Terms and Conditions – Rating Engagement

1 Definitions 

1.1 "Terms and conditions" refers to these Terms and Conditions. 

1.2 "Contact person" refers to the person named by the customer in the contract to whom Particula GmbH (hereinafter: "Particula") is to transmit ratings and related information. 

1.3 "Asset" refers to crypto assets, tokens, or other digitized assets. 

1.4 "Order" refers to an (individual) order for individual services to be provided by Particula under the contract in accordance with the respective order form. 

1.5 "Order form" refers to the order form attached to the contract. 

1.6 "Third party" refers to any person, company, institution, or other legal entity other than the customer and Particula. 

1.7 "Initial rating" refers to the first rating created for a rating object. 

1.8 "Inside information" refers to information that is considered inside information within the meaning of Regulation (EU) No. 596/2014 of the European Parliament and of the Council of April 16, 2014, on market abuse ("Market Abuse Regulation or MAR") in its currently valid version. 

1.9 "Customer" refers to a company or other legal entity that receives services as a client under this agreement. 

1.10 "Monitoring" refers to the ongoing monitoring and preparation of a follow-up rating for the respective rating object in accordance with this agreement. It begins on the day following the date on which the initial rating was issued. 

1.11 "Party" refers to one of the parties to the contract. 

1.12 "Preliminary rating" refers to a rating that was assigned prior to an Initial Rating. It is not an Initial Rating, but rather an indication. 

1.13 "Private rating" refers to a rating that is made available exclusively to the customer and is not intended for public disclosure or distribution. 

1.14 "Public rating" refers to a rating that is not made available exclusively to the customer and is intended for public disclosure. 

1.15 "Rating" refers to Particula's opinion on the assessment of a rating object in accordance with Particula's applicable rating methodology, whereby this assessment is summarized in a rating score and justified 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. 

1.16 "Rating action" refers to a rating decision by Particula, in particular, but not exclusively, the assignment of a rating, the upgrade or downgrade of a rating, the review of a rating, or the withdrawal of a rating. 

1.17 "Rating fact sheet" refers to the summary of the detailed rating report published by Particula.  

1.18 "Rating object" refers to assets of all kinds and issuers of these assets. 

1.19 "Rating personnel" refers to Particula analysts, analyst managers, or other Particula employees involved in rating decisions, analysis, or the preparation of a rating. 

1.20 "Rating report" refers to the document containing the analytical rationale for a rating decision and may include analytical findings, rating drivers, and important transparency disclosures related to the analysis. 

1.21 "Review" refers to placing a rating "under review" for a possible upgrade, possible downgrade, or possible reassessment. 

1.22 "Particula" refers to Particula GmbH, Reinachstraße 57, 80995 Munich, Germany, registered in the Commercial Register B of the Munich Local Court under HRB 282750. 

1.23 "Text Form" refers to text form in accordance with Section 126b of the German Civil Code (BGB), e.g., email. 

1.24 "Affiliated companies" are legally independent companies that are subsidiaries and parent companies, controlled or controlling companies, members of a group of companies, companies with cross-shareholdings, or parties to a company agreement within the meaning of §§ 15 ff. AktG (German Stock Corporation Act). 

1.25 "Affiliated third party" refers to the originator, initiator, sponsor, service provider, or any other party that interacts with Particula on behalf of the customer, including any person directly or indirectly affiliated with the customer through control. 

1.26 "Agreement" refers to the agreement between Particula and the customer, of which these General Terms and Conditions form an integral part, and which consists of the order form(s) including the annexes. 

1.27 "Confidential information" refers to information, regardless of the form in which it is recorded, provided by one party to the other party, whereby the party providing the information has indicated in writing or verbally, in cases where written indication is not feasible, that the information is to be considered "Confidential." Exceptions to this are information that is publicly available, has become generally available to the public, or has been obtained by the receiving party without using the information received from the other party. 

2 Provision of Services 

2.1 Particula provides its services, which consist of the preparation of ratings and other services, in accordance with the terms of the contract. 

