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WINKYVERSE

Winkyverse Terms & Conditions

Last revised: 06/06/2023

These Terms and Conditions (the “Terms and Conditions”) are the terms and conditions upon which Mainbot, a French société par actions simplifiée, registered under number 824 611 800 with the Trade and Companies Register of Paris, whose registered office is located at 33 Avenue du Maine, Tour Maine, Montparnasse, 45ème étage, 75755 Paris Cedex 15 (the “Seller” or “MAINBOT”) will allow the Buyer/User/Content creator to purchase, claim and/or mint NFTs and use the Academy alpha test. 

These Terms and Conditions are a legally binding agreement between the Seller, You as a Buyer, User or Content Creator and/or any subsequent purchaser of the NFTs.  

Please read these Terms and Conditions carefully as they set out and explain Your legal rights and obligations including waivers of rights and limitation of liabilities. By purchasing, claiming and/or minting NFTs, or using the Academy alpha test, You acknowledge and agree that You have read this document and that You agree to be bound by it. 

We strongly recommend that you do not purchase, claim and/or mint NFTs if you are not an expert in cryptocurrencies, digital assets and blockchain technology. Even if you have knowledge of the technology, you should consult your own lawyer, accountant, and other professionals where so required. The Seller will not be responsible in any way for any loss incurred by you resulting from the purchase, claim and/or mint of NFTs. 

BY AGREEING TO THESE TERMS AND CONDITIONS YOU EXPRESSLY AND DEFINITIVELY CONSENT TO WAIVE ANY RIGHT TO A REFUND OF YOUR PURCHASE, IN ACCORDANCE WITH ARTICLE 14 OF THESE TERMS AND CONDITIONS. 

By purchasing, claiming and/or minting NFTs, using or otherwise accessing the Website, you shall be deemed to acknowledge that you do so with full consent and full knowledge of these Terms and Conditions having first obtained legal advice as to the full force and effect of these Terms and Conditions. Your participation will be deemed to be your undertaking that you satisfy this requirement and shall be deemed to be your unequivocal and express consent to be bound by these Terms and Conditions.

BACKGROUND

Please visit the Website and read the Information for yourself. The Website and the Information provide a non-binding description, for information purposes only, of the Access Rights.

DEFINITIONS

Access Rights – is defined in Article 1.3 of the present Terms and Conditions.

Agreement – these Terms & Conditions exclusively and no other. This Agreement governs your participation in this sale for Primary Transactions on the Website as well as subsequent Secondary Transactions between Transferees and Transferors (as defined below).

Blockchain – the underlying blockchain technology on which the NFTs are minted and sold. The Winkyverse NFTs (lands and other NFTs, described on the Website and in Annex 1) shall be offered for sale on the Ethereum blockchain and payable in WNK and FIAT currency. By extension, it also refers to every blockchain technology the Seller or Buyer may use. As such, users acknowledge that a ‘bridge’ system is set up by the Seller, which increases interoperability between the blockchains, allowing users to transfer their Winkies from Ethereum to the Binance Smart Chain and vice-versa, subject to gas fees paid in WNK and with the native currency of the blockchain (BSC or ETH). 

Buyer – the purchaser of the NFTs, “Purchaser”, “you”, “You” “your”, or “yourself”.

Disclaimed Parties – means Us and Our contractors, sub-contractor, affiliates, subsidiaries and agents and their officers, directors, employees and agents.

Dutch Auction – means an auction in which the auctioneer begins with a high asking price (the “Starting Price”) and lowers the Starting Price on an automatic basis until one participant accepts the price, or when the Starting Price reaches a predetermined reserve price (the “Floor Price”). The Starting Price, the Floor Price, the pace of decline of the price and the procedure of the Dutch Auction will be set forth on the transaction page of the Website.

Ethers (ETH) – means the native tokens of the Ethereum blockchain.

FIAT currency - means a legal tender managed by a Central Bank and controlled by a State. If not specified, this currency is the EURO. 

Information – the description on a non-binding basis of the NFTs and the Access Rights available on the Website. The Information may be modified and changed from time to time by the Seller.

NFTs – means, in the absence of clear legal definition under French law as of the date of this Agreement, an element recorded into a blockchain that represents an intangible asset such as an image, a character, a digital land or work of art. For the purpose of this sale and this present Agreement, NFTs refer to the collections listed in Annex 1. Each NFT is digital in nature and except as explicitly specified otherwise in these Terms and Conditions, is not linked to nor is sold together with (i) any items or representations that have physical dimensions such as mass or volume, or (ii) any Access Rights as of the time of purchase. 

NFT Sale – means the present NFTs sale. For the avoidance of doubt, the purchased NFTs will be determined by the Smart Contract (as defined below) among the collections of NFTs covered by this NFT Sale.

Content Creator – refers to the person who create and publish content on the Winkyverse or any other pre-launch platform such as Spatial.

Politically exposed person (PEP) – means an individual who is or has been entrusted with a prominent function. 

Primary Transaction – means a transaction facilitated through the Website in which an NFT is first sold to the Buyer. 

