GENERAL TERMS AND CONDITIONS OF SALE
1.1 The terms and expressions listed hereunder shall have the meaning indicated below, being understood that terms defined in the singular form are to be considered defined even in the plural form and viceversa:
- Artworks: the artworks associated to the NFTs.
- Brand Cross: Brand-Cross S.r.l., having its registered office at Milano, Via Medici 13, Italy, Italian tax registration number and Italian VAT number 09098450969.
- Consumer: any natural person who is acting for purposes which are outside their trade, business, craft or profession.
- Customer: any individual (natural person or legal person) purchasing one or more NFTs in the Online Store, accepting the General Terms and Conditions and TMP Group’s terms of service.
- General Terms and Conditions: these general terms and conditions of sale.
- NFTs: the cryptographic and non-fungible digital tokens, based on blockchain technology, representing title to specific rights embedded in the NFTs (in particular to the Artworks and the Utilities), as well as being the NFTs themselves unique digital products, sold through the Online Store.
- NFTs’ T&C: the terms and conditions – embedded or referred to in the NFTs’ metadata – which govern the rights and utilities attributed to the Customers upon purchase of the NFTs.
- Online Store: the virtual store, managed by TMP Group and accessible via the URL www.musanft.io, through which it is possible to purchase the NFTs.
- Order Confirmation: the e-mail by means of which TMP Group communicates to the Customers the acceptance of any Orders.
- Orders: the purchase orders of the NFTs placed by the Customers, in compliance with the General Terms and Conditions and following the procedure set out under art. 6.
- Parties: jointly, Brand Cross and the Customer.
- Price: the price of sale of the NFTs as indicated in the Online Store.
- Profile: the area of the Online Store where Customers can, after authentication: (i) review and modify their personal data; (ii) insert the address of the Wallet where the NFTs must be transferred; (iii) view previous Orders; and (iv) access any other specific functions relating to their activity in the Online Store.
- Sale and Purchase Agreements: the agreements for the sale and purchase of the NFTs executed, pursuant to art. 3, between Brand Cross and the Customers through the Online Store.
- Trader: any natural or legal person who is acting for purposes relating to their trade, business, craft or profession.
- TMP Group: TMP Group S.p.A., having its registered office at Sambuca di Sicilia (AG), via Matteotti 8, Italy, Italian tax registration number and Italian VAT number 02690730847.
- Utilities: the rewards and services which can be redeemed and accessed by the Customer further to the purchase of the NFTs (if any).
- Wallet: a cryptocurrencies wallet which allows to store the private keys of the tokens, including the NFTs, and allows to send, receive and spend cryptocurrencies.
- Subject matter
2.1 The General Terms and Conditions apply to all the Sale and Purchase Agreements and form an essential part thereof.
2.2 Brand Cross reserves the right to modify the General Terms and Conditions at any time, being understood that any such modification shall not be retroactive and that the version of the General Terms and Conditions to be applied to the Sale and Purchase Agreements shall be the one accepted by the Customers at the time the Orders are placed.
2.3 The Online Store is managed by TMP Group which technically intermediates the sale between Brand Cross and Customers. The use of the Online Store is governed by TMP Group’s terms of service which are independent from these General Terms and Conditions. In case of discrepancies between these General Terms and Conditions and TMP Group’s terms of service in connection with the sale of the NFTs and Brand Cross’ obligations, these General Terms and Conditions shall prevail.
Brand Cross shall not be liable for any malfunctioning of the Online Store which is not directly attributable to Brand Cross.
2.4 The Online Store is dedicated to retail sales and therefore to the purchase by Consumers. In case of Sale and Purchase Agreement entered into between Brand Cross and a Trader, these General Terms and Conditions shall apply but, by way of derogation to the same:
- the Trader shall not be granted with any the right of withdrawal pursuant to article 9 (if any);
- the Trader shall not benefit from the warranty for defective products pursuant to article 10 which is reserved to the Consumers;
- the Trader shall not be granted with any other right or protection provided for in these General Terms and Conditions in favour of the Consumers, which arise from mandatory provisions of law;
- the Sale and Purchase Agreements shall be exclusively governed by the Italian law.
2.5 In order to make a purchase through the Online Store, the Customer shall have reached the legal age and own the legal ability to act, which the Customer represents to own by delivering an Order.
