Last update: 3, Nov 2022
GEISTED TERMS OF SERVICE
These Geisted Terms of Service („Geisted Terms”) apply to contracts by Geisted GmbH (address: c/o Factory Berlin Görlitzer Park, Lohmühlenstraße 65, 12435 Berlin, represented by its managing director Amir Fattal) („Issuer”), concerning the usage of Issuer’s websites, Third Party Sites, and blockchain-based applications (all of the foregoing, together with the functionality associated therewith, collectively, the „Platform”) and the sale or purchase of non-fungible tokens („NFTs”) via the Platform. Issuer (sometimes referred to herein simply as „we,” „us,” or „our”) may sell NFTs to purchasers thereof, and may provide services to purchasers and subsequent transferees of NFTs (sometimes referred to herein simply as „you” or using similar terms), including without limitation access to the Platform, subject to your acceptance of these Geisted Terms. We may update these Geisted Terms by providing a new version online and your continued use of the Platform after any such update constitutes your binding acceptance of such changes.
NFTs within the meaning of the these Geisted Terms are considered Utility Tokens and not securities within the meaning of the German Securities Trading Act (WpHG) or financial instruments within the meaning of the German Banking Act (KWG). The NFTs are not intended for and do not serve investment purposes. We do not provide any financial services and do not render investment advice.
Our contracts with you are made exclusively in the English language. English terms to which a German translation has been added shall have the meaning assigned to them by the relevant German term.
Your general terms and conditions, if any, shall not apply, regardless of whether or not we expressly object to them in a particular case.
1. USE OF THE PLATFORM
1.1 CONCLUSION OF CONTRACTS; USER ACCOUNTS
(1) A prerequisite for any purchase of NFTs is that the buyer must be holder of a compatible crypto wallet (i.e., be holder of the corresponding private key) and has provided the address of this crypto wallet to the seller. If the NFT is transferred to an incompatible crypto wallet, the NFT may become permanently unusable. The Issuer is not obliged to offer compatible crypto wallets itself. For the transfer or use of the NFTs, Internet access is required. The transfer of an NFT shall be deemed to have been effected when the NFT appears in the the buyer’s crypto wallet and the process has been fully documented in the applicable blockchain.
(2) You may select an NFT or other product on the Platform and start the purchase process via the button „Buy“ or „Place bid”, which will bring you to the next step of the purchase process. You will be able to change or abort your purchase or bid before finalizing the purchase process by selecting the appropriate button on the webpage.
(3) In order to complete the purchase process, you must create a user account on the Platform („User Account“), thereby agreeing to these Geisted Terms. For creating the User Account, you must enter the requested personal data and contact information. When registering for the Platform or third party services that facilitate access to the Platform, you may be required to select a username and password that will be used to access your account (collectively, „Access Credentials”). You are responsible for any use of your Access Credentials, whether by you or others. You agree to keep your Access Credentials confidential and not share them with anyone else. Issuer is not liable for any loss or damage arising from your failure to protect your Access Credentials or any other personal information, including but not limited to loss of access to any NFTs. You authorise the Issuer to act on instructions received through use of your Access Credentials. User Accounts are not transferable.
(4) NFTs may be offered on the Platform via a fixed price offer or via an auction.
(5) If we or a third party offers an NFT for sale by auction on the Platform, the seller makes a binding offer to conclude a sale contract for this NFT. In doing so, the seller determines a starting price or minimum price and a period within which the offer can be accepted („Offer Period“). If a miminum price is specified, the offer is under the condition precedent that the minimum price is reached. You accept the offer – but always subject to the condition precedent that you are the highest bidder after expiry of the Offer Period – by submitting a bid via the button “Place Bid” and then confirming the bid. Your bid expires automatically if another buyer submits a higher bid during the Offer Period. The contract is concluded between the seller and the bidder having submitted the highest bid by the end of the Offer Period. In case of early termination of the offer by the seller, a contract is concluded between the seller and the highest bidder, unless the seller was entitled to withdraw the offer and cancel the present bids.
(6) In the case of fixed price offers, you may accept the offer by clicking the button „Buy“ and then confirming the order, at which time the contract between you and the seller is concluded.
(7) The contract text will not be stored and may not be retrieved after completion of the ordering process. However, you may print out your ordering data directly after sending of the order.
1.2 Terms of Sale
(1) The following persons and entities are excluded from purchasing NFTs on the Platform:
● Persons and entities subject to the tax laws of the United States or Canada; and
● Individuals and entities domiciled or permanently residing in countries where the offering of cryptographic tokens is not permitted or that are on the current country list of high-risk and and other monitored countries of the Financial Action Task Force (FATF).