Prohibited Person – person who is a resident or national of the following countries: Afghanistan, Albania, Angola, Azerbaijan, Bosnia Herzegovina, Bahamas, Barbados, Belorussia, Burma, Botswana, Burkina Faso, Burundi, Cayman Islands, Cambodia, Cameroon, Crimea (Ukraine), Chad, China, Congo, Democratic Republic of Congo, Cuba, Ethiopia, Eritrea, Fiji, Palau, Ghana, Guinea, Guinea-Bissau, Haiti, Iran, Iraq, Jamaica, Jordan, Lao People's Democratic Republic, Uganda, Liberia, Libya, Madagascar, Mali, Malta, Morocco, Mozambique, Nicaragua, Nigeria, North Korea, Pakistan, Panama, Philippines, Puerto Rico, Russia, Senegal, Somalia, Sri Lanka, Sudan, Syria, Tajikistan, Trinidad and Tobago, Turkey, Turkmenistan, United States, Uzbekistan, Vanuatu, Venezuela, Virgin Islands, Yemen, Zimbabwe. This list might be updated from time to time depending on the international sanctions.

Secondary Transaction – means any transaction in which an NFT is sold by an owner to another owner, or is otherwise transferred, distributed, or disseminated (regardless of whether consideration is paid) in any manner that is not a Primary Transaction, for instance, on the platform Opensea (https://opensea.io). Unless explicitly specified otherwise in Annex 1, all NFTs may be subject to Secondary Transaction. 

Seller – Mainbot, a French société par actions simplifiée, registered under number 824 611 800 with the Trade and Companies Register of Paris, whose registered office is located at 33 Avenue du Maine,Tour Maine, Montparnasse, 45ème étage, 75755 Paris Cedex 15 and “MAINBOT“, “Us”, “We” or “Ours” in these Terms and Conditions.

Terms and Conditions – the terms and conditions contained in this Agreement.

This Jurisdiction – means France.

User – refers to any user of Winkyverse and/or during the pre-launch the user of Academy alpha test accessible on Winkyverse through the pre-existing tool Spatial (https://www.spatial.io/).

Wallet – refers to an Ethereum network compatible wallet address and a wallet that is compatible with the Website, over which MAINBOT has no visibility, no liability or control. 

Website – means the Mainbot Non-Fungible Tokens Sale websites available at www.market.winkyverse.io and www.winkyverse.io. The access and use of the Website are subject to the Agreement (the “Terms and Conditions” as defined above) which constitutes the terms for the use of the Website. Buyer further acknowledges that he has carefully read and accepted (i) the present Terms and Conditions accessible at https://www.winkyverse.io/terms and (ii) the Privacy Policy accessible at https://www.winkyverse.io/privacy (the “Website Privacy Policy”) governing its use of the Website. During the Academy alpha test, corresponding to pre-launch phase, only an alpha academy is available on Winkyverse.io through Spatial. Content Creators and users of the Academy alpha test agree to comply with Spatial terms and conditions (https://www.spatial.io/terms).


RECITALS

WHEREAS, the Seller will allow the sale, claiming and minting of the NFTs.

WHEREAS, the Buyer and the User agree to abide by these Terms and Conditions.

NOW THEREFORE, in mutual consideration of the covenants and agreements contained herein, the Seller and the Buyer, the User agree as follows:

INTERPRETATION

Unless the context of this Agreement otherwise requires:

  • words of any gender include all other genders;
  • words using the singular or plural also include the plural or singular respectively;
  • the terms “hereof”, “hereby”, “hereto” and derivatives of similar words refer to this entire Agreement;
  • the word “including” shall mean “including without limitation”.

The Terms and Conditions are only in respect of the sale, mint and/or claim of NFTs. Any potential future use of the NFTs in connection with the Access Rights that may be provided by the Website and/or the Seller may be governed by other applicable terms and conditions.

  1. ACCESS RIGHTS

1.1. The Buyer acknowledges and agrees that, except as explicitly specified otherwise, the NFTs do not have attached to them any rights, neither express nor implied, other than the ownership of the personal property rights to the NFTs (e.g., the right to freely sell, transfer, build pursuant to the technical specifications, or otherwise dispose of that NFT) that are attributed by the Smart Contract (as defined below). No other rights of any kind or nature with respect to the NFTs or any image or other intellectual property (i.e. all intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, code, trade, business, domain or company names, moral rights, rights in confidential information, know-how or other proprietary rights (whether or not any of these are registered and including any application for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world) associated with, related to, or linked to, an NFT are granted or licensed to the Buyer.

1.2. For the avoidance of doubt, without limiting Article 1.1, nothing contained in this Agreement will be deemed to grant Buyer any rights in or to any image or other intellectual property associated with, related to, or linked to, an NFT, including any right to use such image or intellectual property for any non-personal or commercial purposes, or to create any derivative works of such image or intellectual property. Notwithstanding the foregoing, to the limited extent that an image is displayed as a result of the operation of the smart contract related to the NFT in connection with Buyer’s use of an NFT in accordance with this Agreement, Buyer will have the right to display such image for Purchaser’s own personal, non-commercial purpose for so long as Purchaser owns the NFT.