- Execution of the Sale and Purchase Agreements
3.1 The execution of the Sale and Purchase Agreements shall take place in accordance with the terms of service made available by TMP Group which owns and manages the Online Store.
3.2 The Sale and Purchase Agreements enter into between the Parties when Customers receive the Order Confirmation. Should the Customers not receive the Order Confirmation within the term indicated under art. 3.1, the relevant Order shall be deemed to be rejected and, therefore, not effective.
3.3 With the Order Confirmation, the Customers will receive a copy of these General Terms and Conditions, a summary of the Order along with specific indication of the Price and the relevant taxes and a description of the ordered NFTs.
3.4 By placing the Orders, Customers declare to:
(i) have read all the instructions which refer to the methods of purchase of the NFTs;
(ii) accept the General Terms and Conditions as well as the terms of service of the Online Store made available by TMP Group;
(iii) accept the NFTs’ T&C concerning the NFTs which the Customers wish to purchase;
as well as to have read all the additional information available on the Online Store, including the information accessible through links.
- Features of the NFTs
4.1 For each NFT published in the Online Store, Brand Cross indicates whether the NFT is available or has already been sold.
4.2 The type of NFTs published on the Online Store and their availability may vary at any time without implying any liability for Brand Cross towards its Customers.
4.3 The purchase of the NFTs implies:
(i) the ownership by the Customer of the purchased NFT;
(ii) the grant, by Brand Cross to the Customer, of certain limited rights in and to the Artworks, as indicated in the NFTs’ T&C;
(iii) the grant, by Brand Cross to the Customer, of the Utilities indicated in the NFTs’ T&C (if any).
4.4 In order to enter into a Sale and Purchase Agreement, the Customers shall own a Profile on the Online Store. Customers may see the NFTs they own through their Profiles. Upon completion of the purchase of the NFTs, the relevant private keys shall be kept by TMP Group on TMP Group’s Wallet on behalf of the Customers. In case Customers own personal Wallets and wish to transfer to such personal Wallets the NFTs they have purchased, Customers shall connect their personal Wallets to their Profile and execute the relevant transfer. Any relevant gas fees shall be borne by Customers. Brand Cross shall have no liability in connection with the use and functioning of the Customers’ Wallets and of any other tool or platform used by the Customers (different than those provided for by Brand Cross) and shall have no access to any private key thereof.
- Price and transfer costs – Taxes and duties
5.1 The Price is indicated in Euro comprehensive of VAT. The applicable Price is the one published in the Online Store at the time Customers placed the relevant Order.
5.2 Without prejudice to the above paragraph, Brand Cross may refuse an Order Confirmation if the Order contains an incorrect Price. If during the selection process of the NFTs, the Customer finds that the Price of one or more NFTs is clearly lower than the one normally applied, net of any discounts or promotions in force, the Customer is requested not to send the Order and report it to Brand Cross.
- Placement of the Orders
6.1 In order to place an Order, Customers shall register on the Online Store by entering all the mandatory data, choosing a password which is requested to send the Orders and to access their own Profile. Customers may – but have no obligation to – connect their accounts to their Wallet.
6.2 Customers may purchase the NFTs by selecting the them in the designated section of the Online Store and adding them to the “cart”. Once the data relating to the selected NFTs and the transfer information is verified, Customers must select a payment method and place the Order.
- Methods of Payment
7.1 Customers may pay the Price and any additional costs by using the payment methods indicated by TMP Group on the Online Store. In the event it is not possible to charge the amounts owed by Customers, it will not be possible to deliver the Order which will be considered cancelled.
7.2 Customers acknowledge that TMP Group may amend at any time the payment methods available to the Customers, provided that the methods of payment made available to Customers are those published on the Online Store at the time Customers place the relevant Orders.
7.3 If requested by Customers at the time of placing the Orders, Brand Cross shall send an invoice to the Customers. For the issuance of the invoices, the information provided by the Customers shall be deemed to be truthful and correct. No amendment to the invoices shall be possible after the relevant invoice has been issued by Brand Cross.
7.4 Brand Cross will use the information received pursuant to art. 7 exclusively for completing all relevant procedures related to the sale of the NFTs and for the performance of the activities set forth in these General Terms and Conditions.
