« MERRY CHRISTMAS » THE WORLD'S FIRST SMS
Sale information - « MERRY CHRISTMAS » THE WORLD'S FIRST SMS
Sales conditions - « MERRY CHRISTMAS » THE WORLD'S FIRST SMS
SUMMARY
I- GENERAL TERMS OF SALE – AGUTTES
1A - GUARANTEES
1B - BIDS
1C - BIDS THROUGH LIVE PLATFORM
1D - COLLECTION OF PURCHASES
1E - PAYMENT
1F - PAYMENT DEFAULT
1G - LAW AND JURISDICTION
II- SPECIAL CONDITIONs LINKED TO THE ACQUISITION OF A PHYSICAL WORK ACCOMPANIED BY ITS NON-FUNGIBLE TOKEN (NFT) – AGUTTES
2A - PREAMBLE - TRUSTED THIRD PARTY
2B - MORE DETAILS CONCERNING THE DESCRIPTION OF THE LOT
2C - PRIOR REGISTRATION REQUIRED
2D - IN CASE OF PAYMENT BY CRYPTOCURRENCY
2E - PURCHASE PAYMENT - TRANSFERT OF THE LOT
2F - COSTS OF TRANSFERRING NFTS BETWEEN WALLETS
2G - SALE CONDITIONS UPDATE
III- SMART CONTRACT - VODAFONE
1 - DEFINITION
2 - OWNERSHIP
3 - RIGHTS
4 - RESTRICTIONS
5 - TERMINATION OF THE LICENSE
6 - DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
7 - ASSUMPTION OF RISK
8 - GOVERNING LAW
9 - CHANGES TO THIS AGREEMENT
10 - ELIGIBILITY
11 - INDEMNITY
12 - TAXES
13 - TRANSLATION
14 - SEVERABILITY
15 - CONTACTS US
I- GENERAL TERMS OF SALE - AGUTTES
Purchased lots will become available only after full payment has been made. The sale will be conducted in Euros. In addition to the hammer price, the buyer agrees to pay a buyer’s premium along with any applicable value added tax 20% + VAT amounting to 24% (all taxes included).
The buyers via the live platforms will pay, in addition to the bids and the buyers' fees an additional commission which will be entirely paid back to the platforms (see paragraph: Auctions via live platforms).
1A - GUARANTEES
In accordance with the law, the information given in the catalogue is the responsibility of SAS Claude AGUTTES, taking into account the corrections announced at the time of the presentation of the item in the sale report. Attributions were made according to scientific and artistic knowledge at the time of the auction.
An exhibition prior to the sale permits buyers to establish the conditions of the works offered for sale. However, the photos are worth exhibition, and no claims will be admitted once the award is pronounced. The reproductions in the catalog of works are as faithful as possible, a difference in color or tones is nevertheless possible. The dimensions are only given as an indication.
The text in French is the official text which will be retained in case of dispute. The descriptions in other languages and the indications of dimensions in inches are given only as an indication and cannot be at the origin of a complaint.
The state of conservation of the works is not specified in the catalog, the buyers are therefore obliged to ask for additional photos, videos and / or condition reports. No claim will be accepted concerning possible restorations or accidents once the auction has been pronounced. The condition reports requested from SAS Claude Aguttes and the expert before the sale are given for information only. They do not engage their responsibilities and cannot be the cause of a legal claim. Under no circumstances do they replace the personal examination of the work by the buyer or his representative.
1B - BIDS
The highest and final bidder will be the purchaser.
Should the auctioneer recognize two simultaneous bids on one lot, the lot will be put up for sale again and all those present in the saleroom may participate in this second opportunity to bid.
By placing a bid, the bidders assume the personal responsibility of paying the auction price, increased by the costs to be paid by the buyer and by all taxes or duties due. Except in the case of a written agreement with SAS Claude Aguttes, prior to the sale, mentioning that the bidder is acting as an agent of a third party identified and approved by SAS Claude Aguttes, the bidder is deemed to be acting in his own name. We remind our sellers that it is forbidden to bid directly on the lots belonging to them.
Important :
-BID IN THE ROOM : The normal way to bid is to be physically present in the auction room.
-BID ON THE PHONE : However, we accept to receive bids by telephone from a potential buyer who will have registered before the sale. We cannot be held responsible in particular if the telephone connection is not established, is established late, or in case of error or omission or any technical difficulties relating to the reception of bids by telephone.
