KOLLEKT SERVICE PLATFORM – CREATOR TERMS

Latest update 19.4.2023.

This Kollekt service (hereinafter “Service”) is provided by Kollekt Group Oy (business ID: 3336449-2 / address: c/o WA Yhtiöt Oy Äyritie 12 C 01510 Vantaa, Finland), which is a limited liability company established under Finnish law (hereinafter together “we” or “Company”).

The Service may be used by companies (hereinafter “Creator”) that make available their blockchain-based digital collectibles (hereinafter “Collectible” or “Collectibles”) to end customers (hereinafter “Collector”) and by the Collectors themselves for the utilization of the Collectibles in the Service.

Please note that these Creator terms govern the contractual relationship between the Company and the Creator in regard to the Creator’s use of the Service (hereinafter “Agreement”). The contractual relationship between the Company and the Collector shall always be subject to Collector terms, which are available here: Collector terms

Please also note that the Company itself only provides the Service in which the Collectors and the Creators may trade, retain and use the Collectibles created by the Creators. Hence, the Company shall not be liable for anything related to the Collectibles, apart for the transfer of the Collectible in accordance with the Agreement.

1. GENERAL

1.1. By using this Service and/or registering into the Service, the Creator and the Company conclude a legally binding agreement, in the form of this Agreement, which governs the use of the Service.

1.2. The Company reserves the right to unilaterally change the Agreement. The Company shall notify the Creator through email or the Service of such changes. The changes take effect 14 days after the notification. By using the Service after the changes, the Creator accepts the changes as legally binding. If the Creator does not agree to the changes in fees, the Creator must notify the Company about the non-acceptance in written form, after which the Creator’s right to use the Service ceases and the non-acceptance shall result in the automatic termination of this Agreement.

1.3. The right to use the Service is contingent upon the following: (i) the Creator is legally competent to use the Service, and (ii) the Creator is not prohibited from using the Service under any applicable law.

2. CREATING AN ACCOUNT

2.1. To be able to use the Service, the Creator has to register into the Service and create an account in the Service (hereinafter “Account”).

2.2. While using the Account, the Creator shall always comply with this Agreement, good business practices and the applicable legislation.

2.3. The Creator is solely responsible for all activities performed through the Account and for the safe use of the password, maintenance, confidentiality and all other such matters in regard to their Account. If the Creator becomes aware that someone else has used the Creator’s Account, the Creator must notify us immediately of the matter through email at security@kollekt.io.

3. THE COMPANY’S ROLE AS AN AGENT IN THE SERVICE

3.1. The Service is designed to facilitate a digital platform for the publication of Collectibles and a marketplace for the Creators and the Collectors. In the Service, the Company only acts as a facilitator of a digital platform and as an agent of the parties, without taking part in the actual publication and sale of the Collectible(s) between the Creator and the Collectors (hereinafter “End Service”). The Creator understands and accepts the Company’s, the Collector’s, and the Creator’s roles in the Service and the End Service, and the Creator hereby specifically authorizes the Company to act as its agent in transmitting and accepting payments and transferring Collectibles.

3.2. In connection to the End Service, the Company does not: (i) accept or charge payments from the Collectors for the End Service provided by the Creator to the Collectors, (ii) take part in the provision of the End Service provided by the Creator to the Collectors, or (iii) take part in the acceptance and conclusion of any agreement for the performance of the End Service provided by the Creator to the Collectors even if the Company were to provide an agreement template between the Creator and the Collector.

3.3. Where, in connection to the End Service, the Creator charges a fee or a payment of any kind from the Collector, the Creator shall in writing independently identify and describe to the Collector the End Service offered and the relevant details of the Creator as the service provider as well as comply with any other applicable legal requirements.

3.4. The payment services available in the Service, which enable payments in the End Service between the Creator and the Collectors, are provided by Stripe Inc. Therefore, the Company does not take any part in the payment services in the Service or the End Service. All the fees of the Service and the End Service are divided and allocated by Stripe Inc. The Creator understands and agrees that it may be required to separately conclude an agreement with Stripe Inc. to be able to use the Service and provide the End Service as well as make and accept payments in the Service and the End Service.

