire Agreement and Severability

These Terms contain the entire agreement between you and us regarding the Auction and supersedes all understandings and agreements whether written or oral. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of these Terms or invalidate or render unenforceable such provision in any other jurisdiction. Upon such determination that any provision is invalid, illegal, or unenforceable, these Terms shall be modified to effectuate the original intent of the parties as closely as possible.

10.2 Class Action Waiver

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR A CLASS-WIDE ARBITRATION AGAINST THE COMPANY, ITS AFFILIATES OR ANY INDIVIDUAL OR ENTITY INVOLVED IN THE AUCTION AND THE ALLOCATION OF THE TOKENS.

10.3 Governing Law and Jurisdiction

These Terms and all claims relating to or arising out of these Terms, or the breach thereof, whether in contract, tort or otherwise, shall be governed by Swiss Law, excluding Swiss choice-of-law principles.

Any dispute, controversy or claim arising out of, or in relation to, these Terms, including the validity, invalidity, breach, or termination thereof, shall be resolved by the ordinary courts in Zug, Switzerland.