-GIVE US YOUR ABSENTEE BID BEFORE THE SALE : We also accept absentee bids submitted prior to the sale. Aguttes won’t be held responsible in case of errors and omissions with the execution of the written bids.
We reserve the right to accept or deny any requests for telephone or absentee bidding.
1C - BIDS THROUGH LIVE PLATFORM
It is also possible to bid live without being physically in the auction room. These bids are carried out on technical platforms allowing remote participation in auctions by electronic means. It is necessary to register beforehand and to ensure that the registration is validated. A bidding limit may be announced at the time of your registration. In this case, it is advisable to give a deposit beforehand directly on the platform in order to be able to bid freely during the sale. The buyer via the platform for live purchases is informed that the fees charged by these platforms will be at his exclusive charge. As an indication, for Drouot digital, a commission of 1.80% including VAT (1.5% excluding VAT) and for Invaluable, a commission of 3% including VAT (2.4% excluding VAT)… Aguttes may not be held responsible for the interruption of a Live service during a sale or for any other malfunction that may prevent a buyer from bidding via a technical platform offering the Live service. The interruption of a Live auction service during the course of a sale does not necessarily justify the auctioneer's stopping the auction.
1D - COLLECTION OF PURCHASES
The lots not claimed on the day of the auction can be retrieved by appointment: please contact the person in charge.
Buyers are advised to collect successful lots by the carrier of their choice as soon as possible to avoid handling and storage costs which will be required before collection of purchase. In case of impossibility to remove the batches due to the current sanitary crisis, these deadlines will exceptionally be extended according to a specific agreement with the sales department concerned.
The auctioneer is not responsible for the storage of purchased lots. From the moment the hammer falls, sold items will become the exclusive responsibility of the buyer. The buyer will be solely responsible for the insurance, SAS Claude AGUTTES assumes no liability for any damage to items which may occur after the hammer falls.
The purchased lots will be delivered to the buyer in person. Should the buyer wish to have his / her lot delivered to a third party the person must have a letter of authorization along with a photocopy of the identity card of the buyer.
1E - PAYMENT
We recommend that buyers pay by credit card or electronic bank transfer.
In compliance with Article L.321-14 of French commercial law, a property sold at auction can be delivered to the buyer only once the auction firm has received payment or complete guarantee of payment.
Legally accepted means of payment include :
• Electronic bank transfer
The exact amount of the invoice from the buyer’s account and indicating the invoice number. (Note : Bank charges are the buyer’s responsibility.)
Account : Claude AGUTTES SAS - IBAN FR76 3078 8009 0002 0586 9000 223 - BIC NSMBFRPPXXX
Banque de Neuflize, 3 avenue Hoche 75008 - Code Banque 30788 – Code guichet 00900
N° compte 02058690002 – Clé RIB 23
• Credit cards : bank fees, which usually range from 1 to 2 %, are the buyer’s responsibility
• American Express : 2.95%TTC commission will be charged.
• Payment on line http://www.aguttes.com/paiement/index.jsp
• Distance payments and multi-payments for one lot with the same card are not allowed
1F - PAYMENT DEFAULT
Settlements are cash. In the event of late payment on winning bids SAS CLAUDE AGUTTES will claim the legal rate of interest, plus five percent. A minimum fee of €500 will also be due for any other costs incurred by reason of default, including the following in the case of resale on false bidding :
- The difference between the price at which the lot was auctioned and the price obtained at its resale;
- The costs incurred by new auctioning.
1G - LAW AND JURISDICTION
In accordance with the law, it is added that all actions in public liability instituted on the occasion of valuation and of voluntary and court-ordered auction sales are barred at the end of five years from the hammer price or valuation. These Conditions of purchase are governed by French law exclusively. Any dispute relating to their existence, their validity and their binding effect on any bidder or buyer shall be submitted to the exclusive jurisdiction of the Courts of France.
II- SPECIAL CONDITIONs LINKED TO THE ACQUISITION OF A PHYSICAL WORK ACCOMPANIED BY ITS NON-FUNGIBLE TOKEN (NFT) – AGUTTES
2A - PREAMBLE - TRUSTED THIRD PARTY
The NFT accompanying the work of art sold at public auction is stored before the sale, and from December 18th at 6pm, in the dedicated AGUTTES wallet as a trusted third party.