(2) Once you have made a purchase of an NFT, you should promptly take the necessary steps to complete your transaction (e.g., activate or download any content or secure any seed phrase or corresponding private key). We encourage the use of secure, offline storage measures for NFTs. You may purchase NFTs using fiat or crypto currency, where multiple payment options are made available to you. You may freely resell or otherwise transfer an NFT that you own where this is permitted by these Geisted Terms and applicable law. Any sale or transfer must provide for the transfer of all of your rights then outstanding with respect to such NFT.
1.3 NFTs that we provide by means of the Platform:
● may, where expressly stated in the description of such NFTs, include additional functionality, content, or subscription access to services and/or experiences;
● may be unique or part of a limited series, or redeemable only once;
● may include the ability to redeem an electronic certificate for services and experiences, which may be unique or part of a limited series, or redeemable only for a specified number or amount of services and experiences;
● may be subject to additional terms or qualifications as stated in the description of the NFT; and
● are subject to applicable laws as in effect from time to time.
1.4 Ownership of NFTs
„Own” means your rights with respect to an NFT you have purchased or otherwise rightfully acquired from a legitimate source, where proof of such purchase is recorded on the applicable blockchain. You agree, in relation to any NFT that you Own, that you Own that NFT in accordance with any description which accompanies that NFT. The Issuer may, at its option, use third party platforms or wallet extensions (which may be owned or operated by third parties) to sell NFTs („Third Party Sites”). You agree to adhere to any applicable terms of service or privacy policies applicable to the use of any Third Party Sites.
Unless stated otherwise in the description of the applicable NFT, an NFT that you Own will be transferable. The transfer of an NFT requires an agreement between the buyer or current holder and the new holder on the transfer of the NFT. As an additional requirement, the buyer or current holder must transfer the NFT to the crypto wallet of the new holder.
1.5 Selling NFTs on the Platform
(1) You may use the Platform as a marketplace to offer and sell your NFTs (in this role, you hereinafter referred to as a “Seller”).
(2) It is the Seller’s responsibility to ensure that his offers and contents (especially pictures and other information) are lawful and do not violate any third party rights, especially copyrights. The Seller shall indemnify the Issuer against all claims asserted by other users or other third parties against the Issuer due to infringement of their rights (in particular copyrights) by offers, NFTs and other content posted by the Seller via the Platform or due to the Seller’s other use of the platform. In this case, the Seller shall bear the costs of the necessary legal defense of the Issuer including all court and attorney fees in the statutory amount. This shall not apply if the Seller is not responsible for the infringement. The Seller is obligated to provide the Issuer immediately, truthfully and completely with all information necessary for the examination of the claims and a defense in the event of a claim by third parties.
(3) It is prohibited to offer or advertise on the platform NFTs and contents of NFTs, the offer, sale or purchase of which violates legal regulations, rights of third parties or offends common decency. The Issuer reserves the right to make the sale of certain NFTs subject to conditions that go beyond the statutory provisions.
(4) It is prohibited to manipulate the prices of one’s own or third-party offers or to purchase one’s own NFTs by using multiple user accounts or in cooperation with other users.
(5) Sellers must truthfully disclose all properties and features that are essential for the purchase decision as well as defects that reduce the value of the offered NFT. In addition, full information must be provided on the terms of payment and, in the case of physical products, delivery.
(6) The description of the NFT as well as the images used therein must exclusively refer to the offered NFT and its content (including related physical products or Redeemable Elements). Advertising for NFTs or other items not offered on the platform is not permitted.
(7) Sellers offering goods or services to consumers are obliged to provide them with the legally required consumer protection information and to instruct them on the existence or non-existence of the statutory right of withdrawal.
(8) The price of the respective NFT is understood to be the final price including any applicable tax and other price components.
(9) Sellers are not permitted to demand other fees from buyers in addition to the selling price (including shipping costs) without the consent of the Issuer.
(10) Sellers must be in a position to transfer or assign the NFT offered, including any related rights, to the buyer immediately after conclusion of the contract.
(11) Sellers may not use addresses, e-mail addresses and other contact data obtained through the use of the platform for any purpose other than contractual and pre-contractual communication. In particular, it is prohibited to resell this data or to use it for sending advertising, unless the respective user has expressly consented to this in advance in accordance with the applicable legal provisions or has not objected.
