NON-FUNGIBLE BAVARIANS TERMS & CONDITIONS
§ 1 GENERAL INFORMATION & DEFINITIONS
(1) These Terms and Conditions apply to all contracts concluded and executed between you as the purchaser and us as the issuer of the collection and operator of the website Bavarians.io for the sale of Non-Fungible Bavarians (NFBs). In the course of the purchase process, you recognize the Terms and Conditions as binding. These Terms and Conditions also apply to any resale.
The operator of the website through which the Non-Fungible Bavarians can be purchased is 24acht GmbH, a German limited liability company registered in Munich (Amtsgericht München, HRB 274021, Helene-Weber-Allee 14, 80637 München) and represented by Björn Jansen, Christoph Pirkl, Manuel Ringlstetter (Geschäftsführer; “managing directors”), herein referred to as “we” or “us”.
(2) The operator has created digital artworks and produced so-called Non-Fungible Tokens (NFTs) from them as unique, i.e. non-exchangeable, individual items in each case, running, coded, and recorded on the Ethereum blockchain. These NFTs are sold under the name Non-Fungible Bavarians, short NFBs.
(3) These Terms and Conditions regulate the details of the contractual relationship and at the same time contain important consumer information in the legally relevant version. The Terms and Conditions are available at any time on the aforementioned website and it is possible for you to save them on your computer and/or print them out. If the relevant contact details are provided at the time of purchase, the Terms and Conditions relevant to your purchase will also be made available by email. Please note that the Terms and Conditions may change over time, as we are obliged to reflect the current legal situation and to adapt the Terms and Conditions accordingly.
(4) The subject of the purchase agreement is initially the digital work of art individualized as NFT. If this is provided for in the individual case, i.e. if the description of the NFT purchased by you so provides, you may acquire, in addition to this work of art, benefits going beyond this, so-called Perks, which you enjoy as the purchaser of the NFT. This may require proof that you are a holder of the particular NFT. This will usually be done by communicating the so-called wallet address, where wallet means a special digital wallet for cryptocurrencies and other tokens produced on a blockchain (e.g. Metamask). The wallet address is an alphanumeric sequence of characters that uniquely enables the assignment to a wallet (public key).
(5) Whether and to what extent special, additional benefits (Perks) are granted can depend on various factors, e.g. rarity, certain properties, etc. Perks must always be actively requested by you, unless otherwise specified in the description of the NFT. Which properties your NFT possesses is random and cannot be viewed prior to purchase. There is no claim to NFTs with certain properties and to certain Perks.
Perks may in individual cases be dependent on services provided by third parties, for the granting of which we cannot guarantee.
(6) The NFTs we offer are so-called utility tokens that grant certain benefits, such as unique goods, services and access to events. You should therefore not acquire our NFTs for pure investment purposes, not solely for the purpose of resale or speculation on an increase in value. We do not guarantee their current or future value, tradability or marketability. Cryptocurrencies required to acquire the NFTs may lose their value completely, if necessary, and thus, for example, resale may also become actually or economically impossible.
(7) We reserve the right to change the NFT’s code and/or underlying smart contract at any time.
We might need to change graphical assets of NFTs as well, to keep it aligned with future developments.
The following terms have the corresponding meanings:
– “NFT” stands for Non-Fungible Token.
– “NFB” is short for Non-Fungible Bavarians. This is the NFTproject you are currently looking into, and which is facilitated by 24acht GmbH.
– “Own” means that you have rightfully and lawfully purchased or acquired the/an NFT from a legitimate source. Proof of your ownership of an NFB NFT has to be recorded on the Ethereum blockchain.
– “Perks” are additional benefits granted by the issuer
– A “Purchased NFT” is an NFT that you own.
– “Digital Artwork” or “Art” includes (but is not limited to) any art, design, product design, trademark, logo, animation, video, drawings and/or other digital content owned by or licensed to us.
§ 2 RULES FOR PURCHASE (“MINTING”)
To purchase our NFTs, you must have a wallet that supports the Ethereum blockchain (e.g., MetaMask). Your wallet will be used both to pay the purchase price, transfer the purchased NFT to your uniquely identifiable wallet address, and, if applicable, to confirm your ownership. At the time of purchase (so-called mint), the wallet must therefore be filled with a credit balance of the cryptocurrency Ether (ETH), sometimes referred to as Ethereum, at least in the amount of the purchase price (so-called mint price), which is required for the purchase of the selected NFT(s).
We have exclusively hold all rights to the underlying digital artworks required for the production and resale of the NFTs in this collection. The NFTs are mapped on the Ethereum blockchain via a program code (so-called smart contract), which stores both the individual identifier of the token (so-called token ID) and the wallet address of its holder and, if applicable, further program data, information and properties in a tamper-proof manner.
