General Terms and Conditions for the Preparation of Digital Asset Ratings

1 Definitions

1.1 “General Terms and Conditions” refers to these General Terms and Conditions.
1.2 “Contact Person” refers to the person designated by the Issuer in the Agreement to act as the primary contact for all questions and concerns related to the data provided by the Issuer, as well as the person designated by Particula in the Agreement to act as the primary contact for all questions and concerns of the Issuer related to Particula’s use of the data.
1.3 “Asset” refers to crypto assets, tokens or other digitised 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 Issuer and Particula.
1.7 “Initial rating” refers to the first rating that is created for a rating object.
1.8 “Issuer” refers to a company or other legal entity which is the subject of the valuation and whose assets are to be valued.
1.9 “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.
1.10 “Party” refers to one of the parties to the contract.
1.11 “Private rating” refers to a rating that is provided exclusively to the client and is not intended for public disclosure or dissemination.
1.12 “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.
1.13 “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.
1.14 “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.
1.15 “Rating factsheet” refers to the summary of the detailed rating report published by Particula.
1.16 “Rating object” refers to assets of all types and issuers of these assets
1.17 “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.
1.18 “Review” refers to the placement of a rating “under review” for a possible upgrade, a possible downgrade or for a possible reassessment.
1.19 “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 intercompany agreement within the meaning of Sections 15 et seq. AktG (German Stock Corporation Act).
1.20 “Related Third Party” refers to the originator, initiator, sponsor, service provider or any other party that interacts with Particula on behalf of the issuer, including any person directly or indirectly related to the issuer by control.
1.21 “Contract” refers to the contract between Particula and the Issuer, of which these General Terms and Conditions form an integral part, and which consists of the order form(s) including the annexes.
1.22 “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 Provision

2.1 Particula provides 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 issuer and does not advise on the structuring of 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 German or English.

3 Preparation of Ratings; Public Ratings

3.1 Particula performs quality assessments and analyses of rating objects in the form of ratings, rating reports and rating factsheets on the basis of the contract. The ratings are either made available exclusively to the client as private ratings or published as public ratings on the Particula website (“platform”). The rating includes information about the respective issuer as well as about the assets themselves. The information is collected either by recording information provided manually by the client and/or the issuer and/or supplemented by data collected automatically either 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 or issuer 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 in the case of a public rating or delivery in the case of a private rating, monitoring is carried out by Particula. Particula reserves the right to regularly prepare follow-up ratings of the rating object and to publish these in the case of public ratings. Particula may mark previous ratings of the rating object as “under review” for the period during which a follow-up rating is being prepared and restrict publication of the rating and access to it.
3.4 A client has no claim against Particula for the preparation of a rating, whether in the form of an initial rating or a follow-up rating, unless otherwise agreed.
3.5 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 Private Ratings

4.1 Private ratings are provided exclusively to the client and are to be treated as strictly confidential by the client. The Client shall not share or disclose any Private Ratings to any third party without Particula’s prior written consent, which shall be given at Particula’s sole discretion. Should Particula give its written consent to the disclosure of a Private Rating, such consent shall always be subject to, but not limited to, the full fulfilment of the following conditions:

• Third parties to whom a private rating is communicated may not rely or refer to such a rating when making investment decisions;
• Particula accepts no liability or responsibility towards third parties in connection with a private rating;
• Third parties to whom a Private Rating is communicated must treat the Private Rating as strictly confidential and may not disclose or otherwise divulge the Private Rating and/or its contents to any other person, company, institution or other legal entity;
• The client has informed the third party of a) – c) in connection with the disclosure so that the third party fulfils the requirements of a) – c).

4.2 The Client acknowledges and agrees that Particula may publish a Private Rating if it has become public or has become available to a wide range of recipients through a disclosure other than an act of Particula or one of its affiliates.

5 Independence of Particula; Rating Methodology

5.1 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.
5.2 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.
5.3 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 warrant 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.
5.4 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.

6 Collection of Information by Particula

6.1 To prepare a rating, Particula will use information about the assets and the issuer of the assets. The information is collected either manually from the client and/or issuer and/or automatically by various software solutions used by Particula, in particular applications that automatically collect data from websites (“crawlers”).
6.2 The client and/or issuer 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.
6.3 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.
6.4 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.

6.5 The client confirms that all information, data, records and documents provided to Particula for the purposes of the rating, or which originate from publicly accessible sources over whose content the client has 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.
6.6 The client consents to the automated collection of information and data from sources assigned to him, in particular using crawlers.
6.7 The client is not entitled to the consideration of certain information and data. In particular, the client is aware that the use of information from third-party sources may be excluded by the respective owner.
6.8 The client shall inform its significant employees in accordance with Art. 13, 14 GDPR about the data processing carried out by Particula as described in this Section 7. The client is responsible to Particula for ensuring that the data processing described in this Section 6 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.
6.9 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.
6.10 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.
6.11 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. Sections 7.1 and 7.2 remain unaffected by this.

