General Terms and Conditions for the Preparation of Digital Asset Ratings
Effective Date: 01/01/2024
Particula GmbH, Reinachstr. 57, 80995 Munich („Particula“) offers its customers a web-based access to their online portal for the collection, assessment, and analysis of crypto values, tokens, and other digitalized assets (collectively,„Digital Assets“; online portal hereinafter referred to as „Platform“). This contract governs the contractual relationship between Particula and the token issuers regarding the use of the Platform.
1.1 „General Terms and Conditions“ refers to these General Terms and Conditions.
1.2 „Contact Person“ refers to the person named in the Agreement who acts as the primary contact for all questions and concerns related to the data provided for the rating, as well as the person named by Particula in the Agreement who acts as the primary contact for all questions and concerns of the Client related to Particula’s use of the data.
1.3 „Asset“ refers to crypto assets, tokens or other digital assets.
1.4 „Order“ refers to an (individual) order for individual services to be provided by Particula under the Contract in accordance with the relevant order form.
1.5 „Order form“ refers to the specific order form.
1.6 „Third Party“ refers to any person, company, institution or other legal entity other than the Client and Particula.
1.7 „Initial rating“ refers to the first rating that is created for a rating object.
1.8 „Monitoring“ refers to the ongoing monitoring of the rating of the rating object and the preparation of a follow-up rating for the respective rating object in accordance with this agreement. It begins on the day following the day on which the initial rating is issued.
1.9 „Party“ refers to one of the parties to the contract.
1.10 „Public Rating“ refers to a rating that is not made available exclusively to the client and is intended for public disclosure, in particular on the Particula platform.
1.11 „Rating“ refers to Particula’s opinion on the valuation of a rating object in accordance with Particula’s applicable rating methodology, whereby this valuation is summarised in a rating grade and substantiated in a rating report. The ratings do not constitute a „rating“ within the meaning of Regulation (EC) No 1060/2009 on credit rating agencies as amended by Regulation (EU) No 513/2011 and Regulation (EU) No 462/2013 on credit rating agencies, as amended.
1.12 „Rating Action“ refers to a rating decision by Particula, including, but not limited to, the assignment of a rating, the upgrade or downgrade of a rating, the review of a rating or the withdrawal of a rating.
1.13 „Rating object“ refers to assets of all types
1.14 „Rating report“ refers to the document that contains the analytical rationale for a rating decision and may include analytical results, rating drivers and key transparency disclosures related to the analysis.
1.15 „Review“ refers to the labelling of a rating for a possible upgrade, a possible downgrade or for a possible reassessment.
1.16 „Affiliated companies“ refers to legally independent companies which, in relation to each other, are subsidiaries and parent companies, controlled or controlling companies, members of a group of companies, companies with cross-shareholdings or parties to an inter-company agreement within the meaning of Sections 15 et seq. AktG (German Stock Corporation Act).
1.17 „Affiliated Third party“ refers to any natural or legal person who is directly or indirectly affiliated with the client as an affiliated company.
1.18 „Contract“ refers to the contract between Particula and the Client, of which these General Terms and Conditions form an integral part, and which consists of the order form(s) including the annexes.
1.19 „Confidential Information“ refers to information – regardless of the form in which it is recorded – that is provided by one Party to the other Party and is classified as „confidential“. Only information that is not generally known or readily accessible, either as a whole or in the precise arrangement and composition of its components, to persons in the circles that normally deal with this type of information and is therefore of commercial value, and which is the subject of confidentiality measures appropriate to the circumstances by its rightful owner and for which there is a legitimate interest in secrecy and confidentiality, can be classified as confidential. Confidential information does not include information that is publicly available, has become generally available to the public or which the receiving party has obtained without using the information received from the other party.
2. Principles of service provisions
2.1 Particula shall provide its services, which consist of the preparation of ratings and other services, in accordance with these Terms and Conditions and this Agreement.
2.2 Particula does not provide any financial, legal, tax, advisory or auditing services to the client and does not advise on the structuring of issues, tokens and/or transactions, the preparation or negotiation of token and/or transaction documents.
2.3 Particula shall provide the services under the contract exclusively for the client. Particula assumes no responsibility, liability or duty of care towards third parties.
2.4 The Client recognises and agrees that the principles, guidelines and methods published on Particula’s website at https://particula.io cannot be interpreted as contractual obligations towards the Client, unless expressly stipulated otherwise in the Contract or in mandatory legal provisions.
