Terms & Conditions Governing Icecap Diamond Tokens

Version: July 1, 2020

Terms & Conditions Governing Icecap Diamond Tokens

NOTICE: NO DIAMONDS WILL BE REDEEMED WITHOUT ICECAP COLLECTING FULL KYC (KNOW YOUR CUSTOMER) INFORMATION, AND ANY OTHER INFORMATION REQUIRED BY STATUTES OR REGULATIONS APPLYING AT THE TIME.

  1. DEFINITION
    “Icecap Diamond Token” (“Token”) is a non-fungible token (“NFT”) based on the Ethereum ERC721 standard.
  1. OVERVIEW
    These Terms and Conditions (“Terms and Conditions” or “Agreement”) set forth the legal relationship between Icecap, LLC, (“Icecap”) and the owner of a Token (“Owner”).
  1. GENERAL DESCRIPTION OF ICECAP’S BUSINESS MODEL
    Icecap buys diamonds on the wholesale market, creates a Token that connects to a single diamond, and offers the Token for sale on OpenSea.io and perhaps other ERC721-supporting platforms. The Token is offered for sale at generally twenty percent above the diamond’s wholesale purchase price (the price Icecap paid for the diamond), which is similar to popular diamond e-tail sites. The diamond itself is stored in a vault in an insured facility at 580 Fifth Avenue, New York. While the Token may change hands many times, it is always redeemable for the diamond itself—with the payment of certain additional fees, including sales tax if applicable. (See details, below.) Note: The ownership of a Token is not the same as ownership of a diamond. The title to the diamond stays in Icecap’s name, and the diamond itself, under Icecap’s control, until and unless a Token is redeemed. Tokens are analogous to a prepaid “gift card” towards ownership of a specific diamond, or as a “layaway payment” towards a specific diamond.
  1. HOW AN ICECAP TOKEN IS REDEEMED FOR THE DIAMOND IT IS CONNECTED TO
    1. Token owner choosing to redeem a Token (“Redeemer”) selects “Redeem A Token” on Icecap’s website www.icecap.diamonds.
    2. Redeemer is presented with an online form that obtains the necessary information from the redeemer, including name, address, email address, tax resale certificate if applicable, shipping preferences, and other information necessary for delivering the diamond, INCLUDING ALL REQUIRED KYC INFORMATION
    3. The information collected is reviewed by Icecap, which calculates the remaining payment that must be made to redeem the diamond using this formula: $50 + shipping/insurance cost + sales tax if applicable + unpaid storage fees if any = final payment. Note: applicable sales tax, if any, will be based on the price at which the Token was first sold by Icecap.
    4. ICECAP WILL CONFIRM THAT THE REDEEMER IS NOT A PROHIBITED PERSON AS DESIGNATED BY THE UNITED STATES “OFFICE OF FOREIGN ASSETS CONTROL” (OFAC). NO DIAMONDS WILL BE SOLD TO, OR TOKENS REDEEMED FROM, PROHIBTED PERSONS.
    5. Icecap will send an email to Redeemer with the fees specified, along with a date window in which the redemption must occur, and acceptable method(s) of payment in use by Icecap at that time (PayPal, crypto, credit card, etc.).
    6. If the necessary payment is made within the date window, and the Token itself is sent per instructions back to Icecap, Icecap or its agents will remove the diamond from the vault, and ship it, insured, to the Redeemer. The diamond will arrive with its documentation, including the GIA grading report, and the GCAL DiamondAudit.™ Note: Icecap has no obligation to the Redeemer until and unless all the above conditions have been fulfilled.
    7. Icecap will burn (destroy) the Token.
  1. STORAGE FEES
    • The diamond the Token is connected to accrues storage fees each year (currently $10 per year, but subject to change without notice—see current rates at icecap.diamonds), from the time the Token was first purchased from Icecap. These storage fees must be paid before the diamond is released from storage.
    • Anyone considering buying a Token should check the metadata on that Token, to see total fees currently accrued if any. Anyone who owns a Token may pay off the storage fees at anytime, by contacting Icecap, but is under no obligation to do so.
    • Theoretically, if a Token-owner never pays the storage fees, they could steadily accrue until the entire value of the diamond is forfeit. Icecap reserves the right to reclaim the diamond from storage, liquidate it for cash, and use the cash to pay the storage fees, if unpaid storage fees ever become greater than $100. In such case Icecap will flag the Token’s metadata accordingly, and the Token owner will have a period of time in which to reclaim the remaining value—as per Icecap’s policies at that time.
  1. NEWLY-MINTED TOKENS VS. SECONDARY-MARKET TOKENS
    • A Newly-Minted Icecap Token is one that is offered for sale by Icecap itself. Secondary-Market are Icecap tokens offered for sale by someone other than Icecap. Buyers should be aware of the slight difference.
    • A Newly-Issued Token is generally marked up from its wholesale price approximately twenty percent. A secondary market Token could be offered at any price—this is outside Icecap’s control.
    • A buyer can determine if a Token is newly-minted or secondary market via the “status” field in the metadata, which is displayed on OpenSea. It will show “Newly-Minted” or “Active.” Active means it has already been sold originally by Icecap, and is now being offered again by its owner.
  1. ONGOING COMMUNICATION FROM ICECAP TO TOKEN OWNERS
    In addition to what’s mentioned above, there may be other circumstances in which Icecap needs to communicate to the owner of a Token, even though Icecap does not know who those owners are, or their contact information.

