PURCHASE AGREEMENT ON COLLECTIBLES
This purchase agreement on Collectibles and Sub-Collectibles (as defined below) (“Agreement”) is entered into via the Fansea App between Fansea GmbH, Bethmannstr. 7-9, 60311 Frankfurt/Main, Germany (“Seller”) and a user who submits an offer to purchase a Collectible and/or a Sub-Collectible (“Buyer”). The General Terms and Conditions (“App GTC”) available below to this Agreement, however, in the event of any contradictions, this Agreement will prevail.
1. DEFINITIONS
1.1 “Exercise Right” means a right represented by a Sub-Collectible (as defined below) or further rights that the Buyer may exercise (for example, 3D Prints (as defined below), Meet a Star or take part in a training session), as described in the Fansea App.
1.2 “Blockchain” means the blockchain or similar technology designated in the Fansea App for the particular Collectible or Sub-Collectible offered, and if nothing is designated there, then the Polygon Blockchain (further information at https://polygon.technology/).
1.3 “3D Print” means a 3D printout of a 3D object.
1.4 “Fansea App” means an app operated by the Seller for mobile devices and browsers.
1.5 “Owner of the Token” means the person who can dispose of the Token by means of a corresponding Cryptographic Key (as defined below) and who is at the same time economically entitled to dispose of this Token.
1.6 “Purchase Price” means the price to be paid by the Buyer to the Seller for obtaining a Collectible and/or Sub-Collectible.
1.7 “Medium” (plural “Media”) means a medium represented by a Collectible, for example a graphic, 3D object or a video, as described in the Fansea App.
1.8 “Collectible” means the Non-Fungible Token purchasable with the Fansea App that is not a Sub-Collectible and the contractual rights in the Medium represented by the Token.
1.9 “Sub-Collectible” means a Token purchasable with the Fansea App in addition to a particular Collectible and the Exercise Right represented by that Token.
1.10 “Token” means the contractual, unique and transferable token on the Blockchain.
1.11 “Consumer” means any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor self-employed.
1.12 “Mystery Box” means the digital box which is not a Token and the Buyer can purchase without knowing the exact Collectible inside the Box which will be released by the Seller on a specific Date and transferred to the Buyers Wallet.
1.13 “Voucher” means a personal, unique electronic Voucher code sent to the Buyer by the Seller by email, which can be redeemed at a defined time by the Buyer with the Seller in the App for the transfer of a Collectible.
1.14 “Airdrop” means sending Collectibles to the Consumer´s wallet for free. Sending Airdrops to Consumer for free is in the sole discretion of the Seller.
1.15 “Raffle” means the provision of numbered tickets or Collectibles, which are subsequently drawn at random, the holder or holders of such tickets or Collectible winning a prize.
2. CONCLUSION OF AGREEMENT ON COLLECTIBLES
2.1 The Seller provides Voucher, Collectibles, Mystery Boxes or Airdrops for sale or for free in the Fansea App. The Collectible ‘s presentation in the Fansea App does not constitute a binding offer by the Seller to conclude a purchase agreement, but merely an invitation to submit a binding offer by the Buyer.
2.2 The Buyer can make a binding offer to purchase a Voucher, Collectible or Mystery Box in the Fansea App by truthfully providing all data requested in the Fansea App, using his wallet in the Fansea App in accordance with section 2.4 and finally clicking the “Buy now” button.
