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Terms and Conditions for Collectors

(version 2020.08.13)

Introduction

These Terms and Conditions for Collectors (“Collector Conditions”) set forth certain rights and obligations of dloop Ltd, Dammstrasse 16, 6300 Zug d/b/a elementum (“we”, “us”, or “elementum”) and you (“you”, “Collector”, if and as applicable) with respect to your access to and use of our platform, including to elementum.art and the elementum apps (each the “Platform”), and the acquisition of certain Rights in and to Editions of works exhibited on the Platform. For purposes of these Collector Conditions, capitalized terms shall have the meanings specified in Section 14 below.

These Collector Conditions, together with all other policies and terms and conditions we may provide to you from time to time in connection with the Platform, to which you consent and agree by accessing and using the Platform, shall form the “Agreement” which shall specify your rights and obligations with respect to the Works, the Editions, and the Platform. In the event of any conflict between these Collector Conditions and any other Agreement with respect to the subject matter hereof, the Collector Conditions shall prevail.

You must take the time to read and understand these Collector Conditions before using the Platform, together with each of the Agreements, as they expand upon these Collector Conditions, and are binding legal agreements which govern your use of the Platform and, the Sale and the Use of Editions of the Works. You accept that you are entering into a contract with us under these Collector Conditions.

Platform

Our Platform operates a digital gallery and marketplace for the purchase and the sale of certain Rights to limited-edition digital artworks provided to us by Artists in accordance with these Collector Conditions. Collectors may browse the Platform, search for and view the Works and use other features of the Platform. The actual sale and purchase contracts are entered into directly between the Artist and the Collector.

For each Edition of the Works, Elementum creates a Token on behalf of the Artist, such Token being transferred together with the Edition and serving as a proof of authenticity of the Edition. The Token is a unique, transferable Token on the Ethereum blockchain. The Token is held by Elementum on the Platform in a secure wallet on behalf of the Collector.

Elementum further provides a subscription service that allows collectors to store and access their Editions streamed over the Internet to certain Internet-connected TVs, computers and other devices owned or controlled by the Collector ("Elementum Ready Devices").

Each Work may be a new original creation or an excerpt from a preexisting original artwork, but always the copyright must be wholly owned by and original to the Artist, except to the extent of any public domain materials, and must be exclusive to the Platform with respect to the Rights. Each Artist has agreed not to make the Rights to the Work, an Edition, or any substantially similar or equivalent artwork, available to third parties - except of the defined Artist Proof he owns. We are not able to verify or validate the exclusivity of a Work or an Edition, and we do not supervise or manage Artists, so we make no representation or warranty as to the exclusivity or validity of any Rights, except and solely to the extent as may be required by applicable law.

Purchase of an Edition

The Rights that an Artist grants to a Collector on a purchased Edition are mentioned in the Sale of an Edition. If not specified otherwise in the Sale of an Edition, the Artist provides a limited, transferable, perpetual, worldwide license for the private, non-commercial exhibition of a Work, for Use on one concurrent Elementum Ready Device. Except for the foregoing, no right, title or interest shall be transferred to the Collector. The Collector agrees not to reproduce (on paper or otherwise), distribute, modify, publish, license, partially transfer, create derivative works from, or use, except as explicitly authorized in these Collector Conditions, the Editions that he acquired.

Subscription Service

In order to display the Editions on Elementum Ready Devices, the Collector needs a subscription from Elementum. During the subscription, Elementum holds the Tokens of the Collector on the Platform. Access to the Editions is subject to ownership of the Token. The subscription is free as long as Elementum does not provide for a solution to transfer the Token to the Collectors, and does not provide for a technical solution for the Collectors to Use their Editions on Elementum Ready Device without the Platform for offline Use.

Elementum is working on a solution that shall enable a transfer of the Token to a wallet controlled by the Collector or a third party. We will have no responsibility for the security or effectiveness of any such transfer to or storage in a third party wallet, and we make no representation or warranty as to the security of any transmission, storage or transaction to or from any third party device or platform. Note that the Ethereum blockchain is frequently updated and is subject to “forks” and other changes which may impact our ability to define the Rights and validate each Sale. We reserve the right to determine in our sole and absolute discretion whether, how, and when to accommodate changes to the Ethereum blockchain, including, without limitation, switching to alternative forms of cryptographic protection. elementum also provides storage for the Works and Editions, and facilitates the exhibition of the Work in the highest available resolution across all personal digital devices, in accordance with the Rights, by resizing, up and downscaling, cropping, editing, and otherwise making compatible for and delivering the Works to each elementum Ready Device. You acknowledge and agree that a Work may be modified as necessary for each authorized Use. The Artists will retain all copyright in and to the Works, including any modified versions.