- Transfer of the NFTs
8.1 Brand Cross is not bound to transfer the NFTs until the payment of the Price is received. Brand Cross undertakes to execute the transfer of the NFTs immediately after the payment confirmation, being understood that the time requested for the actual transfer of the NFTs to either TMP Group’s or Customers’ Wallets (as the case may be, in accordance with the above) may vary depending on the status of the blockchain and network used for the transaction.
8.2 In order to allow Customers to monitor their Orders, the Online Store will issue an Order number which, once entered into the Profile, allows to verify the information related to each Order.
8.3 NFTs are digital items which cannot be physically delivered. In order to obtain the NFTs, Customers shall have the availability of a Wallet where the NFTs can be credited. In the absence of such a Wallet, the NFTs will be kept by TMP Group on behalf of the Customers.
- Exclusion of the right of withdrawal
9.1 The Consumers shall have no right to withdraw from the Sale and Purchase Agreements, being such right of withdrawal excluded in case of:
(i) supply of sealed audio or video recordings or sealed computer software that have been opened after delivery (article 59, par. 1, lett. (i), Italian Legislative Decree 206/2005);
(ii) supply of digital contents (such as NFTs) by means of non-material mediums (such as private keys) if the relevant performance begun with the Consumers’ express agreement and their acceptance that they would lose their right of withdrawal (article 59, par. 1, lett. (o), Italian Legislative Decree 206/2005).
10.1 This article 10 exclusively applies to Customers who are Consumers. Customers who are not Consumers shall not be entitled to avail of the remedies under this article 10 but may avail themselves of any other remedies provided for by the applicable law.
10.2 Brand Cross warrants that the NFTs and the Utilities will have no lack of conformities and will therefore comply with the:
(i) subjective requirements for conformity (be of the description, quantity and quality indicated in the Online Store; possess the functionality, compatibility, interoperability and other features, as indicated in the General Terms and Conditions; be fit for any particular purpose for which the Consumer made known to Brand Cross before the execution of the Sale and Purchase Agreement and in respect of which Brand Cross has given acceptance; be supplied with all accessories, instructions, and customer assistance as required by the General Terms and Conditions; be updated as stipulated by the Sale and Purchase Agreement);
(ii) objective requirements for conformity (be fit for the purposes for which non-fungible tokens or utilities of the same type would normally be used; be of the quantity and possess the qualities and performance features, including in relation to functionality, compatibility, accessibility, continuity and security, normal for non-fungible tokens and utilities of the same type and which the Consumers may reasonably expect, given their nature and taking into account any public statement made by or on behalf of Brand Cross, unless the latter shows that it was not, and could not reasonably have been, aware of the public statement in question, by the time of conclusion of the Sale and Purchase Agreement, the public statement had been corrected in the same way as, or in a way comparable to how, it had been made, or the decision to acquire the NFTs or Utilities could not have been influenced by the public statement).
10.3 It is agreed that there shall be no lack of conformity if, at the time of the conclusion of the Sale and Purchase Agreement, the Consumer was specifically informed that a particular characteristic of the NFTs or Utilities was deviating from the objective requirements for conformity laid down above and the Consumer expressly and separately accepted that deviation when concluding the Sale and Purchase Agreement.
10.4 Any lack of conformity resulting from the incorrect integration of the NFTs or Utilities into the Consumer’s digital environment shall be regarded as an actual lack of conformity if:
(i) the NFTs or Utilities were integrated by Brand Cross or under the latter’s responsibility; or
(ii) the NFTs or Utilities were intended to be integrated by the Consumer and the incorrect integration was due to shortcomings in the integration instructions provided by Brand Cross.
10.5 Brand Cross is liable in the event of lack of conformity relating to the NFTs or Utilities which become apparent upon delivery of the NFTs or during the period of time during which le Utilities are provided to the Consumer (if any). The action to claim defects, provided that they have not been maliciously concealed by Brand Cross, is in any case time-barred within 26 months from the delivery of the NFTs or the last act of provision of the or Utilities (if any).
10.6 The burden of proof of the conformity of the NFTs and Utilities for the lacks of conformity that occur during the period referred to in Article 10.5 above is on Brand Cross, unless Brand Cross demonstrates that the Consumer’s digital environment is not compatible with the technical requirements of the NFTs or Utilities and that it has informed the Consumer of prior to the acceptance of the General Terms and Conditions. The Consumer shall cooperate with Brand Cross, to the extent reasonably possible and necessary, limited to the least intrusive means for the Consumer, in order to ascertain whether the cause of the lack of conformity lies in the Consumer’s digital environment. In case of non-cooperation and if Brand Cross has informed the Consumer of the requirements inherent to the necessary digital environment prior to acceptance of the General Terms and Conditions, the burden of proof of the existence of the conformity defect shall be on the Consumer.