3.5. As an agent, the Company assumes no responsibility or liability for any actions or inactions that the Creator or the Collector may or may not take. The Creator and the Collector are solely responsible for the use of the Service and the possible consequences of using the Service.

4. NATURE OF THE COLLECTIBLES

4.1. From a technical perspective, the Collectibles are non-fungible tokens based on blockchain technology (e.g. Ethereum and Solana). The blockchains supported by the Collectibles may vary from time to time based on the sole discretion of the Company.

4.2. From a practical perspective, the Collectibles are unique or limited edition copy of a virtual item as determined by the Creator. Hence, the Collectibles in the Service vary in nature depending on the sole discretion of the Creator. Collectibles can be for example digital representations of admission tickets to an event, access rights, images, videos or sounds.

4.3. Given that the Collectibles are based on blockchain technology, it is emphasized that the Service is solely intended for the utilization of Collectibles that are legally characterized as commodities; as per applicable legislation, non-fungible tokens are legally characterized as commodities. The Company has specifically agreed with all of the Creators that the Service may not be used for any other digital asset than Collectibles (e.g. cryptocurrency or securities).

4.4. It is entirely the responsibility of the Creator to ensure that all of its Collectibles are legally characterized as commodities. The Creator acknowledges and accepts that the Company is not liable for anything related to the legal nature of any Collectible.

5. THE SERVICE

5.1. The Service consists of the following elements for the Creator, which the Creator may use in the End Service:

5.1.1. the Creator may create Collectibles,

5.1.2. the Creator may sell and distribute Collectibles to Collectors,

5.1.3. the Service may be used to transfer Collectibles between the users (meaning the Creators and the Collectors),

5.1.4. an easy-to-use payment services that facilitate the payments between the users (meaning the Creators and the Collectors),

5.1.5. a secondary market for the Collectibles in which the Collectors may trade Collectibles between themselves,

5.1.6. a so-called holder’s area, as is applicable from time to time, and

5.1.7. the Creator may create user/owner areas that are exclusive to Collectible owners (meaning Collectors owning a specific Collectible).

5.2. When a Collectible is sold by the Creator to a Collector, the Creator shall decide the purchase price of the Collectible and, once a Collectible is sold, receive the purchase price of the Collectible minus a platform fee as per this price list.

5.3. The Creator has a right to implement a certain royalty fee per Collectible whereafter a Collector shall pay to the Creator the royalty fee of the Collectible price for a Collectible that is sold by the Collector to another Collector. If the Creator wants to implement the royalty fee, the Creator shall agree on the matter with the Company separately in writing. The Company shall make each royalty fee visible in the Service.

5.4. Creation of Collectibles requires the Creator to provide the Company with information as is required by the Company in the Service from time to time. The Company may in its sole discretion reject any Collectible creation, if the creation would or most likely could, as per the sole discretion of the Company, involve other digital assets, such as cryptocurrencies or securities, than Collectibles.

5.5. The Service utilizes the services of subcontractors, whereby the Creator understands and agrees that it may be required to separately accept an agreement of the Company’s subcontractor to be able to use the Service (e.g. such an agreement can be a standard agreement of the payment services provider in the Service).

5.6. The Parties may subsequently agree in writing on additional services.

6. PRICING

6.1. The Company has a right to charge the Creator a fee for using the Service in accordance with the price list in force at a given time; the price list is displayed here: price list.

6.2. The price list may be changed as the rest of this Agreement.

6.3. The Company is not responsible for any fees or commissions charged by third parties or technologies (e.g. blockchain related transaction fees).

7. RIGHTS AND RESPONSIBILITIES OF THE CREATOR

7.1. Solely the Creator shall have the right to use the Service, whereby when using the Service, the Creator shall always be principal, and not an agent acting on behalf of a third party, in the transactions related to the Service, unless otherwise is expressly agreed in writing between the Company and the Creator.

