Contract
EXHIBIT 10.1
THIS ASSET PURCHASE AGREEMENT (the “Agreement”) is made and entered into as of April 3, 2023, among GBT Tokenize Corp, a Nevada limited liability company (the “Seller”) which is 50% owned by GBT Technologies, Inc., a Nevada corporation (“GBT”) and Trend Innovations Holding, Inc., a Nevada corporation (the “Buyer”).
WHEREAS, the Seller has developed and continues to develop Avant-AI, a proprietary system and method which is a text-generation, deep learning self-training model that is working based on an innovative, unique concepts which learns on its own and constantly enhances its information database with the advantage of unsupervised learning capabilities as described in detail on Exhibit A attached hereto (the “System”);
WHEREAS, the Seller desires to sell, and the Buyer desires to purchase and acquire all the System, which is all part of the Assets (as hereinafter defined) of the Seller including, without limitation, all intellectual property that qualifies as a tax-free reorganization under Section 368 of the Internal Revenue Code;
NOW, THEREFORE, in consideration of the mutual benefits to be derived from this Agreement and the representations, warranties, covenants, agreements, conditions and promises contained herein and therein, the parties hereto hereby agree as follows:
ARTICLE 1.
(a) | the Assets as described on Exhibit A; |
(b) | the source codes, the domain names and names and addresses of all registered users of such domain names and together with any other historical data owned or in the possession of the Seller, whether containing information concerning visitors to the domain names or otherwise, and all records relating thereto, and all records with respect to website development, content development, product development, costs, and all procedures, research and development files, data and other records listed; and |
(c) |
(d) | all computer software used by Seller. |
(a) Buyer is hereby acquiring the Assets, as such it is expressly agreed and understood that the Buyer shall not assume any liabilities. Without limitation of the foregoing, Buyer is not assuming any: (i) claims of patent infringement existing prior to and as of the date hereof (ii) liability for any Taxes (as defined herein), (iii) Employee Plans (as defined herein), (iv) liabilities or obligations incurred on behalf or owed to any employees of Seller, (v) liabilities or obligations of Seller for indebtedness to any of its shareholders or other equity owners or to any person associated therewith, (vi) except as otherwise specifically provided herein, liabilities or obligations of Seller for expenses with respect to this Agreement or any of the transactions contemplated hereunder including, without limitation, legal and accounting fees, (vii) liabilities or obligations incurred by Seller which violate or breach any representation, warranty, covenant or agreement of Seller included herein or made in connection herewith (viii) liabilities or obligations with respect to any and all outstanding accounts payable as of the date hereof (vii) or (ix) any other liabilities or obligations that are not Assumed Contracts (collectively, the liabilities not being assumed by the Buyer are referred to herein as “Excluded Liabilities”). All responsibility with respect to all liabilities of the Seller including, but not limited to, the Excluded Liabilities, shall remain with the Seller.
(b) The Buyer shall not assume or be bound by any obligations or liabilities of the Seller or any affiliate of the Seller of any kind or nature, known, unknown, accrued, absolute, contingent or otherwise, whether now existing or hereafter arising.
(c) The Seller shall be solely (as between the Seller and the Buyer) responsible for and pay any and all debts, losses, damages, obligations, liens, assessments, judgments, fines, disposal and other costs and expenses, liabilities and claims, including, without limitation, interest, penalties and fees of counsel and experts, as the same are incurred, of every kind or nature whatsoever(all the foregoing being a “Claim” or the “Claims”), made by or owed to any person to the extent any of the foregoing relates to (i) the assets of the Seller not transferred hereunder, or (ii) the operations and assets of the System arising in connection with or on the basis of events, acts, omissions, conditions, or any other state of facts occurring or existing prior to or on the date hereof (including, in each case, without limitation, any Claim relating to or associated with tax matters, any failure to comply with applicable law and/or permitting or licensing requirements and personal injury and property damage matters).