3. CONCLUSION OF AGREEMENT ON SUB-COLLECTIBLES
4. PURCHASE PRICE
4.3.2 to provide the Seller with his full name and
5. WALLET
6. RIGHTS OF USE OF THE MEDIUM
7. EXERCISE RIGHTS AND THEIR VALIDITY
8. SECONDARY SALE; REVENUE SHARE
8.2 The Seller grants to each buyer of the Collectible and to every buyer of a Sub-Collectible as well as to each subsequent buyer in the chain of sale of the respective Token (“Secondary Buyer”) the rights of use pursuant to section 6.1 and, except in the case of an expiry of the Exercise Right pursuant to section 7.7, the Exercise Right pursuant to section 7.1 limited in time to the period during which this Secondary Buyer is the Owner of the Token and subject to the condition precedent of payment of the Revenue Share pursuant to section
8.3. The Secondary Buyer of a Collectible accepts the granting of all rights by claiming and exercising the rights of use represented in the Collectible (e.g. by using the Medium) and the Secondary Buyer of a Sub-Collectible accepts the granting of all rights by claiming and exercising the Exercise Right represented by the Sub-Collectible. The Seller waives receipt of the acceptance. Regardless of this acceptance, the Seller permits the use in accordance with section 6 and section 7. 8.3 In case of a Secondary Sale according to section 8.1, the Secondary Buyer pays 10% of the respective Purchase Price, including applicable VAT, to the Seller (“Revenue Share”). The Revenue Share is always payable by the Secondary Buyer and is therefore included in the Purchase Price for a new buyer. The remaining 90% of the Purchase price is paid by the Secondary Buyer to the previous owner of the Collectible as seller of the Collectible (“Reseller”), including applicable VAT. The smart contract underlying the Collectible executes both payments automatically as soon as the Secondary Buyer has transferred the purchase price to this smart contract. This section 8.3 applies accordingly to the Secondary Sale of a Sub-Collectible.
8.4 A Secondary Sale is not included in the performance of the Seller and is the sole responsibility of the Reseller; in particular, a Secondary Sale via the Fansea App is not included in the performance of the Seller. However, the Seller is at liberty to enable a Secondary Sale via the Fansea App in the future. In the event of a Secondary Sale, the Secondary Buyer may incur additional costs for the transaction (so-called gas fees), depending on the sales platform chosen by the Reseller.
9. RESTRICTIONS ON THE RIGHTS OF USE AND EXERCISE RIGHTS
9.1 In addition to the rights in section 6, with a Collectible, an Exercise Right pursuant to section 7 will only be granted to the owner of the Collectible if the Buyer purchases a Sub-Collectible and if this is clearly stated in the respective Collectible and Sub-Collectible description of the Seller in the Fansea App.
9.2 The granting of the rights of use pursuant to section 6 as well as the Exercise Right pursuant to section 7 is subject to the resolutory condition that the owner of the Collectible and the owner of the Sub-Collectible do not comply with the provisions of section 17 (Anti-Money Laundering).
9.3 The granting of the rights of use pursuant to section 6 as well as the Exercise Right pursuant to section 7 is subject to the condition precedent that the owner of the Collectible has lawfully acquired the Collectible, and in the case of Exercise Rights, the associated Sub-Collectible. A lawful acquisition of the Collectible and the Sub-Collectible is not present, in particular, but not conclusively, in cases of (i) theft or other unauthorised transfer of the Token from the wallet address of the Seller or Reseller to the wallet address of a third party, (ii) an unintentional transfer of the Token to the wallet address of a third party by the Seller or Reseller (e.g., by mistyping when entering the wallet address). In such cases, the Seller reserves the right to transfer the Token to the proper wallet address or, if applicable, to destroy (burn) the Token and reissue the Token to the rightful owner of the rights to the Medium or the Exercise Rights.