    Examples of needed communication might include:
    1. An insurance loss.
    2. Significant changes to Terms and Conditions (as determined by Icecap).
    3. Changes to Icecap’s business such that the Token needs to be redeemed, or its value lost.

      In such cases, Icecap will use the metadata embedded in the Token to send a signal to the Token owner, via the “Contact Icecap” field, which will be set to “Required,” (or a similar communication signal.) This metadata will appear in any environment in which the Token and its text and graphics can be seen visually. Owners of tokens have a positive obligation to visually check their tokens no less than once per quarter to determine if such a message has been sent from Icecap. Buyers of Token explicitly accept this responsibility as part of the terms and conditions of owning a Token.
  1. WARRANTIES
    OTHER THAN A COMMITMENT TO PERFORM THE SERVICES AS DESCRIBED WITHIN THIS TERMS AND CONDITIONS DOCUMENT, ICECAP MAKES NO WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. ANY WARRANTIES THAT MAY OTHERWISE RESULT BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE ARE ALSO EXPRESSLY DISCLAIMED. ICECAP DOES NOT WARRANT THAT THE SERVICES IT PERFORMS, OR THE TOKENS IT SELLS, WILL MEET CLIENT’S NEEDS. The foregoing exclusions and disclaimers are an essential part of these Terms and Conditions and form the basis for determining the price charged for Icecap Tokens.
  1. LIMITATION OF LIABILITY
    • In no event shall either party (Icecap or Owner) be liable to the other party for lost profits, or incidental, exemplary, special or consequential damages, even if the party has been advised of the possibility of such damages.
    • Icecap shall not be liable for any claim or demand made against Owner by any third party except to the extent such claim or demand relates to rights conferred to Owner under these Terms and Conditions.
  1. TERM AND TERMINATION
    The terms of this Agreement shall continue indefinitely unless Icecap notifies Owner, via a metadata flag, that either a significant change has occurred or is imminent. This change to the metadata will appear under the “Contact Icecap” field, and will be set to “Required.”
  1. RESOLVING DISPUTES
    If a dispute arises under this Agreement the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in Denver County, State of Colorado, USA. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. If the parties are unable to arrive at a mutually satisfactory solution through mediation within 90 days, the parties may pursue any unresolved claims in court or through any other mutually agreed dispute resolution mechanism.
  1. ENTIRE AGREEMENT
    These Terms and Conditions (“Agreement”) is the sole and entire Agreement between the parties relating to such subject matter, and supersedes any prior agreements.
  1. MODIFICATION TO TERMS AND CONDITIONS
    Icecaps fees, business processes, and standard policies may evolve over time. Icecap has a positive obligation to communicate these to Owner, via the metadata tagging method referred to in Paragraph 7. Icecap reserves the right to change these at anytime, subject only to metatag notice. The above notwithstanding, Icecap is not allowed to change its Terms and Conditions in such as way as to materially and negatively impact its relationship with Owner and in a way that is prejudicial to the value of the Token as envisioned herein—unless it is required to do so by a court of competent jurisdiction, prevailing law, or a change in the regulatory environment or a perceived change. Any such change to the material relationship must be affirmatively and prominently flagged in the metadata tagging, although details of how this will be done remain at the discretion of Icecap as long as a reasonable standard is maintained.
  1. ASSIGNMENT AND TRANSFER OF TOKEN OWNERSHIP
    These Terms and Conditions apply to any owner of the Icecap Token, whether it was purchased as a newly-issued Token, or a secondary-market Token. The owner of the Token accepts these Terms and Conditions at time the title to the Token is received—a process governed by transfer as recorded in the Ethereum blockchain.
  1. SEVERABILITY
    If a court finds any provision of these Terms and Conditions invalid or unenforceable, the provision will be restated so as best to carry out the parties’ intent.
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