B. Contract conclusion
The presentation of the individual NFTs on our internet platform does not constitute a binding offer to sell (so-called invitatio ad offerendum). The offer to conclude the contract is made by you as the purchaser by clicking the button “O’gMINT is!” after entering the required data (in particular your wallet address). By this click, the payment of the purchase price into our wallet and the transfer of the purchased NFT from our wallet to yours is carried out simultaneously in the background.
Execution and completion of the transaction depend on various factors that are outside our sphere and for which we cannot assume any liability. Thus, the execution and completion of the transaction may take some time (in exceptional cases several hours) depending on the network load, the amount of gas fees, your personal settings in your wallet, etc., about which you will be informed online by sending a corresponding confirmation.
The purchase prices of the NFTs include the statutory VAT and all direct incidental costs in the specified cryptocurrency Ether (ETH), sometimes referred to as Ethereum. The payment is made via your wallet (for requirements see par. (1)). Transaction fees (so-called gas fees) incurred in addition to the purchase price of the NFT will be deducted directly from the balance in your Wallet upon payment of the purchase price (see also § 2 paragraph (1) at the end). Payment in fiat currency (EUR), e.g. by credit card or bank transfer without conversion into the required cryptocurrency is excluded. Please make sure that you have sufficient funds in your wallet to also cover the – sometimes strongly fluctuating – transaction fees.
If you elect to purchase an NFT through our website, any financial transactions that you engage in will be conducted solely through the Ethereum network. We will have no insight into or control over these payments or transactions, nor do we have the ability to reverse any transactions. We will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions that you engage or any other transactions that you conduct via the Ethereum network.
We retain ownership and all rights to the sold NFT until full payment of the purchase price. If, for whatever reason, there has been a transfer of the NFT without the simultaneous payment of the purchase price in the relevant cryptocurrency, the corresponding amount in EUR shall be paid immediately to a bank account to be specified by us.
D. Ownership of the NFT
(1) Each Non-Fungible Bavarian is an NFT on the Ethereum blockchain. You Own this NFT when you A) purchased it and B) can prove your ownership of the respective NFT on the Ethereum blockchain.
(2) Ownership of the NFT is mediated entirely by the Smart Contract and the Ethereum Network: at no point may we seize, freeze, or otherwise modify the ownership of any Non-Fungible Bavarian NFT.
§ 3 SCOPE OF THE GRANT OF RIGHTS
With the sale of the NFT, we grant you the exclusive right, unlimited in terms of time and territory, to use the corresponding NFT as owner and to exploit it in accordance with its programming (license). In the case of resale, § 4 paragraph (2) must be considered, according to which you lose granted rights with the resale.
This right of use includes in particular the right to resell, distribute and reproduce (copy) the NFT (“Private Use”). Reproduction specifically includes the right to publicly reproduce the NFT (by means of any sound devices, image carriers, video carriers, multimedia carriers or other data carriers in all compatible formats, using suitable digital processes and techniques). Public reproduction includes the right to make it publicly available, e.g. by using it as a profile picture in social networks. This also means that you can offer and also resell the acquired NFT on relevant platforms (e.g. Opensea) at any time by entering your wallet address. You have the right to edit the work and create any extensions at your own discretion.
Subject to your continued compliance with these Terms and Conditions,we grant you an exclusive license, unlimited in terms of time and territory, to use, copy, and display the purchased Art for the purpose of creating derivative works based upon the Art (“Commercial Use”). Examples of such Commercial Use would e.g. be the use of the Art to produce and sell merchandise products (clothing etc.) displaying copies of the Art. This however shall not exclude us from using all NFTs from the entire collection for commercial purposes.
The above granting of rights is conclusive. Beyond that, no rights, in particular no trademark rights, are granted. Other than the rights to the Art, nothing herein gives you any rights to any other trademarks or other intellectual property rights belonging to 24acht GmbH including, without limitation, any rights to the Non-Fungible Bavarians (NFBs), NFTmunich, 24acht GmbH and the associated logos. All of these rights are expressly reserved in the name of 24acht GmbH.
§ 4 RESALE
You have the right to resell any NFT you have purchased (see above § 3 paragraph (2)).
Since these Terms and Conditions also apply to the purchaser in the event of a resale, the rights granted to you pursuant to § 3 paragraph (1) expire upon resale. This means that you may no longer use the NFT after the transaction has been completed and the rights are transferred in full to the next buyer. If you are the first buyer of the NFT, however, the requested benefits remain with you in any case.