7.2. The Creator may create, issue, sell, purchase or in any other way use only Collectibles that are legally characterized as commodities. The Creator shall not create, issue, sell, purchase or in any other way use any other digital assets, such as cryptocurrencies and securities, in the Service than Collectibles that are legally characterized as commodities.

7.3. The Creator shall be solely responsible for ensuring that its Collectibles are legally characterized as commodities and no other digital assets, such as cryptocurrencies and securities. If the Creator uses other digital assets, such as cryptocurrencies and securities, in the Service, the Creator shall have an obligation to fully reimburse the Company with any and all damages, losses and other similar expenses incurred by the Company as a result of the Creator’s actions.

7.4. The Creator shall be solely responsible for its own reporting obligations in connection to the Service (e.g. tax reporting).

7.5. The Creator has an obligation to truthfully provide the Company with information required for registration into the Service.

7.6. The Creator agrees not to, and shall not permit any third party to: (i) redistribute, sell, lease, lend or rent the Service, (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service, (iii) copy (except for back-up purposes), modify, adapt, alter, improve or create derivative works of the Service or any part thereof, (iv) use the Company’s name, logo or trademarks in any other context except for using the Service and without our prior written consent, (v) use the Service to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible or inappropriate purpose, or in any manner that breaches this Agreement, and/or (vi) engage in any activity that interferes with or disrupts the Service.

7.7. In connection to the use of the Service, the Creator is solely responsible for the electronic devices, communication devices and other such devices and matters such as hardware condition, internet connection, antivirus, backup, and other similar matters.

7.8. The Creator agrees to use the Service only for the purposes permitted by the Agreement and any applicable laws, regulations and generally accepted policies and guidelines in the relevant jurisdiction.

7.9. The Creator agrees not to take up any actions that disturb or in any other way hinder the Service or the Company’s servers or networks.

7.10. The Service may contain links to third party websites. When the Creator visits third party websites, the Creator does so on its own responsibility and risk.

7.11. If the Creator does not comply with this Agreement, the Company may terminate the Agreement with immediate legal effect, revoke the Account of the Creator and implement any other similar procedure.

8. RIGHTS AND RESPONSIBILITIES OF THE COMPANY

8.1. The Company shall not be obliged to provide the Creator with assistance in ensuring the Creator’s compliance with applicable laws (e.g. tax reporting).

8.2. The Company shall have a right to cancel any Collectible creation, issuance, trade or another similar action if it detects or suspects, at the sole discretion of the Company, that the Creator uses or may use the Service for illegal activities or with improper intent or for the utilization of other digital assets, such as cryptocurrencies or securities, than Collectibles (that are legally characterized as commodities).

8.3. The Company shall have a right to stop offering the Service to the Creator if it detects or suspects, at the sole discretion of the Company, that the Creator uses or may use the Service for illegal activities or with improper intent or for the utilization of other digital assets, such as cryptocurrencies or securities, than Collectibles (that are legally characterized as commodities).

8.4. The Company has the right to use the co-operation between the Creator and the Company in its own marketing and as a reference, in accordance with good practice.

8.5. The Company is not responsible for the availability, redemption, marketing or any related obligations of the Service or liabilities, errors, reliability, damages, or any other matters related to the Service. The Company is also not responsible for the use, obstruction, or content of the Service, nor for the actions of the Creator in the Service.

8.6. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR ACCIDENTS, DAMAGES, LOSSES OR CRIMES RELATED TO THE SERVICE. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT DAMAGES IN ANY MANNER IN CONNECTION WITH THE SERVICE OR THE USE, INFORMATION, AND NOTICES AVAILABLE THROUGH THE SERVICE. THE COMPANY IS ALSO NOT LIABLE FOR ANY DAMAGES OR OTHER DISADVANTAGES THAT MAY BE CAUSED TO THE CREATOR OR THIRD PARTIES BY INCORRECT OR INSUFFICIENT INFORMATION.

8.7. The Company is not responsible for any losses arising from the use of the Service. The Creator agrees to be solely responsible for any failure to comply with its obligations under this Agreement and for their consequences.