9.4 Except for the Secondary Sale of the Collectible in accordance with section 8, the owner of the Collectible will not be entitled, directly or indirectly, without the prior written consent of the Seller:
a) to alter the Medium or create derivative works from it, including but not limited to shapes, designs, drawings, attributes, features or colours, except for non-public and non-commercial, purely private purposes;
b) to use the Medium in films, videos or other forms of media, except to the extent expressly permitted under this Agreement, except for non-public and non-commercial, purely private purposes;
c) to exploit the Medium for commercial purposes, in particular to advertise, market or sell a product or service of oneself or a third party. For avoidance of doubt: Use for purely private purposes is permitted;
d) to take measures aimed at circumventing technical protection measures of the Collectible. The owner of the Collectible shall refrain from any form of unauthorised use, in particular attempts to overcome or circumvent the security mechanisms or otherwise disable them, and shall take all necessary and reasonable steps to prevent or limit any damage caused by the use of the Collectible;
e) to use the Collectible for purposes and/or in connection with materials (e.g. texts, images, films, video clips) and/or to disseminate information in connection,
i. which contain criminal content;
ii. constitute hatred, intolerance, violence, discrimination or any other form of disregard for the rights of third parties or otherwise violates the rights of third parties, in particular offensive or derogatory mate-rial relating to gender, race, religion, skin colour, origin, age, physical or mental disability, medical condition or sexual orientation;
iii. infringe the rights of third parties (in particular copyrights, publication rights, patents, trademarks, service marks, trade names, trade secrets or other intellectual property rights);
iv. are associated with gambling activities;
v. violate a person’s privacy;
vi. are otherwise unlawful or unreasonable.
9.5 Section 9.4 applies accordingly to Sub-Collectibles and the Exercise Right represented by a Sub-Collectible.
10. CONNECTION OF TOKENS AND RIGHTS TO THE MEDIUM
10.1 In the event of a Secondary Sale, the Secondary Buyer enters into the Agreement in place of the Buyer and thus fully assumes all rights and obligations under this Agreement in place of the Buyer. This expressly also includes all rights and obligations arising from the relationship with the Seller as well as any payment obligations (“Assumption of Agreement”).
10.2 The Buyer’s offer to a third party to sell the Collectibles or Sub-Collectibles shall be interpreted as the Buyer offering the third party as the new Owner of the Token to take over the Agreement with the Seller.
10.3 The Buyer is required to inform the Secondary Buyer of the contents of this Agreement and to obtain his express declaration of the Assumption of the Agreement. This obligation will not affect the validity of an Assumption of Agreement by the Secondary Buyer.
10.4 The Seller gives the consent required for the Assumption of Agreement under the condition subsequent that the Token has been successfully transferred to the wallet address of the Secondary Buyer and that the Secondary Buyer is the Owner of the Token.
10.5 With the Assumption of Agreement by the Secondary Buyer, the Buyer assigns all his claims against the Seller arising from the Agreement to the Secondary Buyer, which the Secondary Buyer accepts.
11. INVALIDATION OF A TOKEN IN CASE OF MISUSE
11.1 If there is a reasonable suspicion that the Buyer has breached his obligations under this Agreement and the Buyer does not remedy such breach within 14 days after a time limit has been set, the Seller reserves the right to transfer the Token to the proper wallet address or, if necessary, to destroy (burn) the Token and reissue (mint) it to the rightful holder of the rights of use of the Medium. A notice period is not required in the case of irremediable violations or in the case of serious violations, such as those based on intent.
11.2 The Owner of the Token is required to cooperate in the destruction of the Token as specified by the Seller (e.g. by transferring the Token to the wallet address specified by the Seller).
12. WARRANTY AND LIABILITY
12.1 The Seller warrants that the Collectible and the Medium, and if purchased the Sub-Collectible, at the time of transfer to the Buyer correspond to the condition described in the Fansea App and thus in accordance with the Agreement and that no third-party rights oppose the use by the Buyer to the contractually agreed extent. The Seller does not give any guarantees.
12.2 If the Buyer is a Consumer, after the expiry of one year from the date of the transfer, section 12.1 applies only if the Buyer proves that the object of purchase was not in a condition in accordance with the Agreement at the time of the transfer.
12.3 In all other respects, the statutory warranty rights will apply, in particular those of section 453 (1) sentence 2, 3, 327 ff. German Civil Code (BGB).