NFTs or the rights associated with them are generally inheritable under German law, but you must make appropriate provision for the actual ability of the heir(s) to access digital estate items.
E. 24acht GmbH has the right to change the NFTs code and/or smart contract at any time.
We might need to change graphical assets of NFTs as well, to keep it aligned with future developments.
§ 5 EXCLUSION OF THE RIGHT OF REVOCATION
When concluding a distance selling transaction such as an online purchase, consumers generally have a 14-day right of revocation, although there are exceptions to this right, particularly in the case of digital content, which also apply here.
A key feature of blockchain technology is that transactions executed using this technology are immutable as such. Therefore, they cannot be changed, but at most reversed by a new transaction. Furthermore, for technical reasons, the conclusion of the purchase contract for the NFT coincides with its execution (exchange of NFT and purchase price in the respective wallets) or takes place in such close temporal sequence that we must in any case begin with the execution of the contract before the expiry of the 14-day revocation period. According to the statutory provisions (§ 356 para. (5) no. 2 BGB; German Civil Code), there is no right of revocation for digital content in these cases if the consumer has expressly consented to the early start of execution and confirmed his knowledge of the loss of the right of revocation.
We have implemented this in the minting process in such a way that the following texts are placed on our website in the immediate vicinity of the “O’gMINT is!” button:
“Our Terms and Conditions apply to the purchase and all resales and notes on the statutory right of revocation and its exceptions. By clicking on “O’gMINT is!” you expressly agree to the execution of the contract before the expiry of the cancellation period and confirm your knowledge that you thereby lose your right of cancellation with the start of the execution.
§ 6 INFORMATION ON RISK AND LIMITATION OF LIABILITY
We assume no liability whatsoever for the availability and proper functioning of our website and any third-party services that may be integrated, as long as we have not confirmed the conclusion of a contract with you as described in these Terms and Conditions. You acknowledge and agree that we have made the website available to you and entered into these Terms and Conditions in reliance upon the warranty disclaimers and limitations of liability set forth herein. We would not be able to provide the website to you without these limitations. You acknowledge the inherent security risks of providing information and dealing online over the internet, and agree that we have no liability or responsibility for any breach of security unless it is due to our willful misconduct.
We also point out that the entire blockchain technology as well as the trading of cryptocurrencies and tokens for digital content such as NFTs transacted via it is, due to its novelty, subject to numerous legal uncertainties and technical as well as financial risks that lie outside our sphere and over which we cannot exert any influence. Dealing with this technology requires a high degree of care and risk-taking on your part and on the part of our contractual partners.
You assume all risks associated with using an internet-based currency, including, but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your wallet. NFTs, cryptocurrencies and blockchain technology are relatively new and the regulatory landscape is unsettled. New regulations could negatively impact such technologies impacting the value of your NFB NFT. You understand and accept all risks in that regard. You assume all responsibility for any adverse effects of disruptions or other issues impacting Ethereum or the Ethereum blockchain.
Ownership of a NFB NFT confers ownership of digital artwork only. Accordingly, no information on this website (or any other documents mentioned therein) is or may be considered to be advice or an invitation to enter into an agreement for any investment purpose. Further, nothing on this website qualifies or is intended to be an offering of securities in any jurisdiction nor does it constitute an offer or an invitation to purchase shares, securities or other financial products. Due to the artistic nature of the project, we have not been registered with or approved by any regulator in any jurisdiction. It remains your sole responsibility to assure that the purchase of the NFB NFT and the associated art is in compliance with laws and regulations in your jurisdiction.
You understand and agree that we will not be liable to you or to any third party for any indirect, incidental, special, consequential, or exemplary damages which may incur, howsoever caused and under any theory of liability, including, without limitation, any loss of profits (whether incurred directly or indirectly), loss of goodwill or business reputation, loss of data, cost of procurement of substitute goods or services, or any other intangible loss, even if we have been advised of the possibility of such damages.
We are not liable to you for any losses that incur as the result of your use of the Ethereum blockchain nor do we have no control over and make no guarantees regarding any smart contracts.
§ 7 MISCELLANEOUS
You may choose to submit comments, bug reports, ideas or other feedback about the Site, including without limitation about how to improve the Site (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback in any way we choose without additional compensation to you and you hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license to incorporate and use the Feedback for any purpose.