8.8. The Company does not express or imply warranties or representations about the operation of features of the Service or the Software, and the Company does not promise that the Service or the Software will function without interruptions or errors. The Company is not responsible for any damages to the Creator, the Collectors or third parties caused by the use, malfunctions, technical defects or malicious software of the Service or third-party links or any other such causes.

8.9. The Company has a right to disable the Service or a part of it due to maintenance, installation, modification, public order and safety, system overload or other similar cause.

8.10. The Company may terminate (permanently or temporarily) or cease the provision of the Service (or any part of it) to the Creator, entirely at the Company’s own discretion and without prior notice. Cause for such termination can be (including, but not limited to) the cessation of the development of the Service (or any part of it) due to it being financially unprofitable to the Company.

8.11. The Service may also enable the Creator to view, access, communicate and interact with third party sources, meaning e.g., third party websites, services and the Service or other content provided by the Company or the Creator. The Company does not assume any responsibility for the content, actions, or practices of, any such sources. The Creator’s interaction with such a source and the Creator’s use of, and reliance upon, any content provided by such sources is at the Creator’s sole discretion and risk.

8.12. The Company is not responsible for the content of the Service or its correctness, except for the content generated by the Company. Thus, the Company is not responsible for e.g., information the Creators or the Collectors disclose through the Service.

8.13. The Company undertakes to continuously update and develop the Service based on feedback.

8.14. The Company has the right to remove material (i) that has been denied or reported by the Company in the Service, or (ii) which, according to the Company is unlawful, contrary to good practice or this Agreement, inappropriate or erroneous, or (iii) harmful to the Company, the Creators or third parties. The Company also has the right to remove material from the Service if the material contains any legally questionable or offensive information or content that is inappropriate for the Company.

9. DATA PROTECTION

9.1. The Company’s data processing activities are described in the Company’s Privacy Notice, which can be found here: Privacy Notice.

10. INDEMNIFICATION

10.1. The Creator shall indemnify and hold harmless the Company, its licensors, service providers, and their respective affiliates, managers, agents and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fee, from third party claims arising from anything related to the Creator’s Collectibles, intellectual property rights in the Collectibles and/or the End Service, unless it relates to a Collector’s receival of the Collectible in accordance with the Agreement.

11. CONFIDENTIALITY

11.1. While fulfilling the purpose of this Agreement, the Creator may come across, or be given, information that is confidential (hereinafter “Confidential Information”). In this regard Confidential Information shall mean and embrace any information, including, but not limited to, any kind of research, business, commercial or technical information and data as well as any apparatus, modules, samples, schematics, prototypes or parts thereof disclosed by or on behalf of the Company to the Creator in connection with fulfilling the purpose of this Agreement, irrespective of the medium in which such information is embedded.

11.2. The same responsibility shall apply to the Company, insofar as it comes across Confidential Information of the Creator.

11.3. A party shall hold the Confidential Information disclosed to it in confidence. The party shall not disclose the Confidential Information to any third party without a prior written consent of the other party. The party acknowledges that the use or any other utilization, directly or indirectly, of the Confidential Information shall be strictly limited to the fulfilling of the purpose of this Agreement.

11.4. The confidentiality obligation of this Agreement shall not apply to information, which as proven by either party:

a) at the time of the disclosure was in the public domain,
b) after disclosure, becomes part of the public domain otherwise than by breach of this Agreement,
c) has already been in the possession of the party prior to the disclosure hereunder,
d) the party receives from a third party,
e) is released for disclosure by prior written consent of the other party,
f) has been independently conceived or developed by a party without exploiting Confidential Information disclosed by or on behalf of the other party, or
g) information, which is required to be disclosed by order of a court of competent jurisdiction, provided, however, that parties notify each other of such requirement prior to disclosure in order for the other party to be able to contest the same and further provided that party uses all reasonable efforts to limit the disclosure and maintain confidentiality to the extent reasonably possible.