Secondary Market

Collectors may sell their Editions through the Platform’s secondary market, or other third party marketplaces, by transferring the ownership of the Token representing the Rights to such Editions. The Platform currently uses “smart contracts” on the Ethereum blockchain to define the Rights and to validate and record each Sale.

Collector can only transfer such Rights as he has acquired in the Sale. Collector represents and warrants that he will not offer to transfer any other rights than the Rights acquired in the Sale. We make no representation or warranty that any resale market will be available, or that any Edition will maintain any value or increase in value. As an asset class, art is inherently uncertain and risky, and the value of the Edition will be unpredictable and subject to volatility.

Collector Account

You may not establish a Collector Account unless you are at least 13 years old. You are responsible for ensuring that your Collector Account includes complete, accurate, and up-to-date information, and may include, without limitation, your name, address, contact details, payment information, and any other details required by any applicable government agency or regulatory body.

You must not take any action through your Collector Account that could potentially infringe anyone's rights, or which is offensive, hurtful, false, defamatory, threatening, or otherwise inappropriate, as we determine in our sole and absolute discretion. We may suspend or terminate your Collector Account, limit your permissions on the Platform, and withhold payments to you, if we determine or have reason to suspect that you have committed any such action. You acknowledge and agree that you are responsible for everything which is done on, through, or in connection with your Collector Account.

For security or other reasons, we may require you to change your password or other information which facilitates access to the Platform; however, we will never ask you for your password. You are solely responsible for maintaining the confidentiality of your password and any additional identifying information.

You must provide all requested information, which may include materials needed to verify your identity. We reserve the right to refuse and/or to terminate an account, for any reason or no reason at all, but including, without limitation, activities or statements which are or may be in conflict with the laws of any jurisdiction, or which may in our sole discretion reflect poorly on elementum, the Platform, a Work or Edition, or any other Collector, Artist, or Collector. After forming your Collector Account you will be permitted to acquire Editions and their accompanying Tokens through the Platform. We seek to protect the value of Editions acquired by you by restricting Artists from making the same or substantially Works or Editions available elsewhere, even if the Artist terminates its Artist License Agreement and withdraws unsold Editions from the Platform. We are not able to supervise Artists or verify their performance of these obligations, so we make no representation or warranty in connection therewith except as may be required by applicable law.

Your Obligations to Us

You acknowledge and agree that, as between you and us, (i) we shall at all times exclusively own and control the Platform, our Marks, any and all data and information generated in connection with the operation of the Platform, including, without limitation, any and all communications between you and us, and our communications with Artists and any third party, the exhibition, marketing, promotion, advertising, and Sale of the Editions, the storage, exhibition, and modification of the Works, and the use of the Tokens, and any and all technical specifications and processes in connection therewith, (ii) the exercise and use of all of the foregoing shall inure solely to our benefit, and (iii) all of the foregoing are proprietary and confidential to us and shall not be shared or disclosed by you to any third party, except to the extent strictly required by applicable law. We do not grant you any right to display or use our Marks, Platform, or proprietary and confidential data and information, except as expressly authorized in these Collector Conditions, without or express prior written permission.

By using or accessing our Platform, you give your consent and agreement to our Privacy Policy, which governs all Platform users. You shall use the Platform, and all content and intellectual property rights associated with the Platform, solely as expressly authorized by us pursuant to these Collector Conditions. You will not use any robot, spider, scraper, any other automated means to access the Platform, for any purpose, without our prior written approval. You shall not use the Platform to send unsolicited messages, or to harvest or otherwise collect information about Collectors, including email addresses, without their and our express consent. No Collector shall use any information regarding other Collectors that is accessible through the Platform except as expressly permitted by these Conditions.