B. Your Obligations
You are solely responsible for your own conduct while accessing or using the website, and for any consequences thereof. You agree to use the website only for purposes that are legal, proper and in accordance with these Terms and Conditions and any applicable laws or regulations. By way of example, and not as a limitation, you may not, and may not allow any third party to: (i) send, upload, distribute or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, hateful, violent, obscene, or otherwise objectionable content; (ii) distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (iii) impersonate another person; (iv) upload, post, transmit or otherwise make available through the website any content that infringes the intellectual property or proprietary rights of any party or otherwise violates the legal rights of others; (v) engage in, promote, or encourage illegal activity (including, without limitation, money laundering); (vi) interfere with other users’ use of the website; (vii) use the website for any unauthorized commercial purpose; (viii) modify, adapt, translate, or reverse engineer any portion of the website; (ix) remove any copyright, trademark or other proprietary rights notices contained in or on the website or any part of it; (x) use any technology to collect information about the website’s for any unauthorized purpose; (xi) access or use the website for the purpose of creating a product or service that is competitive with any of our products or services. If you engage in any of the activities prohibited by this section, we may, at our sole and absolute discretion, without notice to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your user account.
B. Ethereum requires the payment of a transaction fee (a “Gas Fee”) for every transaction that occurs on the Ethereum network. The Gas Fee funds the network of computers that run the decentralized Ethereum network. This means that you will need to pay a Gas Fee for each transaction. The NFBs are not involved in this and have no impact on the Gas Fee costs.
You expressly understand and agree that your access to and use of the site is at your sole risk, and that the site is provided “as is” and “as available” without warranties of any kind, whether express or implied. To the fullest extent permissible pursuant to applicable law, we make no express warranties and hereby disclaim all implied warranties regarding the website and any part of it (including, without limitation, the site, any smart contract, or any external websites), including the implied warranties of merchantability, fitness for a particular purpose, non-infringement, correctness, accuracy, or reliability. Without limiting the generality of the foregoing, we, our subsidiaries, affiliates, and licensors do not represent or warrant to you that: (i) your access to or use of the website will meet your requirements, (ii) your access to or use of the website will be uninterrupted, timely, secure or free from error, (iii) usage data provided through the website will be accurate, (iii) the website or any content, services, or features made available on or through the website are free of viruses or other harmful components, or (iv) that any data that you disclose when you use the website will be secure.
Ownership of a NFB NFT confers ownership of digital artwork only. Accordingly, no information on this website (or any other documents mentioned therein) is or may be considered to be advice or an invitation to enter into an agreement for any investment purpose. Further, nothing on this website qualifies or is intended to be an offering of securities in any jurisdiction nor does it constitute an offer or an invitation to purchase shares, securities or other financial products. Due to the artistic nature of the project, we has not been registered with or approved by any regulator in any jurisdiction. It remains your sole responsibility to assure that the purchase of the NFB NFT and the associated art is in compliance with laws and regulations in your jurisdiction.
You agree to hold harmless and indemnify us and our subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost, and reasonable attorneys’ fees arising out of or in any way related to (i) your breach of these Terms and Conditions, (ii) your misuse of the website, or (iii) your violation of applicable laws, rules or regulations in connection with your access to or use of the website.
§ 8. Changes to the Terms and Conditions
We may make changes to the Terms at our discretion. Please check these Terms periodically for changes. Any changes to the Terms will apply on the date that they are made, and your continued access to or use after the Terms have been updated will constitute your binding acceptance of the updates. If you do not agree to any revised Terms, you may not access or use the Site.
Our website is not intended for children. You must be at least 18 years old to access this website or to purchase an NFB NFT. If you are under 18 years old you are not permitted to use this website for any reason. By accessing the website, you represent and warrant that you are at least 18 years of age.
F. Applicable Law, Dispute Resolution, Arbitration
These Terms and Conditions and the contractual relationship with you shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and the general provisions on private international law. The statutory provisions on the restriction of the choice of law shall remain unaffected. In particular, the choice of law may not result in the consumer being deprived of the protection that would be granted to him without the choice of law by the mandatory provisions in the country of his habitual residence.
All disputes arising out of or in connection with these Terms and Conditions, including, without limitation, your access or use of the website, or to any products sold or distributed through the website, will be referred to and finally resolved by arbitration under the rules of German Law. Each party will cover its own fees and costs associated with the arbitration proceedings. The place of arbitration will be Munich, Germany. The award of the arbitrator will be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, we may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction.
With respect to any dispute arising out of or related to these terms, including without limitation disputes related to the site or any products sold or distributed through the site, or the smart contracts: (i) you hereby expressly give up your right to have a trial by jury; and (ii) you hereby expressly give up your right to participate as a member of a class of claimants in any lawsuit, including but not limited to class action lawsuits involving any such dispute.
Version 1.0 // Date: 29.07.2022