12. INTELLECTUAL PROPERTY RIGHTS

12.1. All intellectual property rights (including, but not limited to, rights of patent, trademark, copyright and other intellectual property rights) that existed prior to the conclusion of this Agreement shall remain the sole ownership of that party that owned the intellectual property rights prior to the conclusion of this Agreement (hereinafter “Pre-existing IPR”).

12.2. All intellectual property rights (including, but not limited to, rights of patent, trademark, copyright and other intellectual property rights) created in connection to (i) the Service shall be owned solely by the Company and (ii) the End Service shall be owned solely by the Creator (hereinafter “Developed IPR”). Solely the Creator shall be responsible for ensuring an adequate safeguarding of its own the Developed IPRs (e.g. by use of separate terms and conditions for Collectibles containing Developed IPRs), and the Company shall not have an obligation to ensure that the Collectors, other Creators and third parties do not infringe the Creator’s Developed IPRs.

12.3. When using the Service for Collectible creation, issuing, selling or any kind of similar use, Collectibles containing intellectual property of a third party (including, but not limited to, rights of patent, trademark, copyright and other intellectual property rights), the Creator guarantees that the Creator and the relevant third party have concluded a written agreement on the use of such intellectual property rights and that the Creator is authorized to use these rights in the Service.

12.4. The Creator is solely responsible for ensuring that its Collectibles conform with the applicable intellectual property rights and do not infringe the intellectual property rights of any other Creator or third parties. The Company shall not have an obligation to ensure that the Collectibles in the Service conform with the applicable intellectual property rights and do not infringe the intellectual property rights of any other Creator or third parties.

13. LIMITATION OF LIABILITY

13.1. Where the Company suffers damages as a result of the Creator’s non-compliance with the Creator’s legal obligations, or actions that result in the Company’s non-compliance with the applicable legislation, the Creator shall reimburse the Company in full for the direct damages suffered by the Company.

13.2. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, BUSINESS PARTNERS, LICENSORS OR SERVICE PROVIDERS BE LIABLE TO THE CREATOR OR ANY THIRD PERSON FOR ANY INDIRECT, RELIANCE, CONSEQUENTIAL, COVER, EXEMPLARY, INCIDENTAL, SPECIAL, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF GOODWILL, DAMAGES FOR LOSS, CORRUPTION OR BREACHES OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.3. Notwithstanding anything to the contrary contained herein, the Company’s aggregate liability to the Creator for any cause whatsoever, and regardless of the form of the action, shall at all times be limited to the amount paid, if any, by the Creator to the Company for the Service within the six (6) months preceding the date of bringing a claim.

13.4. Unless otherwise expressly stated by the Company, the Service, material related to the Service and any content, services, or features made available in conjunction with or through the Service are provided “as is” and “as available” without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, the Company and its affiliates disclaim all warranties, statutory, express, or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement of proprietary rights, correctness, accuracy, and reliability.

13.5. Unless otherwise expressly stated by the Company, the Company and its affiliates do not warrant that the Service and any content, or features made available in conjunction with or through the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service and any content, data related to the Creator, services, or features made available in conjunction with or through the Service or the server that makes them available are free of viruses or other harmful components.

13.6. Unless otherwise expressly stated by the Company, the Company and its affiliates do not warrant or make any representations regarding the use or the results of the use of the Service, the Company platform, other Company services, any Company material or any linked sites, in terms of correctness, accuracy, reliability, or otherwise.

13.7. The limitations set forth in this section are not applicable to damage(s):

caused by a breach of the Creator’s obligations under section 7.3 of this Agreement,
caused by breach of the confidentiality clauses (section 11 of this Agreement) and the intellectual property rights (section 12 of this Agreement), and
arising as a direct result of a party’s material breach of its obligations under this Agreement.

13.8. Notwithstanding any aforementioned, the Company shall not be liable towards the Collectors for the Collectibles in any circumstances, unless it relates to the receival of the Collectible in accordance with the Agreement, and the Creator shall do its utmost to ensure that no claims are raised by the Collectors towards the Company.