The AGUTTES wallet can be freely consulted according to the indications specified on the description of the lot on aguttes.com, it corresponds to an escrow wallet which guarantees to the winning bidder the final delivery of the NFT.
2B - MORE DETAILS CONCERNING THE DESCRIPTION OF THE LOT
The work sold is accompanied by its NFT.
NFT stands for Non Fungible Token. A token is a digital asset issued by a unique blockchain and based on digital art. The NFT associated with the work being auctioned is a digital work that is separate from the physical work being offered. Like any object or cryptocurrency, the lot offered has the value that one agrees to give it on the day of its sale. The NFT, a digital work, is not a tangible personal property. Thus, given its intangible nature, the successful bidder cannot in any way demand a physical delivery of the NFT.
The adjudication of a physical work and its NFT, sold as a digital work, in one and the same lot makes the last bidder the adjudicator of the physical work to which is attached his NFT, digital work.
The NFT being an intangible personal property, its state, its consistency, its visual and its description are available on the AGUTTES escrow wallet.
The description of the condition and the presentation of the lot (on site Tuesday December 21 morning by appointment or more simply on the AGUTTES escrow wallet) are worth prior exposure of the lot and its associated NFT.
By purchasing lot 1 of the sale, the successful bidder becomes the owner of various elements that make him the one and only collector owner of this lot.
The NFT that it thus becomes the owner of is described by Vodafone, in the digital certificate, as the only replica of the original communication protocol (digital twin) faithfully recreated by Vodafone, to the best of its knowledge, ability and judgment and with the highest level of due diligence. It was minted in the blockchain by Vodafone Non-fungible Token ERC-721, Minted on December 18, 2021, ed. 1/1
The NFT being a collector's item, it does not confer any copyright or commercial right to its owner, as specified in the Smart Contract.
AGUTTES cannot be held responsible for the information given on the lot to be sold or its associated NFT and whose description is based on elements communicated by the seller Vodafone. It is thus up to the bidder to take knowledge before the sale of all the elements, including in particular the Smart Contract.
The digital certificates issued by the creators of the NFTs track all of the specific historical elements associated with the NFTs and attest to the identity of the NFT owner. The owner is free to keep the NFT in his collection. A limited right to transfer the NFT under license is also granted by Vodafone, as specified in the Smart Contract, subject to legal rights, title and interest and related intellectual property rights. All information concerning the evolution of the successive owners of the NFT certificate is stored on the blockchain, a decentralized system of publicly accessible computers that allows for complete security as to the veracity of the information stored. Thus, the collector's purchase is totally secure and he is guaranteed the quality of his collectible.
2C - PRIOR REGISTRATION REQUIRED
All potential buyers must register prior to the sale at bid@aguttes.com and before December 21, 2021 at 1pm. Please enclose a copy of your ID, your bank details and also deposit a 10% deposit of the targeted amount on https://www.aguttes.com/depot-caution
2D - IN CASE OF PAYMENT BY CRYPTOCURRENCY
The sale will be made in cash and conducted in Euros, which will be the only reference value. However, it will be possible to pay in cryptocurrency. The only accepted crypto-currency will be ETH, ether.
In this case, to the amount initially due in euros (hammer price + buyer's fees) will be added the fees generated to perform the transaction on the blockchain. The payment will be executed on the day of the purchase (Paris time zone) and will be based on the exchange rate at the exact moment of the payment. The exchange rate will be taken as an average of 3 indexes of https://cryptowat.ch/fr-fr/charts/KRAKEN:ETH-EUR at the time of payment, which is defined by the block in which the transaction is confirmed. If, for any reason (duration of the transactions, etc.), there is a difference of more than 1% of the agreed price that disadvantages the auction house, the buyer will have to pay the missing amount under the same conditions.
The wallet number to which the buyer should make the transfer is : 0x4aee372eba1e93f415659c8799804170135F8BaA
Payment shall be made from a single wallet, in the exact name of the successful bidder, and managed by one of the following organizations:
- Coinbase Custody Trust ;
- Coinbase, Inc ;
- Fidelity Digital Assets Services, LLC ;
- Gemini Trust Company, LLC ;
- Paxos Trust Company, LLC.
For this specific pre-registration, the registration must be made before 10:30 am on December 21, 2021. It will also be obligatory to provide bid@aguttes.com with all the useful documents for a perfect verification of the above information.