12.4 In the event of any damage caused by slight negligence, each party will only be liable in the event of a breach of a contractual obligation, the fulfilment of which characterises the Agreement and on which the other party may rely, and limited to the damage typical of the Agreement and foreseeable. Sentence 1 will not apply in the case of damages arising from injury to life, body, or health or in cases of mandatory liability, in particular liability for cases in which a procurement risk or a guarantee for damages has been assumed, indemnification obligations, in the case of liability under the Product Liability Act, liability under the GDPR or fraudulent concealment of a defect.
12.5 The Seller will not assume any warranty rights in relation to a Secondary Buyer unless these have been contractually agreed.
13. RIGHT OF WITHDRAWAL
Consumers have a right of withdrawal in accordance with the following provisions:
Model instructions on withdrawal
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right of withdrawal, you must inform us
Fansea GmbH, Bethmannstr. 7-9, 60311 Frankfurt/Main, Germany
E-mail: [email protected]
of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or e-mail). You may use the attached model withdrawal form, but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract)
– To
Fansea GmbH, Bethmannstr. 7-9, 60311 Frankfurt/Main, Germany
E-mail: [email protected]
– I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
– Ordered on (*)/received on (*),
– Name of Consumer(s),
– Address of Consumer(s),
– Signature of Consumer(s) (only if this form is notified on paper),
– Date
(*) Delete as appropriate.
14. EXPIRY OF THE RIGHT OF WITHDRAWAL FOR DIGITAL CONTENT
The right of withdrawal will expire in the case of a contract of sale of a Collectible and a contract of sale of a Sub-Collectible as digital content if the Buyer has expressly consented to the Seller beginning with the performance of the contract prior to expiry of the withdrawal period, the Buyer has acknowledged that by his consent, he will lose the right to withdraw from the contract upon the performance of the contract having commenced and the Seller confirms this to the Buyer.
15. EXCEPTION TO THE RIGHT OF WITHDRAWAL FOR NON-PREFABRICATED GOODS
There is no right of withdrawal in contracts for the delivery of goods which are not prefabricated and are based on an individual choice of or decision by the Consumer or goods made to the Consumer’s specifications or clearly personalised.
16. RISK INFORMATION AND CONFIRMATION OF KNOWLEDGE
16.1 The Buyer is aware that the Collectible has no fixed value and that the price paid for the Collectible is not indicative of the value of the Collectible and its future performance. The value of the Collectible may be subject to significant price fluctuations based on various unforeseeable developments. There is a possibility that the Collectible cannot be resold or can only be resold at a loss, which may result in a total loss of the money invested by the Buyer.
16.2 The Buyer is aware that the Seller does not offer any option of Secondary Sale and has no influence on whether third parties offer an option of Secondary Sale. So it could be the case that the Buyer will never be able to resell the Collectible.
16.3 The Buyer confirms that he has sufficient knowledge of the blockchain technology and knows how to secure his wallet. He will not transfer the Collectible to Secondary Buyers where he has reasonable doubts that this is the case with the Secondary Buyers, to deal with the associated risks before the purchase and confirms his knowledge of the risk information available at https://staging-32e7-fansea5.wpcomstaging.com/risk-information.
16.4 Section 16 applies accordingly to Sub-Collectible.
17. ANTI-MONEY LAUNDERING
17.1 The Buyer warrants (i) that the Collectible or Sub-Collectible will not be used in any manner for any illegal or unethical purpose, including acts related to money laundering, terrorist financing or other acts that violate applicable law, (ii) that the Buyer will not use any proceeds of criminal or illegal acts, and (iii) that no transactions with the Collectible or Sub-Collectible will be used to facilitate or engage in criminal or illegal acts, including acts related to money laundering, terrorist financing or other acts that violate applicable law.
17.2 The Buyer represents and warrants that, as of the date of this Agreement, no criminal or regulatory investigation is pending against the Buyer, any affiliate of the Buyer, any officer or shareholder of the Buyer in connection with Buyer’s business activities.