(d) | (i) the Seller shall return the Consideration to the Buyer; |
(e) | (ii) the Buyer shall cancel the Consideration on the books and records of the Buyer; |
(f) | (iii) the Buyer shall return the Stock to the Sellers; |
(g) | (iv) the Buyer and the Seller shall enter into an agreement terminating this Agreement and all ancillary agreements providing that such agreements are void and of no further force and effect (except as may be specified therein) and setting forth the rights and obligations of the parties post-termination, if any; |
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(h) | (v) Each party shall be responsible for their own liabilities in connection with any unwinding under this section; and |
(i) | (vi) the Buyer and the Seller shall deliver such other agreements, certificates, instruments and documents as may be reasonably necessary and shall cooperate in good faith with one another in order to unwind the transactions contemplated by this Agreement and any ancillary agreements; provided that each party shall, except as otherwise set forth herein, bear its own costs to unwind the transactions contemplated by this Agreement and the ancillary agreements (including, for the avoidance of doubt, with respect to any regulatory filings required to be made with any governmental body). |
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
As used with respect to the Seller or the Buyer, as the case may be, the term “Material Adverse Effect” or “Material Adverse Change” means (i) any change, event, inaccuracy, violation, circumstance or effect, individually or in the aggregate, that has or is reasonably likely to have a material adverse effect on the business, assets (including intangible assets), operations, results of operations, properties or financial condition of the party and its subsidiaries taken as a whole, other than changes or effects (A) caused by changes in general economic or securities markets conditions, (B) that affect the business in which such party and its subsidiaries operate in general and that do not have a materially disproportionate effect on such party and its subsidiaries or (C) resulting from the announcement or proposed consummation of this Agreement and the transactions contemplated hereby (including any security holder class action litigation arising from allegations of a breach of fiduciary duty relating to this Agreement).
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(b) AUTHORITY; NO CONSENTS. All necessary approvals and consents have been secured by the Seller in accordance with the Nevada General Corporation Law and the of the Seller. The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Seller; and this Agreement when executed and delivered by the Seller will be, duly and validly executed and delivered by the Seller; and this Agreement is a valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, when executed and delivered by the Seller, will be a valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as such enforceability may be limited by equitable principles and by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium and similar laws relating to or affecting the rights of creditors generally.
(c) Intentionally left blank.
(i) any adverse change in the business, assets, properties, Liabilities, operations, results of operations, condition (financial or otherwise), prospects or affairs of the Seller
(ii) any damage, destruction or loss, whether or not covered by insurance, having or which are reasonably likely to result in a Material Adverse Effect;
(iii) any Liability in excess of $25,000 created, assumed, guaranteed or incurred, or any material transaction, contract or commitment entered into, by the Seller, other than the license, sale or transfer of the Seller’s products to customers in the ordinary course of business;
(iv) any payment, discharge or satisfaction of any material Encumbrance or Liability by the Seller or any cancellation by the Seller of any material debts or claims or any amendment, termination or waiver of any rights of material value to the Seller;
(v) the commencement of any litigation or other action by or against the Seller or any threat of commencement of any litigation or other action against the Seller; or
(vi) any agreement, understanding, authorization or proposal, whether in writing or otherwise, for the Seller to take any of the actions specified in items (i) through (xviii) above.
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As used in this Agreement, “Tax” means any of the Taxes and “Taxes” means, with respect to any entity, (A) all income taxes (including any tax on or based upon net income, gross income, income as specially defined, earnings, profits or selected items of income, earnings or profits) and all gross receipts, sales, use, ad valorem, transfer, franchise, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property or windfall profits taxes, alternative or add-on minimum taxes, customs duties and other taxes, fees, assessments or charges of any kind whatsoever, together with all interest and penalties, additions to tax and other additional amounts imposed by any taxing authority (domestic or foreign) on such entity and (B) any liability for the payment of any amount of the type described in the immediately preceding clause (A) as a result of being a “transferee” (within the meaning of Section 6901 of the Code or any other applicable law) of another entity or a member of an affiliated or combined group.
(h) Intentionally left blank.
For purposes of this Section 2.1(j), the term “material” shall mean and refer to those agreements, contracts, instruments or arrangements (as applicable) that involve payments or expenditures by or to the Seller, or otherwise have an aggregate value, of at least $15,000. The Seller has furnished to the Buyer true and complete copies of all such agreements or electronic standardized versions of such agreements, and (x) each such agreement (A) is the legal, valid and binding obligation of the Seller and, to the best knowledge of the Seller, the legal, valid and binding obligation of each other party thereto, in each case enforceable in accordance with its terms, except as such enforceability may be limited by equitable principles and by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium and similar laws relating to or affecting the rights of creditors generally (B) is to the best of knowledge of Seller in full force and effect and (y) to the best knowledge of the Seller , the other party or parties thereto is or are not in material default thereunder.
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(m) Intentionally Left Blank.