2E - PURCHASE PAYMENT - TRANSFERT OF THE LOT
AGUTTES will not be responsible for any payment made by the successful bidder and not received by AGUTTES.
The successful bidder will have to provide AGUTTES with his Ethereum compatible wallet number in a secure and written way by email.
The successful bidder will have to prove that he has control of the wallet by signing a message https://app.mycrypto.com/sign-message and giving Aguttes the opportunity to verify the signed message or by waiving and returning an amount of ETH defined by Aguttes. He will be responsible for any error that would be related to a wrong wallet number that he would have provided to AGUTTES.
The winning bidder's wallet must be able to support and accept the NFT/ERC721 token.
At the request of the winning bidder, subject to the receipt of the physical work from the owner of the lot and the effective crediting of the buyer's payment, SAS CLAUDE AGUTTES will be able to transfer the NFT within 48 hours to the winning bidder's wallet.
2F - COSTS OF TRANSFERRING NFTS BETWEEN WALLETS
The successful bidder will be responsible for all costs of transferring NFT :
- between the lot former owner's wallet and the AGUTTES escrow wallet (fee that will be incorporated into the buyer's invoice)
- between the AGUTTES wallet and his personal wallet
2G - SALE CONDITIONS UPDATE
Given the novelty of this type of sale, the legal conditions governing them may oblige us to modify certain points in the conditions of sale before the sale.
From now on, we would like to inform you that the final conditions of sale at the time of the sale will be the ones that will be authoritative between us and that they will cancel the previous conditions of sale.
In case of major modification, an email will be sent to the registered bidders at 2pm on the day of the sale by AGUTTES. AGUTTES will not be held responsible for a bad reception or a non-reception of the final conditions of sale addressed to the bidder before the sale.
AGUTTES encourages bidders to carefully read the final conditions of sale just before bidding.
III- SMART CONTRACT - VODAFONE
Effective Date: December 21th, 2021
These terms and conditions constitute a legally binding agreement (the “Agreement”) between you (also referred to herein as “You”, “Your” or “User”) and Vodafone GmbH (“Vodafone” “we” or “us”), governing your purchase of the NFT “Merry Christmas”: The world’s first SMS as described below (the “Auction”):
Vodafone confirms with the evidence of publicly available information that the first SMS of the world was received on the Vodafone network by Richard Jarvis, director of the telecommunications operator Vodafone, on December 3rd 1992. The message said “Merry Christmas”.
The NFT and the related smart contract represent the exclusive ownership (see in detail Section 2 and 3 of this Agreement) of this historic digital artifact. The purchaser receives in particular:
• A detailed replica of the original communication protocol created by Vodafone, which documents the sending/receiving of the world's first SMS. The purchaser receives the replica as a PCAP file and the replica of the original communication protocol as TXT files (coded/uncoded versions) and as PDF files (coded/uncoded versions). Vodafone warrants that the replica of the original transaction communication protocol (digital twin) was faithfully, to the best of its knowledge, ability and judgement and with the highest level of due dilligence recreated.
• A digital frame in the form of a physical asset (29x19.5cm). In this frame, a 3D animation is shown in which the mobile phone is presented at the moment of receiving the world’s first SMS. In addition to the physical asset, the purchaser also receives the included 3D animation as an MP4 file as a digital version.
• An animated version of the entire replica of the original communication protocol code which documents both the sending and the reception of the world’s first SMS.
• A certificate guaranteeing the authenticity and uniqueness of the NFT “Merry Christmas”: The world’s first SMS, signed by Vodafone Group CEO Nick Read (Smart Contract/Token ID/Mint-Date/Edition 1/1)
The exclusive NFT was minted on the Ethereum main chain (ERC-721) at token contract address 0x7ccc16b30893f98b9ae942d4a149aaa5320513f6. Vodafone warrants that it has neither minted in the past nor will mint in the future another NFT related to the first SMS of the world.
BY BIDDING IN THIS AUCTION, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN AND ALL OF THE CONDITIONS OF SALE OF AGUTTES AUCTION HOUSE (“Aguttes Conditions of Sale”, see https://www.aguttes.com/catalogue/121163?offset=0&). If you do not agree to the terms of this Agreement, as well as the Aguttes Conditions of Sale, you may not bid in the auction.