(12) The Issuer charges commission fees to the Seller for offering and selling NFTs on the Platform. The commission rate is agreed between the Issuer and the Seller when creating the Seller’s offer. The individual fees including the amount of such fees shall be notified to the Seller separately.
(13) The individual fees are due for payment immediately and will be withheld by the Issuer from any payments made by the buyer.
(14) The Issuer shall invoice the accrued fees on a monthly basis. The complete invoice can be retrieved by the Seller in his user account.
1.6 Ownership of Creative Materials
You acknowledge and agree that Issuer or, as applicable, its licensors, or the respective Seller or its licensors, own all rights, title and interest in and to any artwork, designs, drawings, photographs, labels, logos, insignia, trademarks, trade dress, copyright, recipes, formulas and other creative materials that may be associated with any NFT that you Own (collectively, „Creative Materials”), and all intellectual property rights therein.
The rights that you have in and to the Creative Materials are limited to those expressly stated below, under „Intellectual Property Ownership, Licences and Restrictions.” Notwithstanding any purchase of NFTs, all right, title, and interest in the Issuer’s intellectual property, including the Creative Materials and other intellectual property incorporated in any NFTs (including NFTs that you Own) and including all copyrights, trademarks, and other intellectual property rights therein, are held by Issuer or its licensors, and you agree not to infringe, violate or misappropriate those exclusive rights. In particular, without limitation, you must not reproduce NFTs or Creative Materials by minting them into new NFTs.
1.7 Termination of User Account
(1) The Issuer may take the following measures if there are concrete indications that a user violates legal regulations or the rights of third parties, in particular copyrights, or to protect the user from fraudulent activities:
• Deletion of bids, offers or other content
• Warning of users
• Delaying the publication of bids and other content
• Restriction of the use of the platform, especially buying activities
• Temporary blocking
• Final blocking
When choosing a measure, the Issuer shall take into account the legitimate interests of the user concerned, in particular whether there are indications that the user is not responsible for the violation.
(2) The Issuer may permanently exclude a user from using the platform (permanent blocking) if
• he has provided false contact data
• he transfers his user account or grants third parties access to it
• he harms other users or the platform operator to a considerable extent
• he repeatedly violates these Geisted Terms or
• there is another important reason.
• After a user has been permanently blocked, there is no claim to restoration of the blocked user account.
(3) Users may terminate this agreement at any time.
(4) The Issuer can terminate the user contract at any time with a notice period of 30 days to the end of the month. The right to block and the right to extraordinary termination for good cause remain unaffected.
(5) As soon as a user has been blocked or the user contract has been terminated by the Issuer, this user may no longer use the services of the Platform, even with other user accounts, and may not register again. A blocking or termination does not affect the validity of contracts already concluded on the Platform.
2. PAYMENT AND TAXES
2.1 Payment Terms
The buyer is obliged to pay in advance. Unless agreed otherwise, the purchase price shall be due immediately upon sale. By placing a bid in an auction, you agree to secure the bid by pre-paying the bid amount to the Issuer; the pre-payment will be refunded if the auction is not won by you. If you win the auction, the pre-paid amount will be transferred to the seller als settlement of the payment claim.
2.2 Cryptocurrency Financial Transactions on the Platform
Any cryptocurrency payments or transactions that you engage in via the Platform will be conducted solely through the Ethereum blockchain network. We have no control over these payments or transactions, nor do we have the ability to reverse any payments or transactions. We do not provide refunds for any purchases that you might make on or through the Platform – whether NFTs or anything else. Whether a particular cryptocurrency is accepted as a payment method by us is subject to change at any time in our sole discretion.
2.3 Fiat Currency Financial Transactions on the Platform
Any fiat currency payments via credit cards or other means will be directed to our unaffiliated third-party payment processor, PayPal. All bank, credit card, or other payment information is sent directly to and stored with the payment processor using its security protocols. We do not store your payment information on our systems and shall not have any responsibility for the safety or security of that information. We may add or change any payment processing services at any time. Such services may be subject to additional terms or conditions including their privacy policies.
2.4 Responsibility for Taxes
We will charge you, withhold and pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed The purchase price for NFTs includes the legally applicable value added tax, as the parties assume that the purchase of NFT is subject to value added tax. If and to the extent that, contrary to the parties' assumption, no value added tax or only a lower value added tax is bindingly assessed for Issuer by the tax authorities, Issuer will refund the difference to you. In all other respects, the you shall be solely responsible for determining whether and which taxes are due on the purchase and/or transfer of NFTs and for remitting such taxes, insofar as you are a taxable entity in this context and are therefore correspondingly obliged to remit taxes yourself. To allow us to determine our tax obligations, you agree that we rely on your IP address. You are required to inform us if your IP address does not reflect your country of residence.