2.2 The customer acknowledges that a rating issued by Particula merely represents Particula's current opinion regarding the financial opportunities and risks associated with the rated object and should only be used by the customer and/or third parties to a limited extent. When issuing ratings, Particula does not take into account any other risks, including but not limited to: liquidity risk, market value risk, or price volatility. The ratings provided by Particula are not recommendations to buy or sell the financial instruments that are the subject of the ratings and do not reflect the value of such financial instruments. The ratings do not constitute individual investment advice and do not take into account the specific investment objectives, investment horizon, or individual financial situation of individual investors. In preparing and publishing the ratings, Particula does not act as an investment advisor or portfolio manager for any customer. Particula cannot guarantee the accuracy of the information used and cannot guarantee its completeness or timeliness. Particula will use its due diligence to provide an independent and objective assessment at a specific point in time when the assessment is published. The forecast is based on estimates, so an assessment 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. Particula is therefore not liable for damages resulting from decisions based on an assessment prepared by Particula. The assessments should only be taken into account by the parties involved in their investment decisions and cannot replace their own analyses and assessments. The ratings therefore only provide a quality assessment and under no circumstances assess the risk/return profile of an investment, nor do they indicate whether the parties involved will generate returns, recover the capital invested, or incur certain liability risks from an investment. 

2.3 Particula does not provide any financial, legal, tax, advisory, or auditing services to the customer and does not advise on the structuring of tokens and/or transactions, the creation or negotiation of token and/or transaction documents. 

2.4 Particula provides its services exclusively for the benefit of the customer. Particula assumes no responsibility, liability, or duty of care towards third parties. 

2.5 The customer acknowledges 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 customer, unless expressly stated otherwise in the contract or in mandatory legal provisions. 

2.6 Particula may commission third parties to provide the services. Particula remains responsible to the customer for the performance of the respective subcontractor. 

2.7 Particula provides its services on behalf of the customer in English. Upon agreement, Particula will provide translations into other languages at the customer's expense. 

3 Remuneration; Due Date 

3.1 The remuneration to be paid by the customer to Particula is specified in the respective order form. 

3.2 With regard to the remuneration for a Preliminary Rating, Particula reserves the right to demand an advance payment of 100%, which is due after the order for the respective Preliminary Rating and is payable within 30 days of receipt of the corresponding invoice. 

3.3 With regard to the remuneration for an Initial Rating, Particula reserves the right to demand a 100% advance payment, which is due after the Initial Rating has been ordered and must be paid within 30 days of receipt of the corresponding invoice. 

3.4 The remuneration for the first monitoring, including follow-up rating, is due on the first anniversary of the initial rating and must be paid within 30 days of receipt of the corresponding invoice. Subsequent remuneration for monitoring, including follow-up ratings, is due on the respective anniversary of the previous rating and must be paid within 30 days of receipt of the corresponding invoice. 

3.5 Any adjustment to the remuneration shall be communicated to the customer in writing at least two weeks before the planned effective date. If the customer does not agree to the proposed adjustment to the remuneration, either party may terminate the order affected by the adjustment with immediate effect and without additional costs before the proposed effective date. In the notification, Particula will identify the order affected by the adjustment and expressly inform the customer of this right of termination. If the respective order is terminated, other orders that are not affected by the planned adjustment are not subject to this right of termination. 

3.6 All amounts are net amounts excluding VAT or other taxes. 

3.7 In the event of late payment, statutory default interest of nine percentage points above the base rate shall be payable. Further claims by Particula remain unaffected. 

4 Independence of Particula; Rating Methodology

4.1 The customer acknowledges that Particula is free to determine, apply, evaluate, or change its rating methodologies, models, and assumptions from time to time at its own discretion and in accordance with applicable mandatory law. Particula's current rating methodologies, models, and assumptions are published on Particula's website at https://particula.io. 

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 reasonable doubts as to whether Particula can provide a rating in accordance with the contract, Particula is entitled to refrain from issuing a rating or to withdraw an existing rating. 