You acknowledge that we have the right in our sole and absolute discretion to change, modify, remove, or withdraw any and all features of the Platform, at any time, without notice. You will fully cooperate with us in the enforcement of our exclusive rights in the Platform, and we shall be exclusively entitled to retain any and all damages, costs and any other relief, equitable or legal, recovered against any infringer of such rights.

Our Commission

A Commission on each Sale is retained by us, whether it is a Commission on the first Sale of an Edition, or a subsequent Sale when you sell an Edition of the secondary market on our Platform. The relevant Commission on the Sale of an Edition that you own will be specified at or before the time when the Sale occurs. You are responsible for the payment of any and all sales, use, withholding, income, and other taxes or fees required by any law. We will deduct and pay such taxes or fees for you to the extent we are required to do so.

Collector Rights

The Sale of an Edition to a Collector transfers only the rights to Use the Edition in strict accordance with these Collector Conditions. These rights include the rights to: (i) access the sold Edition on the Platform; (ii) store the Token which accompanies the sold Edition in a cryptographically secured wallet on or off the Platform; (iv) buy, sell, or trade the Edition and its accompanying Token, on or off the Platform; and (v) Use the Edition in accordance with the granted Rights. Note that the Artist who created the Work continues to own the copyright in it, and has the exclusive right to be identified as the author of the Artwork and each Edition. Collectors purchase Rights rather than the copyright in the Sold Editions. We will be entitled to seek injunctive and/or equitable relief to address any potential breach or default of any of your obligations under these Collector Conditions, including, without limitation, any use other than as expressly permitted pursuant to this Paragraph.

Our Obligations to You

We will make commercially reasonable good faith efforts to (i) ensure the uninterrupted availability of the Platform to facilitate the exhibition and Sale of the Works; (ii) ensure that each Artist agrees to the Artist Conditions and the Privacy Policy, (iii) maintain accurate records of each Work, Edition, and Sale, but we make no representation or warranty relating to any of the foregoing.

We reserve the right to withdraw or modify all or part of the Platform and/or any service or product we offer, at any time, for any reason, without any liability to any Collector or Artist, except as expressly described in this Agreement.

Although we provide very clear rules regarding the exclusivity of the granted Rights, the Works, and the Editions, we are not able to supervise or manage the Artists; accordingly, some may exploit the Works in ways that are unlawful or in breach of the Artist Conditions.

Further, we are unable to screen or review any content contributed to the Platform by a Collector, and cannot prevent any such party from saying or doing anything dishonest, unlawful, or in breach or this Agreement. You acknowledge that we have no responsibility or liability for the acts of any Artist, Collector, or other third party, and you waive any and all claims against us in connection therewith. To the fullest extent permitted by applicable law, you release us, our agents, directors, officers, shareholders and employees from all liability arising out of or in connection with the acts or omissions of third parties in connection with the Platform, the Works, the Editions, the Tokens, and any Sale, including, without limitation, the Artists, and Collectors.

We use reasonable care and skill to provide the Platform as described herein, but the Platform is provided on an "as is" basis, and we cannot and do not guarantee that the Platform will meet any specific requirements. We shall have no obligation, duty or liability whatsoever in contract, tort (including negligence, breach of statutory duty and any other tort) or otherwise, save as expressly provided in these Collector Conditions and as otherwise required by applicable law. Except as expressly stated elsewhere in these Collector Conditions, all representations, warranties, conditions and other terms, whether express or implied (by common law, statute, collaterally or otherwise) are hereby excluded, except in the case of fraud, or where such exclusion is not permitted by law.

The Platform may contain links, advertisements, promotions, or marketing for third party products or services, which sites may have terms and conditions which differ from ours and may provide offensive, objectionable, unlawful, or inaccurate information. The presence or such third party content does not indicate that we endorse such third parties or their content, and we are not responsible for examining or evaluating the quality, accuracy, reliability, or lawfulness of such third party content, products, or services.

We, our agents, directors, officers, shareholders, employees and subcontractors will not be liable to you or anyone else, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise for any loss of revenue, data, business, anticipated savings, profits, opportunity, goodwill or reputation, or for any business interruption; or for any indirect, special or consequential loss damage, costs or other claims, howsoever caused or arising. Our liability shall be limited to direct loss or damage, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise, and whether caused by its act or omission or that of its agents, directors, officers, shareholders, employees and subcontractors. Our liability shall be limited to wilful intent and gross negligence. It is your responsibility to take out insurance against risks which exceed such amounts or are otherwise excluded from these Collector Conditions.