2.5 Particula may commission third parties to provide the services. Particula shall remain responsible to the client for the performance of the respective third party.
2.6 Particula provides its services on behalf of the client in English language.
3. Preparation of ratings; public ratings
3.1 Particula carries out quality assessments and analyses of rating objects in the form of ratings on the basis of the contract. The ratings are published as public ratings on the Particula website („platform„). Rating reports are prepared on the ratings. The rating includes information about the respective client as well as about the assets themselves. The information is collected either by recording information provided manually by the client and/or by supplementing it with data that is either collected automatically from freely available sources or provided by external service providers via programming interfaces („APIs„).
3.2 The client recognises that a rating issued by Particula represents only Particula’s current opinion regarding the financial opportunities and risks associated with the rated property and should only be used by the client and/or third parties to a limited extent for decisions regarding the acquisition of a rated property. Particula does not perform any due diligence with regard to the information received. In particular, the client recognises that
- no other risk is taken into account when issuing ratings Particula, including but not limited to: Liquidity risk, market value risk or price volatility;
- the ratings provided by Particula are not recommendations for the purchase or sale of assets that may be the subject of the ratings;
- the ratings do not contain individualised investment advice and do not take into account the specific investment objectives, investment horizon or individual financial situation of individual investors and Particula does not act as an investment advisor or portfolio manager for a client when preparing and publishing the ratings;
- Particula cannot guarantee the accuracy of the information used and cannot guarantee that it is complete and up-to-date;
- Particula will use its assessment criteria to provide an independent assessment at a specific time when the assessment is published;
- Particula’s forecast is based on estimates, so that a rating is not a statement of fact, but only an expression of opinion, which may change in the future and be reflected in a revised rating and Particula is therefore not liable for damages based on decisions based on a rating prepared by Particula;
- the assessments should only be taken into account additionally by the stakeholders involved in their investment decisions and should not or cannot replace their own analyses and assessments;
- the valuations only provide a quality judgement and under no circumstances assess the risk-return profile of an investment or predict whether the parties involved will realise returns, recover the capital invested or incur certain liability risks from an investment.
3.3 The first rating of the rating object takes place as an initial rating. From the time of publication as a public rating, monitoring is carried out by Particula. Particula reserves the right to regularly prepare and publish follow-up ratings of the rating object. For the period during which a follow-up rating is being prepared, Particula may mark previous ratings of the rating object as „under review“ and restrict the publication of the rating or limit access to it.
3.4 Prior to publication of the initial rating or any other intended public rating action, Particula shall inform the client of the public rating action in text form. The contractor is free to request a review of the rating from the client at any time. Ratings under review shall be labelled in accordance with section 3.3.
4. Independence of Particula; rating methodology
4.1 The Client acknowledges that Particula is free to determine, apply, evaluate or change its rating methodologies, models and assumptions from time to time at its sole discretion and in accordance with applicable mandatory law.
4.2 In cases where the lack of reliable data or the complexity of a rating object or the quality of the information is unsatisfactory or raises justified doubts as to whether Particula can provide a rating in accordance with the contract, Particula is authorised to refrain from issuing a rating or to withdraw an existing rating.
4.3 The client recognises that Particula is entitled to review, amend or withdraw ratings at any time; any associated liability is excluded. In particular, Particula may review, amend or withdraw any rating if information (or lack thereof) or changes in the macroeconomic environment or financial markets or a change in Particula’s rating methodologies, models or assumptions justify this in Particula’s opinion. In particular, Particula may, at any time and at its sole discretion, conduct a rating action and publicly announce the result thereof publicly.
4.4 Particula reserves the right to use, publish, disseminate or licence the Public Ratings provided under the Agreement, other analytical reports, including the rating rationale, and any other information and documents prepared by Particula in connection therewith, regardless of whether the respective rating has been withdrawn.
5. Collection of information by Particula
5.1 To create a rating, Particula will use information about the assets and the client. The information is collected either manually from the client and/or automatically by various software solutions used by Particula, in particular applications that automatically collect data from websites („crawlers„).
5.2 The client shall provide Particula with all necessary information and documents, insofar as they are available and have been requested by Particula in connection with the rating. This includes in particular relevant financial reports and other information and data required by Particula for the evaluation of the rating object.