1.3. Each NFT may following the date hereof entitle the Buyer to certain tangible or intangible rights, benefits, preferences, or privileges herein offered from time to time by the Seller or third parties in their respective sole discretion (“Access Rights”).Notwithstanding the above paraphs 1.2 and 1.3, the NFTs may offer the possibility, in the future, to let the Buyer (i) design its personal space, (ii) host content and experiences for other users, (iii) build utility infrastructures, into the land made available in The Winkyverse, which may be subject to fees, paid by users to NFTs’ (lands) owners. Access Rights, if any, will be offered pursuant to separate terms (whether written or unwritten) published from time to time by the Seller, or the applicable third party.

1.4. The Buyer, upon purchasing, claiming and/or minting NFTs, acknowledges and agrees that he will not have any rights in shares, security, ownership or any such other rights or any future rights to receive them, nor any intellectual property rights in the Seller and its affiliates.

1.5. With the exception of content created by the Content Creators and/or by Mainbot, all the, graphic, textual or other elements available on the alpha Academy and/or on Spatial (texts, graphs, software, multimedia files, photographs, images, videos, sounds, plans, graphic style charters, technologies, source codes, names, trademarks, logos, visuals, databases, etc.) are the exclusive property of either Mainbot or Spatial.

  1. THE NFTS

Buyer should have no expectation of price appreciation of the NFTs whatsoever.

  1. DEVELOPMENT

3.1. In purchasing the NFTs, the Buyer acknowledges, agrees and fully understands that the Access Rights are still in the development stage and no guarantee is given relating to the delivery. A pre-launch version, corresponding to the Academy alpha test is available through Spatial.io

  1. OFFER AND SALE

4.1. The Seller offers for sale to the Buyer NFTs in accordance with these Terms and Conditions.

4.2. The Buyer agrees to purchase, claim and/or mint NFTs offered for sale from the Seller in accordance with these Terms and Conditions.

4.3. The Buyer will, within a couple of hours from the purchase, claim and/or mint of the NFTs by him, receive its purchased NFTs on its public Ethereum address communicated to the Seller.

4.4. These Terms and Conditions do not prevent any issuing a new NFTs collection, thereby reducing its scarcity. 

  1. PAYMENT AND FEES

5.1. Purchaser hereby agrees to purchase the NFT at the price set forth on the transaction page of the Website and in accordance with the procedures set forth on the Website (the “Purchase Price”). 

5.2. Buyers shall only pay the Purchase Price by using WNK or FIAT currency unless otherwise determined in Seller’s sole discretion. Also, buyers shall pay the transaction fees, with the native currency of the blockchain.

5.3. For the avoidance of doubt, the Purchase Price is per NFT, multiplied by the number of NFTs purchased.

5.4. TAX 

The Buyer is solely responsible for submitting its tax return and for its tax liability, if any, in relation to the ownership, transfer or creation of NFTs and the use of Winkyverse which may adversely affect him including, but not limited to, withholding taxes, income tax, VAT, or other applicable taxes.

Should you need an invoice, please make sure to provide the Seller with below necessary information:

-     Name and billing address of the Buyer; 

-     Details of your order. 

  1. NFT PURCHASE PROCEDURE

6.1. The Buyer should register its interest in the purchase of NFTs. This will be done through the Website.

6.2. Payment of the Purchase Price will not be deemed received until such a time as the entire Purchase Price of the NFTs, in WNK or FIAT currency has been paid in full. Any foreign exchange charges are the sole responsibility of the Buyer and no deduction must be made against the Purchase Price.

6.3. The Seller reserves the right, in its sole discretion, to limit the number of NFTs that may be purchased by any single person, directly and/or indirectly.  Buyer may only purchase a maximum number of NFTs per Wallet as determined from time to time by the Seller in its sole discretion.

6.4. Failure to follow the instructions and procedures provided by the Seller or payment by any other means than those authorized are not accepted by the Seller.

6.5. Buyers can buy NFTs only via digital asset wallets (for which the user is entirely responsible) compatible with the Ethereum blockchain. 

6.6. The Buyer acknowledges and agrees that upon completion of the NFT Sale, to the fullest extent applicable under law, no refunds and/or cancellations are permitted unless agreed in writing by the Seller.

6.7. The Seller gives no guarantee and makes no representations whatsoever as to the future value of the NFTs.

6.8. The Buyer acknowledges and agrees that he has no right to obtain a refund of his contribution, or otherwise cancel his purchase of NFTs obtained via this NFT Sale, once such purchase is completed and NFTs are minted due to the uncertainties of the value to be attributed to the NFTs once minted and/or the fluctuations inherent in the value of cryptocurrency generally. 

  1. DELIVERY AND WALLET

7.1. The NFTs to be minted by the Buyer will be initially locked in a smart contract deployed on the Ethereum Blockchain (the “Smart Contract”). 

7.2. By using his Ethereum blockchain address, the Buyer will be able to claim, mint and receive the NFTs by interacting with the Smart Contract directly on the Ethereum Blockchain. The minted NFTs will be automatically transferred from the Smart Contract’s address to the Ethereum Blockchain address of the Buyer. 