Representations and Warranties

You warrant and represent to us and to our affiliates, and to our and their respective agents, employees, representatives, licensees, designees, and successors-in-interest, including without limitation the Artists and other Collectors, that: Although you may use a pseudonym for purposes of maintaining anonymity with respect to your public activities on the Platform, you will not misrepresent your identity in any way (for example, by choosing a pseudonym recognizable as a well-known third party, or by otherwise purporting to be someone other than your actual identity); You will not publish or display any material containing personally identifying information about another Collector, or Artist, such as their real name, address, phone number, or email address, except with the prior written approval of that Collector or Artist; You have the full and complete power and authority to enter into these Collector Conditions and to grant all rights granted or purported to be granted herein, and you are exclusively entitled to provide to us all warranties, indemnities, assurances, confirmations, waivers and agreements set out in these Collector Conditions; In the event you acquire an Edition and subsequently seek to transfer your rights therein to a third party, such Sale will be free from any and all liens, claims or encumbrances of any kind whatsoever against or affecting the Edition, and you will take no action that would or could create a lien, claim or encumbrance on the Edition; You will not Use any Edition except as expressly authorized pursuant to the Rights granted to us by the Artists and to you by us pursuant to these Collector Conditions; for the avoidance of doubt, you represent and warrant that you will not seek to modify, edit, revise, reverse – engineer, or in any way change the Editions, and your Use will be limited to the exhibition thereof as expressly provided for herein and by the Platform; You will not create, produce, or make available additional multiples or iterations of an Edition; Your conduct in connection with the Platform, including without limitation your Use of any Edition, will not contravene any applicable law (including, without limitation, any criminal law), or the rights of any third party, and (without limiting the foregoing) your engagement with the Platform and Use of the Editions will not include anything that is capable of being considered false, inaccurate, misleading, abusive, threatening or defamatory; and You will not take any action to interfere with the proper operation of the Platform or any Edition, including, without limitation, by introducing to the Platform or any Edition any computer virus, macro virus, Trojan horse, worm, or anything else designed to or capable of interfering with, interrupting, or disrupting the normal operating procedures of a computer, mobile or over-the-top device, or any other device or software, or surreptitiously intercepting, accessing without authority, or expropriating any system, data or personal information.

Indemnity

You shall indemnify us and our affiliates on demand and hold us harmless from and against all actions, claims, liabilities, proceedings, costs and damages (including any damages or compensation paid by us on the advice of our legal advisers, after where reasonably practicable consultation with you, to compromise or settle any claim), and all legal costs and other expenses and losses including (but not limited to) losses of profits, arising, directly or indirectly, out of any breach or alleged breach of any of the representations and warranties provided by you above, or out of any claim by a third party based on any facts which if substantiated would constitute such a breach or non-performance by you of any of your obligations under these Collector Conditions or the Agreement, and/or any content contributed by you to the Platform. Notwithstanding any other provision of these Collector Conditions, if we determine that we may have a claim against you arising out of any breach or alleged breach of any of your covenants, warranties, representations or undertakings under these Collector Conditions, we shall be entitled to withhold from any sums (including without limitation the proceeds of any Sale) due to you under these Collector Conditions or any other Agreement in connection with any Work an amount which we, in our discretion, consider appropriate to reserve against that claim (which may include, without limitation, amounts to compensate third parties, including, without limitation, the Artists). Note also that we are entitled immediately to withdraw from Sale any or all of a Collectors’ Editions and withhold any proceeds payable to a Collector in the event that we conclude, or are notified that, such Collector may have infringed any of his or her covenants, warranties and/or representations hereunder.