5.3 If the information is collected manually, the client receives access to a non-public area on the Particula platform. There, Particula provides the client with an input mask in which the requested information can be entered by the client, as well as an upload function for requested documents in electronic form. The client shall provide the data in accordance with Particula’s technical specifications and in the format specified by Particula.
5.4 In the case of automated collection of information, Particula will automatically collect information required for the evaluation of the rating object from publicly accessible sources, in particular using crawlers and APIs, also with the involvement of third parties. This applies in particular, but not conclusively:
- Sources associated with the client, in particular the website and accounts on LinkedIn, Github and other comparable social networks and platforms. Among other things, Particula will collect the client’s contact details there as well as documents and information published by the client, such as white papers, contract documents, data protection declarations, pitch decks, reference customers and investors, business partners (e.g. blockchain ecosystem, crypto custodians, tokenisation service providers, service providers for the identification of investors under money laundering law, developers of the smart contracts used, legal and tax advisors involved), as well as the names, position descriptions, qualifications and careers of key employees of the client.
- Third-party sources, in particular trading platforms and data providers (e.g. virtual marketplaces and exchanges, NGOs, public and private registers (e.g. commercial registers, block explorers) and databases (e.g. Crunchbase, Pitchbook), as well as general information and news portals.
5.5 The client confirms that all information, data, records and documents that Particula is provided with for the purposes of the rating or that originate from publicly accessible sources, the content of which the client can influence, are complete, correct and up-to-date. The client is obliged to keep the information up to date and to inform Particula immediately if it becomes aware that information is incorrect. The client confirms that it has determined and passed on the information provided with the care customary in the industry. The parties have regulated the specifications of the delivery and updating of the information in a Service Level Agreement as Annex 1 to this contract.
5.6 The client consents to the automated collection of information and data from sources assigned to him, in particular using crawlers.
5.7 The client is not entitled to demand that certain information and data be taken into account. In particular, the client is aware that the use of information from third-party sources may be excluded by the respective owner.
5.8 The Client shall inform its significant employees in accordance with Art. 13, 14 GDPR about the information specified in this Section 5 about the data processing by Particula described in this section 5. The client is responsible to Particula for ensuring that the data processing described in this section 5 described in this Section 5 can be carried out by Particula in accordance with applicable data protection law. This includes, if necessary, obtaining the appropriate consents from its significant employees.
5.9 The client designates a contact person who acts as the main contact for all questions and concerns in connection with the data provided. Particula shall also appoint a contact person who shall act as the main contact for all questions and concerns in connection with the use of the data by Particula.
5.10 Upon request, Particula shall provide the client with information about who has been granted access to the data and to whom it has been forwarded. Particula will take appropriate measures to ensure the confidentiality and security of the data.
5.11 Particula is authorised to store and continue to use the data collected for a period of 3 years after termination of the contract. After expiry of this period, the data will be deleted, provided that there are no statutory retention obligations. Clauses 6.1 and 6.2 remain unaffected by this.
6. Rights of use to information provided
6.1 Particula is entitled to use the information provided by the client exclusively for the purpose of executing the contract, namely the preparation of ratings and the associated services, as well as the anonymised use in accordance with Section 6.2. This also includes the full or partial publication of the information and its dissemination in public, semi-public or closed user groups. By separate agreement, the parties may agree on the use of information by Particula for specific purposes only.
6.2 Particula is entitled to use the information provided by the client in anonymised form for the preparation of evaluations and statistics for an unlimited period of time. Particula is also authorised to use these evaluations and statistics for marketing purposes and to publish them in whole or in part.
6.3 The client assures that the data provided is free of third-party rights and that no third-party rights are infringed by the use of the data by Particula. The client assures that it has all necessary rights, licences and authorisations to pass on the data provided to Particula. The client grants Particula a non-exclusive, worldwide, royalty-free licence to use, process, store and reproduce the data, including the creation of derivative works such as reviews and ratings. The client also warrants that it has obtained the consent of all its employees to the collection and processing of their personal data by Particula for the purpose of executing the contract; Section 5.7 remains unaffected by this. Should the client become aware that the assurances given are or were incorrect, the client is obliged to inform Particula immediately. The parties may exclude the processing and forwarding of certain data by Particula by separate agreement.