2.2. Intentionally left blank.
2.3. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
The Buyer represents and warrants to the Seller as set forth below.
(a) ORGANIZATION; GOOD STANDING; QUALIFICATION AND POWER. The Buyer (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, and (ii) has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted, to enter into this Agreement and each of the Related Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The Buyer has delivered to the Seller true and complete copies of the Charter and by-laws of the Buyer. The Buyer is qualified to do business and is in good standing in each in jurisdiction in which the nature of its business requires it to be so qualified except where the failure to so qualify would not have a Material Adverse Effect.
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(d) ABSENCE OF CHANGES. Since inception through the date hereof, there has not been any material adverse change in the business, properties, operations or condition (financial or otherwise) of the Buyer (a “Buyer Material Adverse Change”); provided, however, that a change in the market price or trading volume of the common stock of Buyer shall not be deemed, in and of itself, to constitute a Buyer Material Adverse Change.
ARTICLE 3.
INTENTIONALLY LEFT BLANK
ARTICLE 4.
CONDUCT AND TRANSACTIONS PRIOR
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ARTICLE 5.
5.1. CONDITIONS TO EACH PARTY’S OBLIGATIONS. The obligations of each party hereto to perform this Agreement is subject to the satisfaction of the following conditions unless waived (to the extent such conditions can be waived) by all parties hereto:
(a) APPROVALS. The Buyer and the Seller and their respective subsidiaries shall have timely obtained from each Governmental Authority all approvals, waivers and consents, if any, necessary for consummation of the transactions contemplated hereby, including such approvals, waivers and consents as may be required under the Securities Act and under state securities laws.
(c) LEGAL ACTION. No temporary restraining order, preliminary injunction or permanent injunction or other order preventing the consummation of the transactions contemplated hereunder shall have been issued by any Federal or state court or other Governmental Authority and remain in effect.
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(c) GOVERNMENT CONSENTS, AUTHORIZATIONS, ETC. Copies of all consents, authorizations, orders or approvals of, and filings or registrations with, any Governmental Authority which are required for or in connection with the execution and delivery by the Buyer of this Agreement and the consummation by the Buyer of the transactions contemplated hereby or thereby, shall have been delivered by the Buyer.
ARTICLE 6.
6.1. RESTRICTIONS ON TRANSFER.
(a) The Stock Consideration to be issued to the Seller at the Closing Date or thereafter shall not be sold, transferred, assigned, pledged, encumbered or otherwise disposed of (each, a “Transfer”) except upon the conditions specified in this Section 6.1, which conditions are intended to insure compliance with the provisions of the Securities Act. The Seller shall observe and comply with the Securities Act and the rules and regulations promulgated by the SEC thereunder as now in effect or hereafter enacted or promulgated, and as from time to time amended, in connection with any transfer of the Stock Consideration beneficially owned by the Seller.
(b) Each certificate representing the Stock Consideration issued to the Seller and each certificate for such securities issued to subsequent transferees of any such certificate shall (unless otherwise permitted by the provisions of Section hereof) be stamped or otherwise imprinted with a legend in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES OR “BLUE-SKY” LAWS. THESE SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
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ARTICLE 7.
7.1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:
(a) “AFFILIATE” as to any person means any entity, directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with such person.
(b) “EVENT OF INDEMNIFICATION” shall mean the following:
(i) the untruth, inaccuracy or breach of any representation or warranty of the Seller (including the fact and circumstances underlying such untruth, inaccuracy or breach) contained in Section 2.1 of this Agreement, any Exhibit or Schedule hereto or any other document delivered in connection herewith or therewith (without giving effect to any “Material Adverse Effect” or other materiality qualification or any similar qualification contained or incorporated directly or indirectly in such representation or warranty);
(ii) intentionally left blank;
(iii) the breach of any agreement or covenant of the Seller contained in this Agreement , any Exhibit hereto or any other document delivered in connection herewith or therewith;
(iv) the untruth, inaccuracy or breach of any representation or warranty of the Buyer (including the fact and circumstances underlying such untruth, inaccuracy or breach) contained in Section 2.3 of this Agreement, any Exhibit or Schedule hereto or any other document delivered in connection herewith (without giving effect to any “Material Adverse Effect” or other materiality qualification or any similar qualification contained or incorporated directly or indirectly in such representation or warranty) or
(v) the breach of any agreement or covenant of the Buyer contained in this Agreement, any Exhibit hereto or any document delivered in connection herewith.