4.3 The customer acknowledges that Particula is entitled to review, change, or withdraw the assigned ratings at any time; any liability in this regard is excluded. In particular, Particula may review, change, or withdraw any assigned rating if information (or lack thereof) or changes in macroeconomic conditions 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, carry out a rating action and publicly announce its results. 

4.4 Particula reserves the right to use, publish, distribute, or license the public ratings provided under the agreement, other analytical reports, including the rationale for the rating, and all other information and documents prepared by Particula in connection therewith, regardless of whether the respective rating has been withdrawn. 

5 Notification of a Public Rating Action 

5.1 Particula shall notify the customer of any intended public rating action during the customer's business hours, but in any case at least three full business days prior to the publication of the notice of the public rating action, in the form of a notification. The customer undertakes to review this notice in order to alert Particula to any factual errors or confidential information contained therein. 

5.2 If the notification of the rating action contains information that the customer considers confidential or factually incorrect and that they do not wish to include in the notification, they must notify Particula in writing within two business days of the notification by sending an email to info@particula.io. If the customer has not notified Particula within two business days, this shall be deemed confirmation by the customer that the information contained in the notification and scheduled for publication is not considered confidential information. The customer acknowledges and agrees that Particula is entitled to publish the notification. 

6 Private Ratings

6.1 Private Ratings are provided exclusively to the customer and must be treated as strictly confidential by the customer. The customer may not disclose or share private ratings with third parties without the prior written consent of Particula, which is at Particula's sole discretion. If Particula gives its written consent to the disclosure of a private rating, this consent is always subject to, but not limited to, the full fulfillment of the following conditions: 

a) Third parties to whom a private rating is disclosed may not rely on or refer to such a rating when making investment decisions; 

b) Particula assumes no liability or responsibility to third parties in connection with a private rating; 

c) Third parties to whom a private rating is disclosed must treat the private rating as strictly confidential and may not disclose the private rating and/or its content to any other person, company, institution, or other legal entity; 

d) The customer has informed the third party a) - c) in connection with the disclosure so that the third party fulfills the requirements of a) - c). 

6.2 The customer acknowledges and agrees that Particula may publish a private rating if it has become public or has become accessible to a wide range of recipients through disclosure other than by an act of Particula or one of its affiliated companies. 

7 Rights of Use

7.1 Subject to the provisions of this Section 7 and only for the duration of the Agreement, Particula grants the Customer 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 customer must use the format prescribed by Particula and retain the copyright notice or other references to the origin of the rating provided by Particula. The customer is not entitled to affix its own copyright notice or other references to the origin of the rating or the rating report. The customer's rights under this Section 7.1 shall also terminate upon withdrawal of the respective rating. 

7.2 The customer is not entitled 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 customer entitled to publish the public rating on its company website as well; in this case, it shall use the format prescribed by Particula and retain the copyright notice or other references to the origin of the rating provided by Particula. The customer is not entitled to add their own copyright notice or other references to the origin of the rating. The customer's rights under this Section 7.2 shall end upon withdrawal of the respective rating. In the event of withdrawal of the rating, the customer must immediately delete the public rating from their company website and no longer use it externally in any way.

7.3 Particula does not consent to the use of the ratings or rating reports it has created for any purpose other than the intended purpose. In particular, Particula does not consent to the use of its ratings, rating actions, reports, and other information and documents created by Particula in connection with a rating in registration applications, circulars, prospectuses, or stock exchange listings. Furthermore, Particula may not be named as an "expert" or under a similar designation within the framework of applicable securities laws or other regulatory guidelines, rules, or recommendations. 

7.4 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, announcements of rating actions, reports, and other services. The customer is not entitled to use these for purposes other than those specified in this section without the prior written consent of Particula. 

8 Customer Information

8.1 The customer shall immediately provide Particula's rating staff with all information and documents available to the customer and requested by Particula in connection with the rating. This includes: 

a) The customer is obliged to provide Particula immediately with all relevant financial reports and other information and data required by Particula so that Particula can evaluate the rating object and/or the customer and/or the respective financial data and/or the customer's investment vehicle; 

b) The client is obliged to provide Particula with updated information (including, but not limited to, information about material changes that could affect the associated ratings) without delay for the purpose of ongoing monitoring of these ratings. 