3. SPECIAL RULES PERTAINING TO REDEEMABLE ELEMENTS
With respect to any NFT that includes a digital certificate that grants you the right to receive exclusive access to an event held by Issuer or its affiliates, and/or to take part in exclusive artistic experiences (each referred to herein as „Redeemable Elements”), the following additional rules shall apply, as well as any additional restrictions imposed by applicable law:
3.1 Eligible Recipients
Eligible recipients must be of legal age to participate in the event.
3.2 Participation in Exclusive Experiences
Regardless of who Owns the applicable NFT as of the date of redemption of the applicable Redeemable Element, the right to take part in an experience curated by Issuer will be held by the record holder of the NFT at the time of the applicable experience, provided that such record holder meets the eligibility criteria listed in Section 3.1. Additional terms may apply, as provided for in the description of the NFT, as reasonably required by Issuer or as required by applicable law. For example, an exclusive experience at an event may require advance registration and confirmation of age. In the event that the record holder of the NFT at the time of the applicable experience refuses to comply with such additional terms, Issuer reserves the right to cancel the applicable Redeemable Elements and deny participation in such experience, without any compensation to any party.
4. INTELLECTUAL PROPERTY OWNERSHIP, LICENCES AND RESTRICTIONS
You Own (within the meaning of section 1.3 above) the NFTs that you purchase by means of the Platform. Issuer or Seller, as the case may be, grants you a worldwide, non-exclusive, transferable, royalty-free licence to use, copy, and display the Art for your purchased NFTs, along, for your own personal, non-commercial use, unless provided for otherwise in the NFT description.
4.2 Limitations on Use
Unless explicitly stated, you should assume that all Issuer’s and Seller’s intellectual property is protected by copyright, trademark and other applicable intellectual property rights and may not be used except as permitted in these Geisted Terms. Issuer does not grant, by implication, estoppel, or otherwise, any licence or right to use any Issuer or Seller intellectual property or NFTs in a manner inconsistent with these Geisted Terms without the prior written permission of Issuer and/or any third party that may own additional intellectual property
4.3 Grant of Licence: Creative Materials
Without limiting the generality of the foregoing, subject to your continued compliance with these Geisted Terms, Issuer or the Seller, as the case may be, grants you a worldwide, non-exclusive, transferable, royalty-free licence to display the Creative Materials for NFTs that you Own, solely, for your own personal, non-commercial use, unless provided for otherwise in the NFT description.
4.4 Proprietary Notices
In addition, you agree that you shall not remove any proprietary notices or labels on or in the Issuer Intellectual Property and/or not bypass, modify, defeat or circumvent any technologies or methods to deliver or protect the NFTs or any other Issuer Intellectual Property.
5. ASSUMPTION OF RISK
5.1 Inherent Risks with Digital Assets
There are risks associated with using Internet-based digital assets such as NFTs and cryptocurrency, 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 unauthorised access to information stored within your electronic wallet. You accept and acknowledge that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Ethereum blockchain network, however caused.
5.2 Value/Volatility/Not An Investment
The prices of NFTs can be extremely volatile and subjective, and NFTs have no inherent or intrinsic value. To the extent there is a price or market for a blockchain asset such as an NFT, (a) those prices and markets are extremely volatile, (b) variations in the price of other digital assets could materially and adversely affect the value of any digital assets you own, including NFTs, and (c) there is no guarantee that NFTs will have or retain any value. NFTs are not securities or financial instruments and are not offered for investment purposes. The commercial or market value of NFTs may materially diminish in value as a result of a variety of things, including negative publicity associated with Issuer. You accept and acknowledge that we will not be responsible for the risks of engaging in any transactions relating to your NFTs with third parties (e.g., transferring your NFT from a third party on any so-called „secondary market”).
5.3 Use of Blockchain
The Platform does not store, send, or receive NFTs. This is because NFTs exist only by virtue of the ownership record maintained on the Platform’s supporting blockchain in the Ethereum blockchain network. Any transfer of NFTs occurs within the supporting blockchain in the Network, and not on the Platform. We do not make any promises or guarantees about the availability of NFTs or that it will host your or any other NFTs at any specific location and/or for any specific period of time. Upgrades to the Ethereum blockchain, a hard fork or other change to the Ethereum blockchain, a failure or cessation of the Ethereum blockchain or its underlying cryptocurrency, or a change in how transactions are confirmed on the Ethereum blockchain may have unintended, adverse effects on all blockchains using those or similar technologies, including the NFTs. We do not make any promises or guarantees related to the Ethereum Foundation, the Ethereum blockchain, or any other third parties related to the NFTs or the Platform (including any of their respective applications and/or services, as well as to the continued availability of or the protection or storage of any data you provide to those parties). You accept and acknowledge that we will not be responsible for any loss of access to your NFTs due to loss of your private key(s), custodial error or purchaser error, mining attacks, hacking, security weaknesses, fraud, counterfeiting, cyberattacks and other technological difficulties.