By entering into this Agreement, and/or by you participating in Auction, you expressly acknowledge that you understand this Agreement and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT PARTICIPATE IN THE AUCTION.
1 - DEFINITION
“Art” means any art, graphics, images, designs, logos, taglines, and drawings that may be associated with an NFT in which you acquire Licensed Rights.
“Equivalent” means the value, in Euros, of the market value of the relevant amount of cryptocurrency on the day of the transaction.
“Name and Likeness” means name, nicknames, images, likenesses, marks, copyrights, trade dress colors, trade dress designs, and/or all other intellectual properties of Vodafone or Vodafone Parties.
“NFT” means any blockchain-tracked, non-fungible token.
“Licensed Rights” with respect to an NFT means your rights to a Licensed NFT of which you are the current rightful licensee and which you acquired from a legitimate source, where proof of such purchase is recorded on the relevant blockchain.
“Licensed NFT” means the NFT “Merry Christmas”: The world’s first SMS created by Vodafone as specified in the Auction description for which you successfully provided the highest bid.
“Vodafone Parties” means Vodafone, and each of their parents, subsidiary and affiliate companies, and each of their respective officers, directors, members, affiliates, agents, attorneys, licensees, licensors and employees.
“Third Party IP” means any third-party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
“UNHCR” means the United Nations Refugee Agency, a global organization dedicated to saving lives, protecting rights and building a better future for refugees, forcibly displaced communities and stateless people.
2 - OWNERSHIP
You acknowledge and agree that Vodafone or Vodafone Parties (or, as applicable, its licensors) owns all legal right, title and interest in and to the Art and Name and Likeness, and all intellectual property rights therein. The rights that You have in and to the Licensed NFT and Art are limited to those expressly stated in Section 3 of this Agreement. Vodafone and Vodafone Parties and its licensors reserve all rights and ownership in and to the World's First SMS and the Licensed NFT, Name and Likeness, and Art not expressly granted to You in Section 3 of this Agreement. The purchase of the Licensed NFT, as well as associated charges, are non-refundable. This no-refund policy shall apply at all times regardless of Your decision to terminate usage of the Licensed NFT, any disruption to the operations of any components of the Licensed NFT, or any other reason whatsoever.
3 - RIGHTS
3.1 You acknowledge and agree that the Licensed NFT is made available solely for entertainment purposes. Without limiting the foregoing and subject to your continued compliance with this Agreement, Vodafone grants you a worldwide, non-exclusive, non-transferable (except as specifically provided below in Section 3.2), royalty-free license to display the Art for your Licensed NFT, both for the your own personal and/or commercial use.
3.2 You have the limited right to transfer the Licensed NFT, provided that (i) the transferee accepts all of the terms of this Agreement; (ii) UNHCR is paid ten percent (10%) of the gross amounts paid by such party relating to the Licensed NFT, including but not limited to any transfer price and any other related compensation (e.g., (1) if the transfer price is the Equivalent of EUR 500’000 then UNHCR will be entitled to the Equivalent of EUR 50'000 or (2) if the transfer price is Equivalent to EUR 500'000 and an additional EUR 100'000 is paid as related use fee then UNHCR would be entitled to EUR 60'000) and such payment shall be paid on the same terms and at the same time as you are paid; (iii) You have not prior to the transfer breached this Agreement; (iv) prior to the transfer your license to the Licensed NFT has not been terminated; and (v) the party purchasing the Licensed NFT provides Vodafone with a valid email address. You acknowledge and agree that the foregoing amounts payable to UNHCR under Section 3.2 (ii) hereof do not include, and are not intended to cover, any additional fees imposed or required by the platform through which You are transferring the Licensed NFT.
4 - RESTRICTIONS
4.1 You agree that you may not, nor permit any third party to do or attempt to do any of the following without express prior written consent from Vodafone in each case: (i) modify the Licensed NFT, Name and Likeness and/or Art for your Licensed NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the Licensed NFT, Name and Likeness and/or Art for your Licensed NFT to advertise, market, or sell any product or service; (iii) use the Licensed NFT, Name and Likeness and/or Art from your Licensed NFT in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others, drugs (including, without limitation, both prescription and non-prescription) or other supplements, death, pornography or other “adult only” or sexually explicit activities, massage parlors, prostitution or any dating or escort activities, weapons or ammunition, denigration or discrimination against individuals based on race, national origin, gender, religion, disability, ethnicity, sexual orientation, gender identity or age, medical conditions and/or political campaigns or causes; (iv) use the Licensed NFT, Name and Likeness and/or Art from Your Licensed NFT in movies, videos, or any other forms of media, except solely for Your own personal, non-commercial use; (v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Licensed NFT, Name and Likeness and/or Art from Your Licensed NFT; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Licensed NFT, Name and Likeness and/or Art from Your Licensed NFT; or (vii) otherwise utilize the Art from your Licensed NFT for Your or any third party’s commercial benefit.