14. GOVERNING LAW AND DISPUTES

Governing law:

14.1. This Agreement shall be governed by and construed in accordance with the laws of Finland without giving effect to any choice of law principles or provisions thereof.

Disputes:

14.2. It is specifically emphasized that the Company takes no part in the Collectibles and/or the End Service, whereby the Company shall be responsible only for the Service as per this Agreement. Therefore, if the Creator has a dispute with a Collector or another Creator, the Company shall endeavor to the best of its capabilities to help the parties settle their dispute. However, the Company is under no obligation to do so, nor is the Company in any way responsible for the dispute between the Creator and the Collector or another Creator or its resolution.

14.3. All disputes arising out of or in connection with this Agreement between the Company and the Creator shall be exclusively submitted to arbitration in accordance with the Arbitration Rules of the Finnish Central Chamber of Commerce. The place of arbitration shall be Helsinki. The language of the arbitration proceedings shall be English and the arbitral tribunal shall consist of one (1) arbitrator, who shall be appointed by the Board of Arbitration of the Central Chamber of Commerce. Evidence and other material may also be submitted in Finnish or Swedish, if deemed appropriate by the arbitrator.

15. TERM AND TERMINATION

15.1. This Agreement enters into force once the Creator accepts this Agreement via the Service. This Agreement is valid for indefinitely.

15.2. The Creator may terminate this Agreement with immediate effect through the Service. By terminating this Agreement, the Creator is not however exempt from the obligations the Creator has undertaken under this Agreement prior to the termination.

15.3. The Company may terminate this Agreement unilaterally with immediate effect at any time. When the Agreement is terminated by the Company, the Company shall notify the Creator in writing of the termination of the Agreement.

15.4. After termination of this Agreement, the Creator’s Collectibles that are still in the Service will be transferred to a digital wallet address given in writing by the Creator to the Company. The Creator has to notify its digital wallet address to the Company without undue delay of the notice of termination.

15.5. Both Parties understand and agree that the termination of the Agreement has no effect on either Party’s liability concerning infringements of other Party’s or third party’s rights or freedoms.

15.6. Sections 3, 4, 7, 8, 10, 11, 12, 13 and 14 shall prevail and stay in force even after the termination of the Agreement.

16. MISCELLANEOUS

16.1. The Company shall not be responsible for delays or damages caused by events beyond the Company’s control and which the Company cannot be reasonably expected to take into account at the time of signing the Agreement, and the consequences of which the Company could not have reasonably foreseen, avoided or overcome (forcemajeure). Force majeure events include, unless otherwise demonstrated, events such as war or rebellion, epidemics and pandemics, earthquake, flood or comparable natural disaster, public transport, data traffic or power distribution interruptions, import or export bans, strikes, lockouts, boycotts or similar labor struggle actions. Strikes, lockouts, boycotts or comparable labor struggle events, unless otherwise demonstrated, are considered force majeure events even in the case that the Creator is the target of or party to such actions. Force majeure events affecting the Company’s subcontractors are also considered the Company’s force majeure events, if the contracted transaction cannot be made or acquired elsewhere without unreasonable costs or substantial delays. The Company must notify the Creator of force majeure events and their ending without delay.

16.2. The Creator does not have the permission to surrender, transfer or sublicense this Agreement unless the Creator obtains prior written consent from the Company. The Company has a unilateral right to assign, transfer or delegate any or all of its rights and obligations under the Agreement.

16.3. The Creator agrees that if the Company does not exercise or enforce any legal rights under the Agreement (e.g., the right to compensation), it does not imply that the Company formally waives its rights, nevertheless the Company still has the right to exercise its rights.

16.4. The Creator agrees that any cause of action that the Creator may have arisen out of or related to this Agreement must commence within one (1) year after the cause of action accrues, otherwise such cause of action is permanently barred.

16.5. Any notice or document required or permitted to be given under this Agreement shall be given in writing.

16.6. If, by a court decision, any provision of this Agreement is declared invalid or void, then only that invalid or void provision shall be removed from the Agreement, in which case the Agreement shall continue to be valid.