17.3 The Buyer warrants that, upon conclusion of the Agreement,
17.3.1 he is not included on a sanctions list of the United Nations, the European Union or the Federal Republic of Germany;
17.3.2 he is not acting indirectly (e.g., as a deputy or messenger) for a person who is on one of the sanctions lists referred to in section 17.3.1.
17.4 Should any of the events referred to in section 17.3 occur after the conclusion of the Agreement, the Buyer undertakes to notify the Seller immediately and to immediately suspend all transactions in connection with the Collectible and the Sub-Collectible.
17.5 The Buyer confirms that he is acting exclusively in his own economic interest.
18. DISPUTE RESOLUTION
18.1 In accordance with Art. 14 (1) of Regulation (EU) No. 524/2013 on Online Dispute Resolution (ODR Regulation), the Seller is legally required to refer the Buyer to the European Online Dispute Resolution platform (ODR platform) of the European Commission. The Buyer can reach this at http://ec.eoropa.eu/consumers/odr/. The Buyer can reach this at http://ec.eoropa.eu/consumers/odr/.
18.2 The Seller does not participate in dispute resolution proceedings before a consumer arbitration board and is not required to do so.
19. MISCELLANEOUS
19.1 The Agreement as well as its interpretation as well as all non-contractual obligations in connection with it will be governed by German substantive law. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
19.2 The exclusive place of jurisdiction for all disputes arising from and in connection with this Agreement, including its validity, shall be Frankfurt/Main, except in the case of disputes with Consumers, unless the Buyer has moved his place of residence or habitual abode outside the area of application of the German Code of Civil Procedure (ZPO) or if his place of residence or habitual abode is not known to the Seller at the time of bringing an action.
19.3 Should individual provisions of this Agreement be or become void or ineffective in whole or in part, or should the Agreement contain a loophole, this will not affect the validity of the remaining provisions. Statutory law will take the place of provisions that are not included or are invalid. In all other respects, the parties will replace the void or invalid provision with a valid provision that comes as close as possible to the economic purpose of the void or invalid provision, unless a supplementary interpretation of the Agreement takes precedence or is possible.
***
GENERAL TERMS AND CONDITIONS FOR USING THE FANSEA APP
1. SCOPE
1.1 These General Terms and Conditions (“App GTC”) of Fansea GmbH, Bethmannstr. 7-9, 60311 Frankfurt/Main, Germany (“Fansea”) apply to the use of the App from Fansea (“App”), which is available as webapp and to download in various app stores, as well as to all the Services in connection with the App (the App and the Services offered in connection with the App are collectively referred to as “Services” and the underlying contract incorporating the App GTC as the “App Contract”).
1.2 If the App is made available via an app store, these App GTC will apply in addition to the terms of use provided by Apple (as the operator of the iTunes/Apple app store), Google (as the operator of the Google play store) or other providers (collectively “App Store Operators”). In the event of any conflict, these App GTC will take precedence over the App Store Operators’ terms of use as regards the relationship between Fansea and the Fan (as defined below). However, the App Store Operators are entitled to assert the rights arising from their terms of use directly towards the Fans.
2. DEFINITIONS
In these App GTC, the following terms will have the meanings ascribed to them here, except where set forth otherwise.
2.1 “Blockchain” means the blockchain or comparable technology named in the App for the particular Token offered.
2.2 “Creator” means third parties related to a Medium, such as holders of the rights (e.g., sports clubs and associations, as well as athletes).
2.3 “Medium ” means the Medium associated with the COLLECTIBLE, for example graphics, a 3D object, or a video.
2.4 “Token” means the contractual, unique, and transferable Token in the Blockchain.
2.5 “Wallet” means software included in the App that enables a Fan to manage their Private Keys (as defined below) and thereby dispose of Tokens.