4.2 To the extent that the Licensed NFT, Name and Likeness and/or Art associated with Your Licensed NFT contains Third Party IP You understand and agree as follows: (i) that You will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (ii) that, depending on the nature of the license granted from the owner of the Third Party IP, Vodafone may need to pass through additional terms and/or restrictions on Your ability to use the Art; and (iii) to the extent that Vodafone informs You of such additional restrictions in writing (email is permissible), You will be responsible for complying with all such restrictions from the date that You receive the notice, and that failure to do so will be deemed a breach of this Agreement.
4.3 The restrictions in this Section 4 will survive the expiration or termination of this Agreement.
5 - TERMINATION OF THE LICENSE
The Licensed Rights granted to You hereunder shall automatically terminate and all rights shall return to Vodafone if: (i) at any time You sell, trade, donate, give away, transfer, or otherwise dispose of Your Licensed NFT for any reason except as specially provided in section 3 of this Agreement; (ii) the email address you provide to Vodafone is no longer valid; (iii) You fail to comply with any of the terms and conditions of this Agreement (Breach of Contract); (iv) You have a trustee, receiver or similar party appointed for Your property, become insolvent, acknowledge Your insolvency in any manner, make an assignment for the benefit of your creditors, or file a petition of bankruptcy; (v) You engage in any unlawful business practice related to the Licensed NFT; (vi) You initiate any legal actions againstVodafone or Vodafone Parties and/or each of their parent, subsidiary and affiliate companies, and each of their respective officers, directors, members, affiliates, agents, attorneys and employees; or (vii) You disparage Vodafone or Vodafone Parties or any parties related to any of them.
6 - DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
THE LICENSED NFT IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES WHICH HAVE BEEN STIPULATED IN THE AUCTION DESCRIPTION ABOVE (SEE BEFORE SECTION 1.). TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, VODAFONE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL VODAFONE BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, OR FOR ANY FORM OF DIRECT OR INDIRECT DAMAGES, AND/OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION WHATSOEVER RELATED TO THE LICENSED NFT, THE AUCTION, ANY TECHNOLOGY AND/OR PARTIES RELATED TO THE AUCTION, INCLUDING BUT NOT LIMITED TO BLOCKCHAIN AND AGUTTES AUCTION HOUSE. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF A DISCLAIMING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VODAFONE’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED TEN PERCENT (10%) OF THE TOTAL SUM PAID DIRECTLY BY YOU TO VODAFONE FOR THE LICENSED NFT. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
7 - ASSUMPTION OF RISK
7.1 As noted above, the Licensed NFT is made available solely for entertainment purposes (see Section 3.1). You agree that You assume the following risks: (i) To the extent there is a price or market for a blockchain asset such as an NFT, such markets and prices are extremely volatile, and variations in the price of other digital assets could materially and adversely affect the value of any digital asset(s) You own, including Your Licensed NFT, and there is no guarantee that Your Licensed NFT will have or retain any value; (ii) the commercial or market value of Your Licensed NFT may materially diminish in value as a result of a variety of things such as negative publicity in connection with the Vodafone brand; (iii) there are risks associated with using internet-native (digital) assets (e.g., non-fungible tokens, cryptocurrencies, etc.) including, but not limited to, the risk of hardware, software and internet connections and/or failures, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your digital “wallet” or elsewhere, and Vodafone will not be responsible for any of these, however caused; (iv) Vodafone does not make any promises or guarantees about the availability of the Licensed NFT or the Art on the internet or that they will host the Licensed NFT or the Art at any specific location and/or for any specific period of time; (v) upgrades to the decentralized blockchain platform Ethereum, a hard fork or other change in the Ethereum platform, a failure or cessation of Ethereum, or a change in how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using such technologies, including without limitation the Licensed NFT; (vi) Vodafone does not make any promises or guarantees related to the MetaMask Wallet, Blockchain, Aguttes Auction House or any other third parties related to this auction and each of their applications and/or services, including but not limited to the continued availability of either and/or the protection and/or storage of any data you provide to those parties; (vii) the risk of losing access to Your Licensed NFT due to loss of private key(s), custodial error or purchaser error; (viii) the risk of mining attacks; (ix) the risk of hacking, security weaknesses, fraud, counterfeiting, cyber attacks and other technological difficulties (x) the risk of changes to the regulatory regime governing blockchain technologies, cryptocurrencies, and tokens and new regulations, unfavorable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of the Licensed NFT; (xi) the risks related to taxation; (xii) that NFTs are not legal tender and are not back by any government; and (xiii) that Vodafone is not responsible for any transaction between you and a third party (e.g., transfer of the Licensed NFT on the so-called “secondary market”), and Vodafone shall have no liability in connection with any such transaction.