8.2 The customer shall respond promptly to Particula's analytical questionnaires and all other reasonable requests. 

8.3 Particula does not perform due diligence with respect to the information received from the customer. The customer is responsible for and confirms that all information, data, records, and documents provided to Particula for the purposes of the rating are complete, accurate, and up-to-date and do not infringe on the rights of third parties. The customer acknowledges that Particula relies on this information in its ratings.

9 Indemnification

The customer shall indemnify Particula upon first request against any losses, claims, damages, costs (including legal fees) or injuries arising out of or in connection with 

a) incomplete, inaccurate, or outdated information and/or documentation provided to Particula by the customer; 

b) any information and/or documentation provided to Particula by the customer without any necessary third-party approval; 

c) the Customer's failure to promptly notify Particula of any material changes that could have affected the Public Rating and/or Private Rating for which the Customer has ordered monitoring; and/or 

d) the use of the ratings, rating actions, and rating reports by the customer for a purpose other than that intended and/or contrary to the terms of the contract and these General Terms and Conditions. 

10 Termination / Contract Term Monitoring

10.1 The customer may terminate the corresponding order for the preparation of a preliminary or initial rating at any time until the work has been completed, i.e. until a decision has been made on the rating grade for the respective rating. 

10.2 If the customer has ordered monitoring, there is a minimum contract term of one year beginning on the date of publication of the rating. The contract term is extended by a further contract year unless one party terminates the contract in writing three months before the end of the respective contract year. The right to terminate the order with immediate effect in accordance with 10.1 remains unaffected. In the event of such termination, the monitoring fee shall be paid pro rata until the date of termination. Any overpayment shall be refunded by Particula within 30 days of the termination taking effect. 

10.3 Each party may terminate the respective order with immediate effect for good cause. In particular, there is a reason for immediate termination if: 

a) the other party commits a material breach of its obligations under the contract and this breach – insofar as it can be remedied or rectified – has not been remedied or rectified by the other party within fourteen days of receipt of a written request from the terminating party; 

b) a competent authority (e.g., the Federal Financial Supervisory Authority (BaFin)) requires the adjustment or cancellation of this contract or objects to or prohibits the execution of this contract; 

c) Particula determines that the continuation of the respective order or contract or the preparation of the rating(s) violates applicable law; 

d) insolvency proceedings are opened against the assets of a party or are dismissed for lack of assets.In the event of such termination, Section 10.4 shall apply accordingly to any one-time fees for initial ratings or other rating services. The monitoring fee shall be paid pro rata temporis until the date of termination. Any overpaid fees shall be refunded by Particula within 30 days of the termination taking effect. 

10.4 In the event of termination of the respective order in accordance with 10.1, the customer is obliged to pay Particula the following percentage of the regular fee ("break-up fee"): 

- 50% if the termination occurs before Particula receives the documents requested for the preparation of the rating or other rating services; 

- 100% if the termination occurs after Particula has received the documents requested for the preparation of the rating or other rating services. 

The break-up fee shall either be offset against the remuneration already paid or, if the contractual remuneration has not yet been paid, shall be payable within 14 days of termination. 

If Particula has already received payments that exceed the amount of the break-up fee, the remaining difference shall be refunded to the customer within 30 days of termination. The customer is entitled to prove that Particula is entitled to a significantly lower remuneration than the break-up fee requested. 

10.5 The parties agree that the contract shall be automatically terminated upon withdrawal of the rating without the need for termination. The monitoring fee shall be payable pro rata temporis until the date of termination. Any excess remuneration paid shall be refunded by Particula within 30 days of termination. 