7.3. The Seller will inform publicly the Buyers of NFTs of the Smart Contract’s address to be used by the Buyer for the purpose of claiming, minting and receiving the NFTs. The Buyer shall pay the transaction fees (such as Gas Fees) required for the interaction(s) with the Smart Contract (i.e. claiming, minting and receiving the NFTs), these transaction fees (Gas Fee) are paid in ETH, the native currency of the Ethereum blockchain. “Gas Fees” fund the network of computers that run the decentralized Ethereum network, meaning that the Buyer will need to pay a Gas Fee for each transaction that occurs via the Ethereum network. The Seller does not have any insight into or control over these payments or transactions, nor does the Seller has the ability to reverse any transactions. Accordingly, the Seller 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 on the NFTs that you engage in.

7.4. The Buyer expressly acknowledges that the NFTs will not be sent directly by the Seller and may only be received through interaction(s) with the Smart Contract. Therefore, the Buyer understands that it is his responsibility to claim and mint the NFTs, and that the loss of his cryptographic private key (or other equivalent credential) corresponding to the Ethereum blockchain address mentioned above and giving access to the NFTs may impair his ability to receive the purchased NFTs. The Seller shall not be responsible for the loss incurred by the Buyer in the event of a loss of such cryptographic private key (or other equivalent credential).

7.5. For the avoidance of doubt, the Seller’s obligation to deliver the NFTs will be materialized by the deployment of the Smart Contract, as long as, by interacting with the Smart Contract, the Buyer is able to claim, mint and receive a number of NFTs corresponding to the amount purchased, provided that the Buyer shall have claimed and minted all of its NFTs by the end of the sale; after this deadline, the possibility to claim and mint NFTs will no longer be possible.

7.6. The Buyer must keep its wallet, private key, and login access to the Website safe and not share them with any other person.

7.7. All Secondary Transactions are subject to the following terms: the NFTs transferee (the “Transferee”) shall, by purchasing or otherwise receiving the NFTs, be deemed to accept all of the terms of this Agreement as a “Buyer” hereof and the NFTs transferor (the “Transferor”) shall provide notice to the Transferee of this Agreement, including a link or other method by which the terms of this Agreement can be accessible by the Transferee, and shall cause the Transferee to agree to the terms of this Agreement. Buyer further acknowledges and agrees that all Secondary Transactions will be effected on the Ethereum blockchain (or any other blockchain indicated by the Seller), the blockchain network governing the NFTs. Transferor represents and warrants that it will not transfer NFTs to a Prohibited Person.

  1. ACKNOWLEDGEMENT OF RISK

8.1. The Buyer represents and warrants that he fully understands and has significant experience of cryptocurrencies, digital assets, NFTs, blockchain systems and services.

8.2. The Buyer acknowledges and agrees that he has sufficient understanding of the functionality, usage, storage, transmission mechanisms and other material characteristics of non-fungible cryptographic tokens, token wallets and other token storage mechanisms, public and private key management, blockchain technology, and blockchain-based software systems to understand this Agreement.

8.3. The Buyer fully understands the risks associated with the trading of cryptocurrencies and digital assets, the purchase, claim and mint of NFTs, as well as the mechanics related to the use of such cryptocurrencies, digital assets and NFTs (including with respect to their storage and exchange). 

8.4. The Buyer represents and warrants that he has not entered into transactions that are above its financial abilities.

8.5. The Buyer acknowledges and agrees that he understands that he may lose part or all of his contribution in this NFT Sale.

8.6. The Buyer acknowledges and agrees that he is aware that cryptocurrencies, digital assets and NFTs operate in a network without intermediaries and do not benefit from legal tender, unlike currencies issued by central banks. Their value is not guaranteed. 

8.7. The Buyer acknowledges and agrees that if the Access Rights are finally not developed, developed differently than expected or cannot function properly, the NFTs will not be refunded which is a significant risk that You accept. Moreover, there is no guarantee of liquidity with respect to the NFTs as well as the existence of a secondary market. As a result, the Buyer may not be able to sell his NFTs easily or at prices that would provide him with a valuation gain.

8.8. You acknowledge and agree that each payment of the Purchase Price of one NFT gives You right to claim and mint one of the NFTs for this batch subject to the present Agreement, as randomly attributed by the Smart Contract, and that each minted NFT may have a different value in any secondary market. No request for replacement of the minted NFT will be accepted by the Seller. Moreover, the Seller may in the future proceed to any modification of the NFTs that he will consider, in good faith, as an improvement of the NFTs.

8.9. You represent and agree that the Seller may decide, in its sole discretion, to move the NFTs on a different blockchain than Ethereum, in particular if such a new blockchain is considered as more suitable to support the NFTs. 

8.10. You represent that You have read, understood and agreed to all the risk factors described in these Terms and Conditions. 

  1. REPRESENTATION, WARRANTIES AND COVENANTS

You hereby agree that by purchasing, claiming and/or minting NFTs, you warrant and represent the following to be true:

9.1. You are not a Prohibited Person or person from any jurisdiction under trade embargoes and economic sanctions issued by OFAC or European Union may evolve from time to time.