7.2 In addition to assuming all of the above risks, you acknowledge that You have obtained sufficient information to make an informed decision to license the Licensed NFT and that You understand and agree that you are solely responsible for determining the nature, potential value, suitability and appropriateness of these risks for yourself. Vodafone and Vodafone Parties cannot and do not represent or warrant that any Licensed NFT, or its supporting systems or technology, is reliable, current or error-free, meets Your requirements, or that defects in the Licensed NFT, or its supporting systems or technology, will be corrected. Vodafone and Vodafone Parties cannot and do not represent or warrant that the Licensed NFT or the delivery mechanism for it are free of viruses or other harmful components. You accept and acknowledge that Vodafone or Vodafone Parties will not be responsible for any communication failures, disruptions, errors, distortions or delays You may experience related to the Auction.
8 - GOVERNING LAW
This Agreement and all matters related to Your Licensed NFT shall be governed by, construed, and enforced in accordance with the laws of France without application of conflict of laws principles.
9 - CHANGES TO THIS AGREEMENT
Vodafone may make changes to this Agreement from time to time. When Vodafone makes such changes, we will make the updated Agreement available on https://www.vodafone.de/media/downloads/pdf/1st-SMS-NFT-Terms-and-Condition.pdf and update the “Last Updated” date at the beginning of the Agreement accordingly. Please check this page periodically for changes. Any changes to this Agreement will apply on the date that they are made and, by way of example, Your continued access to or use of the Licensed NFT and the Art after the Agreement has been updated will constitute your binding acceptance of the updates.
10 - ELIGIBILITY
10.1 The participation in the Auction is open only to individuals who have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein and who are using currency that such party is the lawful holder thereof. It is not available to Users who have had their User privileges temporarily or permanently deactivated. You may not allow other persons to use your User credentials, and You agree that You are the sole authorized User.
10.2 By becoming a User, you represent and warrant that you are at least 18 years old, or the age of majority in your country or territory, whichever is older.
11 - INDEMNITY
You will defend, indemnify, and hold Vodafone and Vodafone Parties, including each of their respective affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders, harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your license, sale or possession of the Licensed NFT and/or Your participation in the auction, including: (i) Your breach of this Agreement or the documents it incorporates by reference; (ii) Your violation of any law or the rights of a third party as a result of your own interaction with such third party; (iii) any allegation that any materials that You submit to us or transmit in the course of the auction, communications seeking Vodafone’s consent to activities or otherwise, infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (iv) any other activities in connection with the Auction or the Licensed NFT. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
12 - TAXES
You are responsible for all applicable tax including any VAT, sales or compensating use tax or equivalent tax wherever such taxes may arise. The successful bidder is responsible for any applicable taxes including any sales or use tax or equivalent tax wherever such taxes may arise on the price, the buyer’s premium, and/or any other charges related to this Auction. The applicable sales tax rate will be determined based upon the state, county, or locale. Vodafone is not responsible for determining the taxes that may apply to your transaction(s).
13 - TRANSLATION
If you are provided a translation of this Agreement, the original version in English will be used in deciding any issues or disputes which arise under this Agreement.
14 - SEVERABILITY
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
15 - CONTACTS US
If you have any questions or concerns, including if you need to access this Agreement in an alternative format, we encourage you to contact us via email at nft@vodafone.com.