6.4 The client shall indemnify Particula against any claims, actions or demands by third parties which are brought against Particula by third parties due to an infringement of rights through the use of the data provided. Should Particula become the addressee of a regulatory measure due to an infringement of the law through the use of the data provided and suffer damage as a result, the client shall be obliged to compensate Particula for the resulting damage.
6.5 Ratings and rating reports created by Particula as well as layouts, graphics and images created by Particula and content used in connection therewith (hereinafter collectively referred to as „Protected Content„) are the subject of industrial property rights and/or copyrights („IP Rights„) of Particula.
7. Remuneration, premium content and premium services
7.1 The services of both parties shall be provided free of charge. No remuneration is owed.
7.2 Particula may utilise special fee-based services from external third parties („Premium Services„) when preparing the rating and monitoring. The use of Premium Services can result in a more accurate rating. At the request of the client, a rating or monitoring can be carried out using Premium Services for an additional fee. The Premium Services, the amount of the fee to be paid to Particula and the payment modalities shall be the subject of a separate agreement between the parties in each individual case.
8. Rights of use to ratings
8.1 Subject to the provisions of this clause 8 and only for the duration of the contract, Particula grants the client a non-exclusive, geographically unlimited, non-sublicensable and non-transferable right to use ratings or rating reports for its own purposes. In any case, the client must use the format prescribed by Particula and retain the copyright notice or other reference to the origin of the rating provided by Particula. The client is not authorised to attach its own copyright notice or other references to the origin of the rating or the rating report. The rights of the client under this section 8.1 end with the withdrawal of the respective rating.
8.2 The client is not authorised to publish a rating or other information and documents created by Particula in this context. Only in the case of a public rating already published by Particula is the client authorised to publish the public rating on his company website as well; in this case he uses the format prescribed by Particula and retains the copyright notice or other references to the origin of the rating provided by Particula. The client is not authorised to add its own copyright notice or other references to the origin of the rating. The rights of the client under this clause 8.2 end with the withdrawal of the respective rating. If the rating is withdrawn, the client must immediately delete the public rating from its company website and no longer use it externally in any way.
8.3 Particula does not consent to the use of its ratings or rating reports for any purpose other than their intended use. In particular, Particula does not consent to the use of its ratings, rating actions, rating reports and other information and documents prepared by Particula in connection with a rating in registration applications, circulars, prospectuses or listings. Furthermore, Particula may not be referred to as an „expert“ or by any similar designation under applicable laws or other regulatory guidelines, rules or recommendations.
8.4 Particula reserves all rights (including, but not limited to, copyrights, rights of use and exploitation and other intellectual property rights) in relation to the ratings, rating action announcements, reports and other services. The Client is not authorised to use them for purposes other than those specified in this section without the prior written consent of Particula.
9. Exemption from liability
The client shall indemnify Particula on first demand against any and all losses, claims, damages, costs (including attorneys‘ fees) or injuries arising out of or in connection with
- incomplete, inaccurate or outdated information and/or documentation provided to Particula by the Client;
- any information and/or documentation provided to Particula by the client without any necessary authorisation from third parties;
- the client’s failure to inform Particula immediately of material changes that could have affected the public rating,
- Violations of section 5.7 of this contract and/or
- the use of the ratings, rating actions and rating reports by the client for a purpose other than the intended purpose and/or contrary to the terms of the contract and these General Terms and Conditions.
10. Cancellation / contract term Monitoring
10.1 Both parties may terminate the corresponding order for the preparation of a rating at any time until the work has been prepared, i.e. until the decision on the rating grade of the respective rating has been made.
10.2 The minimum contract term is one year, beginning on the date of publication of the initial rating. The contract term shall be tacitly extended by a further contract year unless one party cancels the contract in text form 3 months before the end of the respective contract year. The right to terminate the assignment with immediate effect in accordance with clause 10.3 shall remain unaffected.
10.3 Either party may extraordinarily terminate the respective order with immediate effect for good cause. In particular, a reason for immediate cancellation exists if:
- the other party commits a material breach of its obligations under the contract and such breach, if capable of being cured or remedied, has not been cured or remedied by the other party within fourteen days of receipt of a written request from the terminating party;
- a competent authority (e.g. the German Federal Financial Supervisory Authority (BaFin)) demands the amendment or cancellation of this agreement or the execution of this agreement is objected to or prohibited;
- Particula determines that the continuation of the respective order or contract or the preparation of the rating(s) violates applicable law;
- insolvency proceedings are opened against the assets of a party or are dismissed for lack of assets.