9.2. You are not a Politically Exposed Person (PEP, as defined above).

9.3. You are legally permitted to purchase, claim, mint and hold the NFTs in your jurisdiction.

9.4. You have not received advice from the Seller regarding the purchase, claim and/or mint of NFTs.

9.5. You are of legal age to purchase, claim and mint the NFTs and are not aware of any legal reason preventing you from doing so in your jurisdiction or in this Jurisdiction.

9.6. You are of sound mind and have the requisite power and authority to understand and agree to these Terms and Conditions and to carry out and perform the obligations as set out hereunder.

9.7. The funds you provide have not been derived from or related to any unlawful activity including but not limited to money laundering, terrorist financing and furthermore you agree that you will not use the NFTs and/or Website for unlawful or fraudulent purposes. 

9.8. You will not assign or otherwise transfer your Website account to any other person or legal entity; You will not use an account that is subject to any rights of a person other than you without appropriate authorisation. 

9.9. You will not impair the proper operation of the Website.

9.10. You hereby acknowledge that you are solely responsible for submitting your tax return and for your own tax liability, if any, in relation to the ownership, transfer or creation of NFTs and the use of the future Winkyverse which may adversely affect you including, but not limited to, withholding taxes, income tax, or other applicable taxes.

9.11. You hereby acknowledge that you have sole responsibility for the acquisition, appreciation or depreciation of the value of your minted NFTs.

9.12. You will hold a suitable online or offline wallet or storage mechanism to support the NFTs.

9.13. You represent and warrant that you will not use the NFT to violate any right of the Seller, its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent. 

9.14. The NFTs sold through the Website comply with the regulations in force in France and have performances compatible with the uses expected of non-fungible tokens.

The Purchaser acknowledges and accepts that the warranty provided for in articles L. 224-25-16 et seq. of the French Consumer Code is not applicable, as the Seller cannot be considered as the "Producer" within the meaning of the legal definition on the legal guarantee of conformity for goods, digital content and digital services, since the digital content and associated services offered on the Website are carried out by an automated computer program ("Smart Contract") deployed on the Blockchain in a totally decentralised manner.

The Purchaser acknowledges that he/she takes the NFT as it is and the warranty for hidden defects is excluded.

In any event, the Seller cannot be held liable for the following:

  • non-compliance due to Blockchain technology;

  • non-compliance due to the volatility of the NFTs price;

  • non-compliance due to incompatibility between the NFT and the Purchaser;

  • non-compliance due to the Purchaser's failure to comply with the legislation of his own country;

  • non-compliance due to the Purchaser's negligence or misuse of the NFT, in particular in the event of use not in accordance with the intended purpose.

  1. LIMITATION OF LIABILITY

10.1. To the maximum extent permitted by law and any regulatory provisions to which We are subject to, You acknowledge and agree that the entire risk arising out of Your participation in and purchasing, claiming and/or minting of the NFTs is entirely Yours and remains with You at all times, before, during and after such risk may apply.

10.2. To the maximum extent permitted by law, neither We nor any Disclaimed Party involved in the sale of NFTs as well as their creation, production, mint or delivery will be liable, in any way, for any incidental, special, exemplary, legal (reasonable costs) or consequential losses or damages, this to include inter alia loss of profits, loss of data (excluding personal data), loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages whatsoever of a personal nature, arising out of or in connection with these NFTs whether or not they are based on warranty, contract, tort, this to include negligence, product liability or any other such thing, whether or not We have been informed of such matters and the possibility of any such damages or alike, this also, even if a limited remedy set forth and contained in these Terms and Conditions has failed or could fail, because of essential purpose.

10.3. To the maximum extent permitted by the law of the applicable jurisdiction, in no event will the aggregate liability of the Seller as well as the Disclaimed Parties arising out of or in connection with this Agreement, the purchase of any NFT, from the use of or inability to use or interact with any NFT or access or from the receipt or exploitation of any Access Rights, or the lack of Access Rights exceed the Primary Transaction Purchase Price. The limitations of damages set forth in this Article is a fundamental element of the basis of the bargain between You and Us.

10.4. Under no circumstances the Seller will be liable for any loss or damage incurred by the Buyer in respect of any breach of security in respect of his password, credentials and secret codes. Neither the Seller nor the Disclaimed Parties will be liable or responsible to the Buyer for any loss, and takes no responsibility for any use of the NFTs, including but not limited to any damages, losses or claims arising from (i) user error such as incorrectly constructed transactions, forgotten passwords or mistyped wallet addresses, (ii) corrupted files, (iii) server failure, (iv) unauthorized access to the NFTs or (v) any third-party activities, including without limitation the use of viruses, phishing, bruteforcing, hacking or other means of attack. Neither the Seller nor any Disclaimed Party will be responsible for any kind of failure, abnormal behaviour of software (e.g., smart contract, wallet), blockchains or any other features of the NFTs. Neither the Seller nor any Disclaimed Party is responsible for casualties due to late report by developers or representatives (or no report at all) of any issues with the blockchain supporting the NFTs, including technical node issues, forks or any other issues having fund losses as a result. 