(c) “INDEMNIFIED PERSONS” shall mean and include (A) with respect to an Indemnification Event described in subsections 7.1(b)(i) and 7.1(b)(iii) hereof (each a “Seller Event of Indemnification”), the Buyer and its Affiliates, successors and assigns, and the officers, directors and agents of the Buyer (the “Buyer Indemnified Persons”), or (B) with respect to an Indemnification Event described in subsections 7.1(b)(iv) and 7.1(b)(v) hereof (each, a “Buyer Event of Indemnification”), the Seller and their respective Affiliates, successors and assigns, and the respective officers, directors and agents of each of the foregoing (the “Seller Indemnified Persons”).
(d) “INDEMNIFYING PERSONS” shall mean and include (A) with respect to an Indemnification Event described in subsections 7.1(b)(i) and 7.1(b)(iii) hereof, the Seller and their respective successors, assigns, heirs and legal representatives and estates, as the case may be (the “Seller Indemnifying Persons”), , and (B) with respect to an Indemnification Event described in subsections 7.1(b)(iv) and 7.1(b)(v) hereof, the Buyer and its successors and assigns (the “Buyer Indemnifying Persons”).
(e) “LOSSES” shall mean any and all losses, claims, damages, liabilities, expenses (including reasonable attorneys’, accountants’ and experts’ fees) sustained, suffered or incurred by any Indemnified Person arising from or in connection with any such matter that is the subject of indemnification under Section 7.2 hereof that shall not exceed the amount of any consideration actually paid by such Indemnifying Parties provided for hereunder.
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(a) The Indemnified Persons shall promptly give written notice to the Indemnifying Persons, as applicable, of any Third-Party Claim that might give rise to any Loss by the Indemnified Persons, or any of them, stating the nature and basis of such Third-Party Claim, and the amount thereof, to the extent known. Such notice shall be accompanied by copies of all relevant documentation with respect to such Third-Party Claim, including, without limitation, any summons, complaint or other pleading that may have been served, any written demand or any other document or instrument. Notwithstanding the foregoing, the failure to provide notice as aforesaid will not relieve the Indemnifying Persons from any liability which they may have to the Indemnified Persons under this Agreement or otherwise (unless and only to the extent that such failure results in the loss or compromise of any rights or defenses of the Indemnifying Person and they were not otherwise aware of such action or claim).
(b) If the Indemnifying Person acknowledges in writing its obligation to indemnify the Indemnified Persons hereunder against any Losses that may result from such Third Party Claims, then the Indemnifying Person shall be entitled, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its reasonable choice if it gives notice to the Indemnified Persons within twenty (20) calendar days of the receipt of notice of such Third Party Claim from the Indemnified Persons of its intention to do so. If the Indemnifying Person elects to assume and control the defense of any such Third Party Claim, the Indemnified Persons shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise or settlement of the Third Party Claim, but the fees and expenses of such counsel will be at the expense of the Indemnified Persons, unless (i) the Indemnifying Person has agreed to pay such fees and expenses, or (ii) the Indemnified Persons has been advised by its counsel that there may be one or more defenses reasonably available to it which are different from or additional to those available to the Indemnifying Person, and in any such case that portion of the fees and expenses of such separate counsel that are reasonably related to matters covered by the indemnification provided by this Article 7 will be paid by the Indemnifying Person. Expenses of counsel to the Indemnified Persons shall be reimbursed on a current basis by the Indemnifying Person if there is no dispute as to the obligation of the Indemnifying Person to pay such amounts pursuant to this Article 7. In the event the Indemnifying Person exercises its right to undertake the defense against any such Third-Party Claim as provided above, the Indemnified Persons shall cooperate with the Indemnifying Person in such defense and make available to the Indemnifying Person, at the Indemnifying Person’s expense, all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnifying Person. Similarly, in the event the Indemnified Persons is, directly or indirectly, conducting the defense against any such Third-Party Claim, the Indemnifying Person shall cooperate with the Indemnified Persons in such defense and make available to it, at the Indemnifying Person’s expense, all such witnesses, records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnified Persons. No such Third-Party Claim, except the settlement thereof which involves the payment of money only (by a party or parties other than the Indemnified Persons) and for which the Indemnified Persons is released by the third party claimant and is totally indemnified by the Indemnifying Person, may be settled by the Indemnifying Person without the written consent of the Indemnified Persons. No Third-Party Claim which is being defended in good faith by the Indemnifying Person shall be settled by the Indemnified Persons without the written consent of the Indemnifying Person.