7 Rights of Use to Information Provided

7.1 Particula is entitled to use the information provided by the client and issuer exclusively for the purpose of executing the contract, namely the preparation of ratings and the associated services, as well as anonymised use in accordance with Section 7.2. This also includes the full or partial publication of the information and its forwarding 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.
7.2 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.
7.3 The client assures that the data provided is free of third-party rights and that the use of the data by Particula does not infringe any third-party rights. The client assures that he 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 6.7 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.
7.4 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.
7.5 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.

8 Remuneration, Premium Content and Premium Services

8.1 Unless expressly agreed otherwise, the customer shall pay Particula the fee agreed by selecting the respective licence model during the ordering process for the creation of the initial rating and for the creation of the monitoring and all subsequent ratings.
8.2 Unless expressly agreed otherwise, the fees are net plus applicable VAT.
8.3 Unless expressly agreed otherwise, invoices for the initial rating and all subsequent ratings are issued immediately after the order is placed, while monitoring is invoiced annually in advance. All amounts are due upon invoicing. If the client issues Particula with a SEPA direct debit mandate, Particula shall debit the invoice amount when the invoice is issued.
8.4 Particula may use special fee-based services of external third parties (e.g. assignment of identifiers) (“Premium Services”) for the preparation of the initial rating and monitoring as well as all subsequent ratings. At the request of the client, a rating or monitoring can be carried out using the 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.
8.5 Particula reserves the right to adjust the agreed fee for monitoring and all subsequent ratings in accordance with section 8.1 at the end of the respective contract term due to increased operating costs, an extended scope of functions or increased usage volume of the customer compared to other users, but only in the amount of the additional costs actually incurred. Particula shall inform the customer of this in writing or text form at least three months before the end of the respective contract term. In the event of an increase of more than 10% compared to the previous year, the customer may terminate the contract with a notice period of two months to the end of the respective contract.

9 Rights of Use to Ratings

9.1 Subject to the provisions of this clause 9 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. Furthermore, the rights of the client under this Section 9.1 end with the withdrawal of the respective rating.
9.2 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 section 9.2 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.
9.3 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, 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.
9.4 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. 

10 Exemption from Liability

The client shall indemnify Particula on first demand against any 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 and/or issuer;
• any information and/or documentation provided to Particula by the client and/or issuer without any required third party authorisation;
• the client’s failure to inform Particula immediately of material changes that could have affected the public rating and/or the private rating,
• breaches of Section 6.7 of this Agreement 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.

11 Cancellation / Contract Term Monitoring

11.1 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.
11.2 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 11.3 remains unaffected.
11.3 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 contracting party commits a material breach of its obligations under the contract and this breach – if it can be cured or remedied – has not been cured or remedied by the other contracting party within fourteen days of receipt of a written request from the terminating contracting 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.

11.4 The parties agree that the contract is automatically terminated without the need for cancellation if the rating is withdrawn.
11.5 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 publicly announce the results thereof. 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, 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.

12 Limitation of Liability

12.1 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.
12.2 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.
12.3 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.
12.4 Should this contract exceptionally have a protective effect in favour of third parties, the above limitations of liability shall also apply to third parties.

13 Delivery Times, Delay

13.1 Specified delivery times are non-binding unless they are expressly designated as binding in writing.
13.2 Delays due to force majeure events shall entitle Particula to postpone the fulfilment of its obligations for the duration of the delay.

14 Confidentiality

14.1 Unless expressly agreed otherwise in the contract or in these General Terms and Conditions, each party undertakes to treat all Confidential Information as confidential.
14.2 Confidential information may not be reproduced or published or otherwise made accessible to third parties or used or utilised for purposes outside the scope of the contract without the prior written consent of the disclosing party.
14.3 A Party may disclose Confidential Information if and to the extent required by a competent authority, court or other governmental body. Prior to any such disclosure, the obligated Party shall promptly notify the other Party of the need for such disclosure, the identity of the requesting entity and the scope of the required disclosure. The obligated party shall endeavour to limit the scope of the Confidential Information to be disclosed as far as possible.
14.4 Notwithstanding anything to the contrary in this Section 14, Particula may share any Confidential Information with any of its Affiliates, provided that such Affiliate also keeps the Confidential Information confidential to the extent provided in this Section 14.

15 Potential conflict of interest

15.1 The client assures and confirms that, after appropriate investigation

• neither the principal, the issuer nor an affiliated third party is directly related to the particula through control;
• neither the principal, the issuer 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, the issuer 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 exercise a significant influence on the business activities of Particula is a member of the administrative or supervisory board of the client, the issuer or an affiliated third party.

15.2 The client undertakes to inform Particula immediately if it realises that one of the details in accordance with section 15.1 a) to d) is no longer correct.

16 Changes

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.

17 Other provisions

17.1 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.
17.2 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).
17.3 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.
17.4 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.
17.5 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.
17.6 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.
17.7 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.