3. USE OF THE APP
3.1 The use of the App is exclusively permitted to natural persons who do not have a commercial profit-making motive (gewerbsmäßige Gewinnerzielungsabsicht) through the use of the App, the acquisition, the sale, or any other use of Tokens (“Fans”).
3.2 A requirement for the use of the Services is that the Fan has an end device that corresponds to the current state-of-the-art technology and meets the relevant specifications stated as a minimum requirement in the respective app store. Furthermore, the use of the Services requires that the Fan has an internet connection that provides a sufficient data transfer rate as well as sufficient storage space on the Fan’s end device, e.g., for downloading and watching videos.
3.3 Provided it is not deemed unreasonable for the Fan, Fansea reserves the right to adapt the Services to market conditions and to continuously improve, expand, change, and delete all or part of the Services.
3.4 The Fan must keep the end device used to access the Services up to date.
4. REGISTRATION
4.1 Fansea’s offer is only available to Fans who have reached the age of 18.
4.2 The requirement for the use of the App is that the Fan registers with the mandatory details stated in the App, in particular with their email address and a password of their own choice. Registration is free. All data must be complete and correct.
4.3 It is not permitted to log in and register using different email addresses. Each Fan can only register once to use the App. Following termination of the App Contract in accordance with clause 11, a Fan may re-register with the App, unless the App Contract has been terminated by Fansea.
5. WALLET
5.1 For the acquisition, sale and otherwise potential use of Tokens via the App, each Fan needs a Wallet. The Wallet can be accessed via the Fansea App where the instructions on how to use it are also available.
5.2 The Tokens are transferred to the Wallet of the respective Fan. The Wallet contains a cryptographic key with which the Fan can dispose of the Tokens (“Private Key”). Neither the Creator nor Fansea have access to the Private Key.
5.3 The Fan must ensure that the Wallet, any associated passwords, the Private Key, and any recovery identifiers (seeds) (together “Wallet Access Data”) are secured against access by third parties by means of the appropriate technical and organisational measures. The Fan is aware that any person who is in possession of the password for their Wallet or who has access to their mobile phone may misuse the Wallet under their name. In particular, in order to protect the password, the Fan must not store it electronically in an unsecured manner and must prevent it from being spied on when entering the password. If the Fan discovers that another person has knowledge of their password or if the Fan suspects this, they must change the password without undue delay.
5.4 The Fan is aware that they are solely responsible for the control of their Wallet and that the loss of control of the Wallet may result in the need for a new registration in the App, that the rights to a Token can no longer be proven and that Tokens can no longer be disposed of. Fansea has no responsibility whatsoever for the Wallet and cannot recover lost Wallet credentials.
6. OBLIGATIONS OF THE FAN
6.1 The Fan is obliged to use the Services properly and to only use them in accordance with the applicable law of the country in which the App is provided or used, and in particular, to
6.1.1 treat their access data to the App, as well as the Wallet Access Data, confidentially, not to pass this information on or disclose it to third parties (in particular other persons within their organisation or company) and to protect this information from intentional or accidental communication by third parties. Third parties must not be allowed to use the access data. The Fan guarantees that they will not allow third parties unauthorised use of this access data;
6.1.2 inform Fansea without undue delay if the Fan has reason to believe that third parties have gained knowledge of their access data, or if there are other indicators of unauthorised use of their access data;
6.1.3 not take any action aimed at circumventing technical protection measures in the App and to refrain from any form of unauthorised use of the Services, in particular attempts to overcome or circumvent the App’s security mechanisms or otherwise disable them, to use computer programs that enable the automatic reading of data, and to use/insert and/or disseminate viruses, worms, trojans, brute force attacks, spams or links, programs or procedures that are likely to harm Fansea, the App and/or other Fans;
6.1.4 take all necessary and reasonable steps to prevent or limit any damage caused by the use of the Services;
6.1.5 be respectful and courteous, to respect the opinions of others, not to be defamatory, threatening, intimidating, and not to use harassing, racist, immoral, abusive, insulting, or offensive behaviour;
6.1.6 not to use any materials (e.g., texts, pictures, films, video clips) or to disseminate any information that
6.1.6.1 have criminal content;
6.1.6.2 constitute hatred, intolerance, violence, discrimination, or any other form of disregard for the rights of third parties or otherwise violate the rights of third parties, in particular no offensive or derogatory material relating to gender, race, religion, skin colour, origin, age, physical or mental disability, medical condition or sexual orientation;
6.1.6.3 infringe the rights of third parties (in particular copyrights, publication rights, patents, trademarks, service marks, trade names, trade secrets or other intellectual property rights);
6.1.6.4 are associated with gambling activities;
6.1.6.5 violate a person’s privacy;
6.1.6.6 are otherwise unlawful or unreasonable.