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7.6. LIMITATION ON INDEMNIFICATION.
(i) Anything to the contrary contained in this Article 7 notwithstanding, the Indemnifying Persons shall not be obligated to indemnify the Indemnified Persons pursuant to this Article 7 with respect to any Losses pursuant to Section 7.2 until the aggregate amount of such Losses exceeds fifty thousand dollars ($50,000) (the “Basket Amount”), whereupon the Indemnifying Persons shall be obligated to indemnify the Indemnified Persons for all Losses in excess of the Basket Amount:
(ii) Each Indemnifying Person’s liability for any Losses shall be limited to the amount of such Losses net of the difference between any insurance proceeds received by the Indemnified Person in respect thereof minus the amount of premiums paid for such insurance by the Indemnified Person.
(iii) Notwithstanding any other provision of this Agreement, Losses related to the matters set forth in Section 2.2(a) and Losses attributable to fraud, the indemnities set forth in this Section 7 shall be the exclusive remedies of the Indemnified Persons for any misrepresentation or breach of any representation or warranty or covenant or agreement contained in this Agreement.
ARTICLE 8.
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(a) if to the Buyer, to:
Trend Innovations Holding, Inc.
00X Xxxxxxxx Xxx.,
Vilnius, Lithuania LT-01402
Attention: Xxxxxxxx Xxxxxxx, CEO
(b) if to the Seller, to:
GBT Technologies, Inc., and GBT Tokenize Corp c/o GBT Technologies, Inc
0000 Xxxxxxxx Xxx., Xxxxx 000X, Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, GBT CEO, and/or Xxxxxxx Xxxxxx GBT Tokenize CEO
(c) intentionally left blank.
(d) All such notices or communications shall be deemed to be received (i) in the case of personal delivery or facsimile, on the date of such delivery, (ii) in the case of nationally-recognized overnight courier, on the next Business Day after the date when sent and (iii) in the case of mailing, on the third Business Day following the date on which the piece of mail containing such communication was posted.
8.7. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada applicable to contracts made and to be performed wholly therein (without regard to principles of conflicts of laws).
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8.13. CONSENT TO JURISDICTION; WAIVERS. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of Nevada, Xxxxx County, and (b) the United States District Court for the Central District of Nevada, for the purposes of any Action (as defined below) arising out of this Agreement or any Related Agreement or any transaction contemplated hereby or thereby. Each of the parties hereto agrees to commence any Action relating hereto either in the United States District Court for the Central District of Nevada or if such Action may not be brought in such court for jurisdictional reasons, in the Supreme Court of the State of Nevada, Xxxxx County. Each of the parties hereto further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth in Section 9.5 shall be effective service of process for any Action in Nevada with respect to any matters to which it has submitted to jurisdiction in this Section 8.13. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any Action arising out of this Agreement or any Related Agreement or any transaction contemplated hereby or thereby in (i) the Supreme Court of the State of Nevada, Xxxxx County, or (ii) the United States District Court for the Central District of Nevada, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Action brought in any such court has been brought in an inconvenient forum. For purposes of this Agreement, “Action” means any claim, action, suit or arbitration, or any other proceeding, in each instance by or before any Governmental Authority or any nongovernmental arbitration, mediation or other non-judicial dispute resolution body.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Asset Purchase Agreement to be executed on its behalf as of the day and year first above written.
SELLER | ||
GBT TOKENIZE CORP | ||
By: | ||
Name: | Xxxxxxx X. Xxxxxx | |
Title: | CEO | |
TREND INNOVATIONS HOLDING, INC. | ||
By: | ||
Name: | Xxxxxxxx Xxxxxxx | |
Title: | CEO |
ACKNOWLEDGED AND AGEED: | ||
GBT TECHNOLOGIES, INC. | ||
By: | ||
Name: | Xxxxxxx Xxxxxx | |
Title: | CEO |
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Exhibit A – Assets
Domain names:
xxxxx://xxx.xxxxx-xx.xxx/ - Serving as Avant Information agent and GBT information agent.
xxxxx://xxx.xxx.xxxx - Serve as application of Avant – Ai based medical advisor.
Smartphone application:
Working under Avant! Ai– Android and iPhone.
White Paper.
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