10.6 After termination, Particula may, at its own discretion, continue all ratings as commissioned ratings. 

11 Limitation of Liability

11.1 Particula shall be liable without limitation if the cause of damage is based on intent or gross negligence. Furthermore, Particula is liable for the slightly negligent breach of essential obligations, the breach of which jeopardizes the achievement of the purpose of the contract, or for the breach of obligations, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contracting parties regularly rely (cardinal obligations). In this case, however, Particula shall only be liable for foreseeable damage typical for this type of 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 do not apply to injury to life, limb, or health, to fraudulently concealed defects, or to defects for which a quality guarantee has been given. Liability under the Product Liability Act remains unaffected. 

11.3 Insofar as Particula's liability is excluded or limited, this also applies to the personal liability of Particula's employees, legal representatives, and vicarious agents.

11.4 If, in exceptional cases, this contract has a protective effect in favor of third parties, the above limitations of liability shall also apply to third parties.

12 Delivery Times, Delay

12.1 Stated delivery times are non-binding unless they are expressly designated as binding in writing.

12.2 Delays due to events of force majeure entitle Particula to postpone the fulfillment of its obligations for the duration of the delay.

13 Confidentiality

13.1 Unless expressly agreed otherwise in the contract or in these General Terms and Conditions, each party undertakes to treat all confidential information as confidential.

13.2 Confidential information may not be reproduced or published or otherwise made available to third parties or used or exploited for purposes outside the scope of the contract without the prior written consent of the disclosing party.

13.3 A party may disclose Confidential Information if and to the extent required by a competent authority, court, or other government agency. Prior to such disclosure, the obligated party shall promptly notify the other party of the necessity of such disclosure, the identity of the requesting authority, and the scope of the required disclosure. The obligated party shall endeavor to limit the scope of the Confidential Information to be disclosed as far as possible.

13.4 Notwithstanding any provisions to the contrary in this Section 13, Particula may share all Confidential Information with an Affiliate, provided that the Affiliate also treats the Confidential Information as confidential to the extent provided for in this Section 13.

14 Potential Conflict of Interest

14.1 The customer assures and confirms that, after reasonable investigation:

a) neither the Customer nor any Affiliated Third Party is directly affiliated with Particula through control;

b) neither the Customer nor any Affiliated Third Party holds 5% or more of the capital or voting rights of Particula;

c) no rating personnel are members of the administrative or supervisory board of the customer or an affiliated third party;

d) 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 exercise significant influence over the business activities of Particula is a member of the administrative or supervisory board of the customer or an affiliated third party.

14.2 The customer undertakes to inform Particula immediately if it discovers that any of the information provided in accordance with clauses 14 a) to d) is no longer accurate.

15 Changes

Changes to an order and/or these General Terms and Conditions shall be communicated to the customer in writing at least two weeks before the proposed effective date. If the customer does not agree to the proposed change, either party may terminate the order affected by the change with immediate effect and at no additional cost before the proposed effective date. In the notification, Particula will specify the respective order or the General Terms and Conditions affected by the proposed change and expressly inform the customer of the right of termination. If the order is terminated, other orders that are not affected by the proposed change are not subject to this right of termination.

16 Other Provisions

16.1 The customer acknowledges that no provision in the contract or in these General Terms and Conditions prevents Particula from complying with its obligations regarding disclosure, publication, information, and other mandatory applicable law.

16.2 Unless otherwise specified in the contract and/or these General Terms and Conditions, communications and declarations from one party to the other must be made in writing.

16.3 The customer is not entitled to assign rights or claims arising from or in connection with a contract to third parties without the prior written consent of Particula.

16.4 The customer is not entitled to offset claims by Particula arising from the contract unless the customer's claim is undisputed or has been legally established.

16.5 The contract is governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and excluding German private international law.

16.6 If the customer is a merchant or a legal entity under public law or a special fund under public law, or if they have no general place of jurisdiction in Germany, the exclusive place of jurisdiction for all disputes arising from or in connection with the contract is Munich, Germany.

16.7 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.

16.8 Unless otherwise specified in these General Terms and Conditions, amendments or additions to the respective contract or these General Terms and Conditions shall only be valid if made in writing. This also applies to any amendment or cancellation of this provision.