Miscellaneous

Governing Law; Dispute Resolution; Venue. These Collector Conditions shall be governed by, construed, interpreted and enforced, in accordance with the laws of Switzerland, without reference to conflict of law principles. All disputes arising under this Agreement not otherwise cured shall be referred to the exclusive jurisdiction of Zug, Canton of Zug, Switzerland. Assignment. We reserve the right to assign these Collector Conditions and to assign or subcontract any or all of our rights and obligations hereunder (including, without limitation, the Rights). Upon the assumption of our obligations hereunder, we will be released from such obligations and there shall be deemed to be a novation of these Collector Conditions (on identical terms and conditions) between you and such assignee. You may not without our written consent assign or dispose of these Collector Conditions or any of your rights and obligations under them. Amendment. We reserve the right to change these Collector Conditions from time to time, and post the new version on the Platform. The new version of these Collector Conditions will take effect: on the date that is 28 days after the date of posting (or such later date as we indicate in the relevant posting), if any of the changes is to an operative provision of these Collector Conditions which is capable of adversely affecting you; or immediately upon the date of posting (or such later date as we indicate in the relevant posting), if the changes are not capable of adversely affecting you - examples of which would include, without limitation, (i) changing the name of and/or the URL that you use to access the Platform, or (ii) the refinement of provisions that are already included or referred to in these Collector Conditions. These Collector Conditions may not otherwise be modified, changed or revised in the absence of a written agreement which recites and approves such modification, change or revision. Termination. You may terminate your Collector Account at any time on 30 days written notice to us.

Survivability

No Implied Waiver. If any part of these Collector Conditions is held to be invalid or unenforceable, the remainder shall remain valid and enforceable. These Collector Conditions will be binding upon and inure to the benefit of our respective successors, assigns, heirs, agents, beneficiaries and representatives. Our failure to act with respect to a breach of these Collector Conditions by you or others does not waive our right to act with respect to subsequent or similar breaches.

Entire Agreement

These Collector Conditions, together with the rest of the Agreement, expresses our entire understanding with respect to the subject matter hereof, and replace any and all former agreements, understandings and representations relating in any way to the subject matter hereof. No modification, alteration or amendment of this Agreement shall be valid or binding unless it is in writing and signed by the party to be charged with such modification, alteration or amendment. No officer, employee or representative of elementum has any authority to make any representation or promise not contained in the Agreement and you acknowledge that you are not entering into this Agreement in reliance upon any promise or representation not expressly set forth in this Agreement.

Definitions

“Account” means the account registered with the Platform, which account shall include complete and accurate information establishing the identity, contact, and payment details for each Collector, Collector, and Artist, as applicable. “Agreements” has the meaning set forth in these Collector Conditions. “Artist” has the meaning set forth in these Collector Conditions. “Artist Conditions” means the elementum Artist Terms and Conditions to which each Artist must agree before providing a Work for exhibition on the Platform and for Sale in the form of an Edition, as the same may be updated from time to time. “Artist Proof” means Edition owned by the Artist. Artist's proofs are not included in the count of the limited editions.

“Collector” means an authorized user who has registered an account with the Platform.

“Collector Conditions” means the elementum Collector Terms and Conditions, as the same may be updated from time to time.

“Commission” has the meaning set forth in these Collector Conditions.

“elementum” has the meaning set forth in these Collector Conditions.

“elementum Ready Devices” has the meaning set forth in these Collector Conditions

“Edition” means a limited set of copies or iterations of a Work which have been authorized for Sale and use in accordance with the Rights.

“Marks” means our owned and licensed trademarks.

“Platform” has the meaning set forth in these Collector Conditions.

“Privacy Policy” means that certain Privacy Policy provided by us, to which you agree when you use the Platform, as the same may be updated by us from time to time.

“Rights” has the meaning set forth in these Collector Conditions.

“Sale” means the transfer of Rights to use a copy of a Work comprising part of an Edition, from the Platform to a Collector, or from a Collector to another party.

“Site” means the primary website under which the Platform is operated (currently located at http://www.elementum.art), and each other website operated by or in connection with the Platform.

“Token” means the unique, transferable cryptographic digital record of ownership of the Rights to Use an Edition and the digital certificate of authenticity of the Edition.

“Use” means the display, exhibition, transfer, license, sublicense, modification, marketing, and promotion of the Works in accordance with the Agreement, including without limitation the Artist Conditions, the Collector Conditions, and the Privacy Policy.

“Works” means the unique, original artworks provided exclusively to us by you for Sale and Use on and in connection with the Platform, as further described in the Agreements.


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