5.4 Regulatory Uncertainty
The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Platform ecosystem, and therefore the potential utility or value of your NFTs. You accept and acknowledge that we will not be responsible for the risk of changes to the regulatory regime governing blockchain technologies, cryptocurrencies, and tokens and new regulations, unfavourable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of the NFTs.
5.5 Tax Calculations
You are solely responsible for determining what, if any, taxes apply to your NFT-related transactions. We are not responsible for determining the taxes that apply to your transactions on the Platform or other NFT-related transactions.
You also acknowledge and agree that: (a) you have obtained sufficient information to make an informed decision regarding the NFTs; (b) you are solely responsible for determining the nature, potential value, suitability and appropriateness of these risks for yourself; (c) Issuer does not represent or warrant that any NFTs, or its supporting systems or technology, are reliable, current or error-free or otherwise meets your requirements, that defects in the NFTs, or their supporting systems or technology, will be corrected, or that the delivery mechanism for NFTs will be free of viruses or other harmful components; and (d) Issuer shall not be responsible for any communication failures, disruptions, errors or delays you may experience related to the NFTs.
6. WARRANTY; LIMITATIONS OF LIABILITY
1.1 CONCLUSION OF CONTRACTS; USER ACCOUNTS
We shall be liable within the scope of these Geisted Terms and our contractual relationship conclusively as follows:
We shall be liable without limitation for intent and gross negligence as well as for damages resulting from injury to life, body or health.
In cases of slight negligence, we shall be liable for breach of a material contractual obligation. A material contractual obligation within the meaning of this clause is an obligation the fulfillment which makes the performance of the contract possible in the first place and on the fulfillment of which the contractual partner may therefore regularly rely (Kardinalpflicht). The liability pursuant to this clause shall be limited to the damage foreseeable at the time of conclusion of the contract, the occurrence of which must typically be expected.
Any liability on our part for guarantees given and for claims based on the Product Liability Act (Produkthaftungsgesetz) or in the event of data privacy violations shall remain unaffected.
The statutory provisions apply to the warranty (Gewährleistung) for defects of quality and title.
7. GENERAL INFORMATION
7.1 Age Restrictions
NFTs provided by Issuer are intended for purchase and use by persons 18 years of age or older. You acknowledge and agree that you are not permitted to visit Issuer’s website or purchase the NFTs, and shall not access Issuer’s website or purchase any NFTs provided by Issuer if you are under the age of 18. By using the Platform, you certify that you are at least 18 years of age and agree to provide us with accurate information and verification concerning your age or identity if we request it. You also agree not to assist anyone under the age of 18 in accessing Issuer’s website or the NFTs or attempt to contact anyone under 18 while accessing or using the Platform.
7.2 No Third Party Beneficiaries
You agree that, except as otherwise expressly provided in these Geisted Terms, there shall be no third party beneficiaries to these Geisted Terms. You acknowledge and agree that Issuer’s licensors are intended third party beneficiaries of these Geisted Terms.
7.3 Changes to the Geisted Terms
The Issuer may at any time propose to you an amendment to these Geisted Terms - with the exception of fee clauses, fee regulations and main services. Amendments to these Geisted Terms shall be offered to you in text form (e.g. by e-mail) no later than 30 days before the proposed date of their entry into force. You shall be deemed to have given your consent if you do not notify the Issuer in text form of your refusal before the proposed date on which the amendments are to take effect. If you do not agree with the changes, you have the right to terminate the contract without notice and free of charge until the proposed date of the changes taking effect. In the message with which the changes are offered, the Issuer shall also specifically inform you once again of your right of rejection, the deadline for this and the possibility of termination. The amended Geisted Terms shall additionally be published on the Platform.
8.4 Entire Agreement; Waiver; Dispute Resolution
Under the following link, you may find the platform of the European Commission for online dispute resolution (OS) for private individuals: https://ec.europa.eu/consumers/odr/. We are not willing and not obliged to participate in a dispute resolution proceedings before a consumer arbitration board.