10.4 The parties agree that the contract is automatically terminated without the need for cancellation if the rating is withdrawn.
Particula is authorised, even after termination of the contract, to carry out ratings and rating actions at its own discretion in relation to the client and issues for which the client is responsible and to publish the results of these actions. publicly. For this purpose, Particula shall only use such information that it is authorised to use even after termination of the contract, as well as publicly accessible information. In this case,
10.5 Particula is authorised to indicate that the client is no longer commissioned to prepare this rating and that ratings or rating actions are carried out by Particula at its own discretion.
11. Limitation of liability
11. Particula shall be liable without limitation if the cause of damage is based on intent or gross negligence. Furthermore, Particula shall be liable for the slightly negligent breach of essential obligations, the breach of which jeopardises the achievement of the purpose of the contract, or for the breach of obligations, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contracting parties regularly rely (cardinal obligations). In this case, however, Particula shall only be liable for the foreseeable damage typical of the contract. Particula shall not be liable for slightly negligent breaches of obligations other than those mentioned in the preceding sentences.
11.2 The above limitations of liability shall not apply to injury to life, limb or health, to fraudulently concealed defects and to defects in respect of which a guarantee of quality has been given. Liability under the Product Liability Act remains unaffected.
11.3 Insofar as Particula’s liability is excluded or limited, this shall also apply to the personal liability of Particula’s employees, legal representatives and vicarious agents.
11.4 Should this contract exceptionally have a protective effect in favour of third parties, the above limitations of liability shall also apply to third parties.
12. Delivery times, delay
12.1 Delivery times, if stated, are non-binding unless they are expressly designated as binding in writing.
12.2 Delays due to force majeure events shall entitle Particula to postpone the fulfilment of its obligations for the duration of the delay.
13. Potential conflict of interest
13.1 The client assures and confirms that, after appropriate investigation
- neither the client nor an affiliated third party is directly connected to Particula through control;
- neither the client nor an affiliated third party holds 5% or more of the capital or voting rights of Particula;
- that no person directly or indirectly entrusted with the preparation of ratings at Particula is a member of the administrative or supervisory board of the client or an affiliated third party;
- that no shareholder or employee of Particula who holds 5% or more of the capital or voting rights of Particula or is otherwise in a position to exert a significant influence on the business activities of Particula is a member of the administrative or supervisory board of the client or an affiliated third party.
13.2 The client undertakes to inform Particula immediately if it discovers that one of the details in accordance with clause 113.1 a) to d) is no longer applicable.
Amendments to an order and/or these General Terms and Conditions shall be notified to the client in text form no later than two weeks before the proposed date of entry into force. If the client does not agree to the proposed amendment, either party may terminate the order affected by the amendment before the proposed date of entry into force with immediate effect and without additional costs. In the notification, Particula shall specify the order in question or the General Terms and Conditions affected by the proposed amendment and expressly draw the client’s attention to the right of cancellation. If the order is cancelled, other orders that are not affected by the proposed change are not subject to this right of cancellation.
15. Other provisions
15.1 The Client recognises that nothing in the Contract or these General Terms and Conditions shall prevent Particula from complying with its obligations regarding disclosure, publication, information and other mandatory applicable law.
15.2 Unless otherwise stipulated in the contract and/or these General Terms and Conditions, notifications and declarations by one party to the other party must be made in text form in accordance with Section 126b BGB (e.g. e-mail).
15.3 The client is not authorised to assign rights or claims arising from or in connection with a contract to third parties without the prior written consent of Particula.
15.4 The contract shall be governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and to the exclusion of German private international law.
15.5 If the client is a merchant or a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany, the exclusive place of jurisdiction for all disputes arising from or in connection with the contract shall be Munich, Germany.
15.6 Should individual provisions of the contract or these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
15.7 In the event of inconsistencies between the German and English versions, the German version shall take precedence.
Unless otherwise stipulated in these General Terms and Conditions, amendments or additions to the respective contract or these General Terms and Conditions are only valid if they are made in text form. This also applies to any amendment or cancellation of this provision.
15.8 Unless otherwise stipulated in these General Terms and Conditions, amendments or additions to the respective contract or these General Terms and Conditions are only valid if they are made in text form. This also applies to any amendment or cancellation of this provision.