10.5. You agree to release, indemnify, and hold Us and Our contractors, sub-contractor, affiliates, subsidiaries and agents and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with Your violation of any of these Terms and Conditions.

  1. DISCLAIMERS

11.1. If you choose to purchase, claim and/or mint NFTs, you do so entirely at your own risk.

11.2. You acknowledge and agree that we do not have any obligations, whatsoever, or under any circumstances, to conduct any checks not required by applicable law, including but not limited to, background checks, on any Buyer.

11.3. You hereby acknowledge and agree that the NFTs and the Website are made available “as is” and “as available”, with no warranties of any kind whatsoever and that, without prejudice to the generality of the foregoing, we make no warranty regarding, and shall have no responsibility for, the accuracy, availability, reliability, security, fitness for purpose or performance of the same. The Seller explicitly disclaims on behalf of itself, all other entities, persons and parties that are on in the future may provide any Access Rights, and each of their respective officers, employees, directors, representatives and agents (collectively the “Disclaimed Parties”), any and all guarantees, warranties and conditions, implied or express, including without limitation any implied warranty of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement, to the maximum extent permitted by applicable law, and any warranties arising out of trade or usage or dealing. The Seller, on behalf of itself and the Disclaimed Parties, makes no guarantee, representation or warranty that the NFTs will meet Buyer’s requirements, or the NFTs will be available on an uninterrupted, error-free, or secure basis. Neither the Seller nor the Disclaimed Parties make any warranty or representation or guarantee regarding the accuracy, timeliness, quality, truthfulness, completeness or reliability of any content or information related to the NFTs. 

11.4. We make no warranty that the NFT Sale, including but not restricted to, any information provided via any communication will meet Your requirements or will be available or made available in an uninterrupted, secure, or error-free basis.

11.5. We make no warranty in respect of the quality, truthfulness, completeness, or reliability of any content obtained through the Website.

11.6. No advice or information, whether oral or in writing, obtained from Us or Our Website will create any warranty herein.

11.7. The Seller does not guarantee, warrant, or represent that any item downloaded from the Internet on the Website is free from viruses. You are explicitly responsible for implementing appropriate procedures, anti-virus protection and software to protect yourself and your data. In this regard, the Seller is not liable for any damage caused to your equipment due to the use of the Website or through material posted on or linked to any website. You should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from us. 

11.8. The Seller bears no responsibility and cannot provide any warranty whatsoever in relation to the success or otherwise of the NFTs. The NFTs may have no value and you as Purchaser may lose all amounts paid. The Purchaser agrees, understands and assumes all risks in relation to the Purchase Price.

11.9. The Website may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by us. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website from the Website, you do so at your own risk, and you understand that these Terms and Conditions do not apply to your use of such external websites. You expressly relieve us from all liability arising from your use of any third-party website, service, or content. 

 

11.10. The regulatory status of the NFTs remains unclear or unsettled in many jurisdictions. Indeed, some jurisdictions may implement legislation that will affect NFTs. The Seller accepts no liability in relation to regulatory action that may be taken or which may affect the Seller in the future. Furthermore, the Seller may cease operations in a jurisdiction which takes regulatory action, changes laws adversely or makes it commercially undesirable to trade in such jurisdiction.

11.11. The Buyer acknowledges and agrees that he may only access the Website using authorised means. The Seller is not liable if you do not have a compatible device, computer, operating system, browser, or any other software or hardware with which the technology is not compatible.

11.12. The Buyer represents and warrants that he (i) is purchasing the NFTs for personal enjoyment purposes only, and (ii) is not purchasing any NFT with the intent or expectation of profits from any appreciation in value or otherwise from the NFTs or any Access Rights that may from time to time be granted by the Seller or third parties.

11.13. The Seller bears no responsibility with respect to transactions involving the Seller may rely on third-party platforms to perform transactions which are outside of the Seller’s control. Use and interaction of the NFTs may allow Buyer to access third-party websites or other resources. All such websites are provided only as a convenience and neither the Seller nor the Disclaimed Parties are responsible for the content, products, or services on or available from those resources or links displayed on such websites. Buyer acknowledges sole responsibility for and assumes all risk arising from Buyer’s use of any third-party resources.

  1. CHANGES TO THIS AGREEMENT

12.1. These Terms and Conditions may be updated from time to time. Accordingly, you should check the Terms and Conditions for updates. You can determine when the Terms and Conditions were last revised by referring to the review date at the top of this document.

12.2. Each time you purchase, claim and/or mint NFTs, You signify Your acceptance of the then-current Terms and Conditions.

12.3. Any changes in these Terms and Conditions take effect upon posting.

12.4. You understand and agree that We may discontinue or restrict Your use of our Website at any time for any or no reason with or without notice and without reference to You.

  1. MISCELLANEOUS

13.1. Any reference to statute, enactment, order or regulation or other similar instrument made in this Agreement, shall be construed as a reference to such instrument as it is in force for the time being taking into account any amendment, extension, application, consolidation or re-enactment.