6.1.7 not disseminate any mass or promotional messages or marketing or advertising activities through the App unless expressly permitted in writing by Fansea.
6.2 The Fan will notify Fansea without undue delay upon becoming aware of any Fan Content (as defined below) or activity by a Fan on the App that breaches clause 6.1.
6.3 The Fan is aware that any Fan Content (as defined below) will be published within the App and will, therefore, be viewable by third parties.
6.4 Any breach of this clause may result in immediate exclusion from using the App and the institution of civil and criminal proceedings and claims for damages by Fansea against the Fan.
7. GRANTING OF RIGHTS
7.1 If the Fan provides content, in particular text, images or videos (“Fan Content”) within the App, the Fan grants Fansea free of charge at the time of providing the Fan Content – and Fansea accepts this – the non-exclusive, transferable and sub-licensable right, unlimited in terms of time, space and content, to realise the Fan Content for the purposes of the functions provided in the App, in particular, to make it accessible to other Fans in the App and to the public, as well as to store, reproduce and edit it if necessary.
7.2 The Fan confirms and assures that they are entitled to grant Fansea the abovementioned rights and that Fan Content does not infringe the rights of third parties, any statutory provisions, or principles of morality (e.g., through its content, visual design or intended use).
8. PROVISION OF SERVICES; MAINTENANCE AND SERVICE
8.1 The Services are provided free of charge, unless it is expressly stipulated in the App that a Service is only provided in individual cases against payment of a fee, which can either be in euros, another national currency or in Tokens approved for this purpose by Fansea.
8.2 The Fan’s right to use the Services is limited to the term of this App Contract, is revocable, non-exclusive, non-sublicensable and non-transferable.
8.3 Fansea reserves the right to technically provide marketplaces, which are sometimes Creator-specific, operated by Fansea or a Creator, and through which Creator-specific Tokens can be issued to Fans and resold to other Fans.
8.4 In the event of any defects in the Services, Fansea is entitled to provide an updated version of the App in the relevant app store and the Fan is obliged to install such updated version on its end device.
8.5 If the App is expressly provided for testing and evaluation purposes only, the Fan acknowledges that the App may not perform as expected.
8.6 The Fan acknowledges that all enhancements provided by Fansea are the sole property of Fansea, even if they are the result of feature requests or bug reports from Fans.
8.7 Fansea will facilitate the use of the App within the current state-of-the-art technology and endeavour to ensure the greatest possible availability. Fansea reserves the right to temporarily restrict access to the App or the ability to use it, in whole or in part, if this is necessary due to capacity limits or the security or integrity of the servers, or in order to carry out technical measures that serve the proper provision of the Services or improvement (e.g., for maintenance work). Where possible, Fansea will perform maintenance on the App during the hours after 8pm and before 8am German time.
8.8 Fansea has no obligation to provide updates or upgrades for the App or to adapt the App in any other way to possible changes to hardware and/or software (in particular, operating systems).
9. WARRANTY AND LIABILITY
9.1 Fansea gives no guarantees and assumes no warranties with respect to the App. Any such promises by Fansea employees are invalid.