10.7 In the event of the existence of a lack of conformity, Consumers are entitled to obtain the bring into conformity, to receive a proportionate reduction in the price or to terminate the Sale and Purchase Agreement.
10.8 Consumers are entitled to the bring into conformity of the NFTs or Utilities, unless this is impossible or imposes costs on Brand Cross which would be disproportionate, taking into account all the circumstances of the case and, in particular:
(i) the value that the NFTs or Utilities would have if there were no lack of conformity; and
(ii) the significance of the lack of conformity.
Brand Cross agrees to bring the NFTs or Utilities into conformity within a reasonable period of time from the time it was informed by the Consumer of the lack of conformity, without cost and without significant inconvenience to the Consumer, taking into account the nature of the NFTs or Utilities and the use that the Consumer intended to make of them.
10.9 Consumers are entitled to a proportionate reduction in the price or to termination of the Sale and Purchase Agreement, in any of the following cases:
(i) the remedy of bringing into conformity is impossible or disproportionate;
(ii) Brand Cross failed to restore conformity in accordance with these General Terms and Conditions;
(iii) a lack of conformity appears despite Brand Cross’s attempt to restore conformity;
(iv) the lack of conformity is of such a serious as to justify an immediate price reduction or termination of the Sale and Purchase Agreement; or
(v) Brand Cross has declared, or it is equally clear from the circumstances, that it will not restore conformity within a reasonable period of time or without significant inconvenience to the Consumer.
10.10 The price reduction is proportional to the decrease in value of the NFTs and Utilities provided to the Consumer compared to the value they would have had if there was no lack of conformity. The price reduction applies to the period of time that the NFTs and Utilities were not compliant.
10.11 Consumers are not entitled to terminate the Sale and Purchase Agreement if the lack of conformity is minor. The burden of proof that the lack of conformity is minor is on Brand Cross.
10.12 Upon termination of the Sale and Purchase Agreement, Brand Cross may prevent any further use of the Utilities by the Consumer, without prejudice to the foregoing. Following the termination of the Sale and Purchase Agreement, the Consumer will refrain from using the Utilities.
10.13 Where applicable, it is specified that Consumers shall not be obliged to pay for the use of the NFTs and Utilities during the period prior to the termination of the Sale and Purchase Agreement during which the NFTs or Utilities suffered a lack of conformity.
10.14 Any reimbursement due to the Consumers will be made without undue delay and, in any event, within 14 days of the day on which Brand Cross is informed of the Consumer’s decision to exercise the right to a price reduction or termination of the Sale and Purchase Agreement. Brand Cross shall carry out the reimbursement using the same means of payment used by the Consumer to pay for the NFTs, unless the Consumer expressly consents to the use of another means and does not incur any fees as a result of such reimbursement. Brand Cross shall not impose any fees on the Consumer in respect with the reimbursement.
10.15 The remedies provided for in this article 10 also extend to cases of restrictions of use of the NFTs or Utilities resulting from the infringement of third party rights, in particular intellectual property rights, without prejudice to other remedies provided for by the applicable law.
- Errors and inaccuracies in the Online Store
12.1 The Online Store is constantly checked in order to prevent the creation of errors or inaccuracies. However, the Online Store may at any time contain errors, inaccuracies or oversights.
12.2 Therefore, any potential errors, inaccuracies or oversights which the Online Store may contain, including after the placement of an Order, will be corrected upon identification of the same without any prior notice to the Customers.
- Applicable law and disputes
13.1 The General Terms and Conditions and the Sale and Purchase Agreements are governed by the Italian law, without prejudice to the rights attributed to Consumers by mandatory legal provisions in force in their country of residence.
13.2 Consumers have the right to access the European Online Dispute Resolution platform. For further information on the European ODR Platform or to initiate, through the latter, an alternative dispute resolution procedure for a dispute relating to this contract, access the following link: http://ec.europa.eu/odr and use Brand Cross’s email address [insert].
13.3 Any legal disputes shall be referred to the courts of the place of residence or domicile of the Consumer.