13.2. If any provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable in any respect, it shall to the extent of such invalidity, illegality or unenforceability be deemed to be severed and removed and all remaining terms shall remain in full force and effect.

13.3. The Seller shall not bear any liability for any failure or delay in the performance of its obligations under this Agreement if such delay or failure to perform is due to any “Force Majeure”. For the purpose of this Agreement, Force Majeure shall be defined as any act, omissions, cause or circumstance beyond the reasonable control of the Seller, this to include without any limitations: acts of god, war, national emergency, protests or rebellion, civil commotion, riots or strikes, earthquake, flood, drought, epidemic, fire, explosion, act of terrorism, or any other act ordered by any government, council or constituted body.

13.4. Any waiver of any breach of this Agreement by the Seller, or any default, under any provision of the Agreement by the Buyer, shall only be valid if agreed in writing. Any further or subsequent breach or default by the Buyer whether similar or otherwise shall in no way affect this Agreement. Similarly, any failure or delay, by either Party to this Agreement, to insist upon strict performance of any of the provisions of the Agreement shall not be construed as a waiver of any of its rights, under this Agreement.

13.5. These Terms and Conditions contains all the terms which the Buyer and Seller have agreed to in relation to the purchase/sale of NFTs and the Terms and Conditions supersede any prior written or oral content, agreement, representations or undertakings between them. It is acknowledged by the Purchaser that he has not acted, relied on, or been induced to enter into the purchase of NFTs by reason of any representations made by or on behalf of the Seller.

13.6. The Seller reserves the right to assign its rights and duties under these Terms and Conditions to any person at any time without notice to you, nor will we contact you or seek your approval on any such assignment.

13.7. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail. You agree that you can print the communications for your records. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. 

  1. NO RIGHT OF WITHDRAWAL

14.1. Article L.221-28 2°, 11° and 13° of the Consumer Code provides that: "the right of withdrawal may not be exercised for contracts: 

  • 2° for the supply of goods or services whose price depends on fluctuations in the financial market beyond the control of the professional and likely to occur during the withdrawal period, 

  • 11° concluded during a public auction, 

  • 13° for the supply of digital content not provided on a tangible medium, the performance of which has begun after the consumer has given his prior express consent and expressly waived his right of withdrawal and, if the contract subjects the consumer to an obligation to pay, where:

    • he has given his prior express consent for the performance of the contract to begin before the expiry of the withdrawal period; and

    • he has acknowledged that he will lose his right of withdrawal; and

    • the professional has provided confirmation of the consumer's agreement in accordance with the provisions of the second paragraph of Article L. 221-13”.

14.2. PURSUANT TO SUCH PROVISION, THE USER EXPRESSLY ACKNOWLEDGES AND ACCEPTS THAT THE RIGHT OF WITHDRAWAL CANNOT BE EXERCISED FOR TRANSACTIONS INVOLVING NFTS. THE USER WISHES TO HAVE THE TRANSACTIONS EXECUTED IMMEDIATELY. THEREFORE, THE USER EXPRESSLY AGREES IN ADVANCE AND EXPRESSLY WAIVES HIS RIGHT OF WITHDRAWAL. 

  1. DATA PROTECTION AND INTELLECTUAL PROPERTY

You acknowledge that we may process personal data in relation to you and other associated persons, in connection with these Terms and Conditions, or the Access Rights. Accordingly, you represent and warrant that your disclosure to us of any personal data relating to individuals other than yourself was or will be made in accordance with all applicable data protection and data privacy laws, and those data are accurate, up to date and relevant when disclosed. 

You acknowledge that using these services does not give you ownership of any intellectual property rights in the content you access. 

As a Content Creator or User, the content you submit must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so (including by way of any available exceptions or limitations to copyright or related rights provided for in European Union law). In addition, you must not use the service to distribute to the public illegal content. 

  1. MEDIATION 

In accordance with the provisions of articles L612-1 et seq. of the French Consumer Code, any User who is a consumer within the meaning of the said code may refer, free of charge, to the services of a consumer mediator with a view to the amicable resolution of a dispute between him/her and MAINBOT.

The body designated by MAINBOT for this purpose is the Autorité des Marchés Financiers (AMF).

In order to refer to this organization, the User may:

  1. go to the AMF website: https://www.amf-france.org/fr/le-mediateur-de-lamf/votre-dossier-de-mediation/vous-voulez-deposer-une-demande-de-mediation and fill out the online form with supporting documents;

  2. or send your complaint by mail to the address:

Mediator of the Autorité des Marchés Financiers 

17, place de la Bourse - 75082 Paris Cedex 02 

Tel : 01 53 45 60 00

A dispute can only be examined if:

  • the User justifies having tried, beforehand, to resolve his dispute directly with MAINBOT by a written complaint expressly identified as such detailing the reasons for his complaint as well as all the information useful to MAINBOT to understand, study and appreciate the causes, consequences and incidences of this complaint, and addressed by e-mail; 

  • the request is not manifestly unfounded or abusive;

  • the dispute has not been previously reviewed or is not under review by another mediator or by a court;

  • the User shall submit his request to the mediator within a maximum period of one year from the date of his written complaint to MAINBOT;

  • the dispute falls within the jurisdiction of the mediator.