9.2 Fansea is not liable for deviations from the agreed quality of the App and for any conflicting rights based on use which are in breach of contract or for any unauthorised modifications made by the Fan or third parties.
9.3 In any case of simple negligence each party is liable for the breach of a contractual obligation which gives distinction to the App Contract and on which the Fan may rely on (essential obligation) and limited to the typical and foreseeable damage only. Sentence 1 does not apply to culpable damage to life, body or health nor in cases of mandatory liability including without limitation liability for cases in which a procurement risk or a guarantee for damages has been assumed, indemnification obligations, liability under the Product Liability Act, liability under the GDPR or where a defect is fraudulently concealed. Subject to liability for intent, liability for indirect loss is excluded.
9.4 Claims for damages against Fansea pursuant to clause 9.3 sentence 1 will become time-barred two years after they have arisen unless a case of clause 9.3 sentence 2 exists. If a defect has become apparent within the limitation period, the limitation period shall not commence before the expiry of four months after the date on which the defect first became apparent.
9.5 The liability of the parties pursuant to clause 9.3 sentence 1 is limited to a total of EUR 100,000 for all losses incurred.
9.6 Fansea is not liable for any losses of the Fan resulting from transferring the Token from the Fansea provided Wallet (in accordance with Clause 5 of this App GTC) to any external Wallet.
10. INDEMNITY
The Fan undertakes to fully indemnify Fansea against any claims made by third parties based on an infringement of rights attributable to the Fan, unless the Fan can prove that they are not responsible for the breach of duty causing the damage.
11. CONTRACTUAL TERM
Unless otherwise agreed, e.g., in the respective app store, the contract is concluded for an indefinite period of time and may be terminated by either party at any time without notice in text form or by deactivating the Services.
12. DATA PROTECTION
The privacy notices of Fansea can be found at https://staging-32e7-fansea5.wpcomstaging.com/privacy-policy ; they are not the subject of this contract.
13. CHANGES TO THESE APP GTC
Changes to these App GTC will be notified to the Fan either via the App or by email to the Fan’s email address on file with Fansea. The Fan can agree or disagree with the changes. Provided the proposed changes do not affect the main contractual obligations or charges for these main service obligations, the Fan’s consent to the changes to the App GTC is deemed to have been given if Fansea has offered the changes to the Fan at least two months before the date on which they take effect, and the Fan has not objected to the changes within this period. Fansea will draw the Fan’s attention to this separately in an announcement of the changes to the App GTC. Changes to the main contractual obligations require the express consent of the Fan to become effective.
14. MISCELLANEOUS
14.1 The App Contract reflects the agreements made between the parties in full; no ancillary agreements have been made. All Services and offers of Fansea in connection with the App are provided exclusively based on this App Contract.
14.2 The App Contract and its interpretation, as well as all non-contractual obligations in connection with it are subject to German law. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
14.3 The App Contract is subject to the jurisdiction of the courts in Germany unless any statutory national consumer protection provisions in the country in which the Fan is domiciled or habitually resident prevail in their favour. If the Fan moves their domicile or habitual residence outside the area of application of German law after concluding the contract, or their domicile or habitual residence is not known at the time legal action is brought, the Frankfurt Regional Court will have jurisdiction.
14.4 Should individual provisions in this contract be or become void or invalid in whole or in part, this will not affect the validity of the other provisions. The provisions of statutory law (section 306 (2) German Civil Code (BGB)) will apply instead of any standard business terms that are not included or are invalid. In all other respects, the parties will agree on a valid provision to replace the void or invalid provision which comes as close as possible to the void or invalid provision, provided that supplementary interpretation of the contract does not take precedence or is possible. The same applies in the event of an omission.
14.5 The European Commission has set up a European Online Dispute Resolution (ODR) platform at http://ec.europa.eu/consumers/odr/. Fansea does not participate in dispute resolution proceedings with any dispute resolution body.
***