The User will be informed by the mediator of the consequences of his request for mediation.

In addition, the User is informed that in accordance with Article 14 of Regulation (EU) No. 524/2013, the European Commission has set up an Online Dispute Resolution platform, facilitating the independent settlement by extrajudicial means of online disputes between consumers and professionals in the European Union. This platform is accessible at the following link: https://webgate.ec.europa.eu/odr/. 

  1. LAW AND JURISDICTION

THE PRESENT TERMS AND CONDITIONS ARE WRITTEN IN ENGLISH. IN THE EVENT THAT THEY ARE TRANSLATED INTO ONE OR MORE FOREIGN LANGUAGES, ONLY THE ENGLISH TEXT WILL BE DEEMED AUTHENTIC IN THE EVENT OF A DISPUTE.

THIS WEBSITE IS GOVERNED BY FRENCH LAW. THE PROPOSED CONTENTS ARE THUS IN CONFORMITY WITH THE FRENCH LEGISLATION IN FORCE. THE WEBSITE EDITOR CANNOT BE HELD RESPONSIBLE IN THE EVENT OF NON-COMPLIANCE WITH THE LEGISLATION OF THE COUNTRY OF CONNECTION.

THESE TERMS AND CONDITIONS AND THE RELATIONSHIP BETWEEN MAINBOT AND THE BUYER ARE ALSO GOVERNED BY FRENCH LAW. THIS IS THE CASE FOR THE SUBSTANTIVE AND FORMAL RULES, NOTWITHSTANDING THE PLACES OF PERFORMANCE OF THE SUBSTANTIAL OR ACCESSORY OBLIGATIONS. 

IN THE EVENT OF A DISPUTE AS TO THE INTERPRETATION OR EXECUTION OF THE TERMS AND CONDITIONS, THE PARTIES SHALL MAKE THEIR BEST EFFORTS TO FIND AN AMICABLE RESOLUTION. IN THE ABSENCE OF AN AMICABLE RESOLUTION, THE FRENCH COURTS SHALL HAVE SOLE JURISDICTION TO HEAR ANY DISPUTE ARISING FROM THE APPLICATION OF THESE TERMS AND CONDITIONS OR RESULTING DIRECTLY OR INDIRECTLY FROM THE USE OF THE WEBSITE. THE REFERENCE LANGUAGE FOR THE SETTLEMENT OF ANY DISPUTES IS FRENCH.

THESE STIPULATIONS RELATING TO THE APPLICABLE LAW AND THE COMPETENT JURISDICTIONS ARE APPLICABLE SUBJECT TO THE IMPERATIVE PROVISIONS WHICH WOULD HAVE VOCATION TO APPLY TO THE BUYER IN HIS CAPACITY OF CONSUMER WITHIN THE MEANING OF THE CODE OF CONSUMPTION IF NECESSARY (IN PARTICULAR ARTICLE R.631-3 OF THE CODE OF CONSUMPTION).

IF YOU ARE NOT A CONSUMMER IN MEANING OF THE FRENCH CONSUMER CODE, YOU ACKNOWLEDGE AND ACCEPT THAT IN THE EVENT OF A CLAIM OR DISPUTE, THEY SHALL BE SUBMITTED TO THE EXCLUSIVE JURISDICTION OF THE PARIS COMMERCIAL COURT.

  1. CONTACT US

If you have any question about these Terms and Conditions, please contact: legal@mainbot.me 

  1. PRE-CONTRACTUAL INFORMATION - PURCHASER ACCEPTANCE

The Purchaser acknowledges having been informed, prior to the purchase, in a clear and comprehensible manner, by means of the availability of these Terms and Conditions and in accordance with the provisions of Article L 221-5 of the French Consumer Code, as to:

 

  • the essential characteristics of the NFTs, taking into account the communication medium used and the service/goods involved; 

  • the price of the NFTs and related costs;

  • in the absence of immediate execution of the contract, on the date or time by which the Seller undertakes to provide the services/goods ordered;

  • on the identity of the Seller, its postal, and electronic contact details, as well as its activities;

  • on the legal and contractual guarantees and their methods of implementation; 

  • on the possibility of resorting to a conventional mediation in the event of litigation; 

  • on the absence of right of withdrawal given the context of the sale;  

  • the fact that a Purchaser places an order on the Website implies full acceptance of these Terms and Conditions and the obligation to pay for the services/goods ordered, which is expressly recognized by the Purchaser, who waives, in particular, the right to rely on any contradictory document that would be unenforceable against the Seller.

Annex 1

NFTs collections

The following chart contains the NFTs collections covered by the present Terms and Conditions:

Nature of the NFTs collection

Number of NFTs within this batch

Blockchain

Specificities of the collection

Date of launch and duration 

Digital lands in The Winkyverse

1000 

Ethereum

Details and price specified on the Website. 

November 22th, 2022 within the limits of available stocks