Platform Terms of Use
These Platform terms of use (the "Platform Terms of Use") set out the terms and conditions under which a Member (as defined below) may access and use Subs GmbH's (Bavariaring 7, 80336 Munich, Germany; "SUBS") online platform with "Originals" marketplace ("Platform") through SUBS' mobile app (the "App") or website (www.subs.tv; "Website"). On the Platform, Members can publish and access digital content ("Content") and purchase and sell non-fungible tokens/NFTs ("Originals"). The Platform is being continuously developed further. Respective fault situations can occur and are dealt with as fast as possible.
1. Definitions
In these Platform Terms of Use, the following terms shall have meaning as follows:
App — shall have the meaning ascribed to in the Recitals.
Collector — shall mean a purchaser of an Original.
Commission Fee — shall have the meaning ascribed to in section 10.
Content — shall mean any digital content, other than Original(s), published and accessible on the Platform, such as posts, stories, comments and chat messages.
Creator — shall have the meaning ascribed to in section 2.2.Fee — shall have the meaning ascribed to in section 10.
Fixed Fee — shall have the meaning scribed to in section 10.
Flow Blockchain — shall have the meaning ascribed to in section 7.4.
Marketplace —shall mean a person-to-person marketplace where a member can gift, offer and sell "Originals" to another member.
Member — shall mean the person (individual or company) who accesses the Platform and uses the Services, such as the seller of an Original or the Collector.
Originals — Non-Fungible Token(s) / NFT(s) offered for sale, sold or purchased on the Platform.
Parties — SUBS and the Member
Party — SUBS or the Member
Personal Data — Any information relating to an identified or identifiable person in the meaning of the applicable data protection laws.
Personal Login Data — shall have the meaning ascribed to in section 2.1.
Platform — shall have the meaning ascribed to in the Recitals.
Platform Terms of Use — shall have the meaning ascribed to in the Recitals.
Royalty Fee — shall have the meaning scribed to in section 10.
Sensitive Content — shall have the meaning ascribed to the SUBS Community Guidelines.
Services — shall mean SUBS' Platform related services rendered to Members, as amended from time to time.
Smart Contract — shall have the meaning ascribed to in section 7.4.
Stripe — shall have the meaning ascribed to in section 5.4.
SUBS — shall have the meaning ascribed to in the Recitals.
SUBS Community Guidelines — shall mean SUBS' rules setting out general rules of conduct for any person accessing and using the Platform, as amended from time to [LINK].
SUBS Privacy & Cookie Policy — shall mean SUBS' privacy and cookie policy, as amended from time to time [LINK].
Trademarks — shall mean all trademarks, service marks, logos, brand names, trade names, domain names and/or slogans used by SUBS in connection with the Services provided under these Platform Terms of Use (whether registered or unregistered).
Verification Fee — shall have the meaning ascribed to in section 10.
Website — shall have the meaning ascribed to in the Recitals.
2. Registration, Verification
2. 1. Before the Member is being granted access to the Platform, the Member or Member's authorized representative must have registered as Member on the Platform using its/his/her existing Google or Apple ID login credentials ("Personal Login Data") and accepted (i) the terms and conditions of these Platform Terms of Use, (ii) the SUBS Privacy & Cookie Policy [LINK] and (iii) the SUBS Community Guidelines [LINK].
2.2. In addition, the Member must have been verified and pre-approved by SUBS, or a service provider designated by SUBS, to (i) apply for "Creator" status which is required to create Originals, (ii) accept payments in the course of selling and reselling Originals on the Platform (which requires successful completion of a KYC process conducted by the service provider), (iii) post and see Sensitive Content, (iv) purchase or otherwise obtain Creator shares, and (v) allow only other verified Members to communicate with it/him/her, see its/his/her Content and subscribe for its/his/her channel.
2.3. SUBS reserves the right to deny registration to any potential Member.
2.4. It is within Member's sole responsibility to keep the Personal Login Data in confidence and to avoid any misconduct with regards to the use of the Personal Login Data. Personal Login Data shall not be transferred to anyone. SUBS shall not be liable for any damages resulting from any abuse of any Personal Login Data.
2.5. Whoever legitimizes himself by using Personal Login Data (self-legitimization) is considered as authorized to access and use the Platform and the Services (i.e., as Member or Member's authorized representative) without further verification of his/her authorization by SUBS. Likewise, all instructions, orders and all communication received by SUBS via the Platform are regarded as entered and/or authorized by the Member whose Personal Login Data has been used.
2.6. Insofar as the functionality is available on the Platform, the Member may individually design his/her/its user profile. However, the Member must then in particular refrain from pretending to be another person, brand or organization, as further set out in the SUBS Community Guidelines.
3. Blocking of Personal Login Data, Termination of Use
SUBS may at any time and without notice block a Member's access to the Platform, in particular if such Member is suspected of having provided false data for the purpose of registering, verifying or ordering Services or violated (i) these Platform Terms of Use, (ii) the SUBS Privacy & Cookie Policy [LINK], (iii) the SUBS Community Guidelines [LINK], or (vi) any other applicable laws or regulations. In addition, SUBS may block access if considered necessary for security reasons. If a Member has multiple accounts, SUBS reserves the right to block/terminate all such Member's accounts.
4. SUBS Community Guidelines
4.1. The Member shall strictly comply with the SUBS Community Guidelines [LINK]. In particular, the Member shall not publish any Content, or offer for sale or sell Originals, which are inappropriate, unlawful, infringes copyright or other rights of third parties or which contain any other form of illegal content.
4.2. The Member hereby undertakes to fully compensate and indemnify SUBS for and against any and all damages, loss, costs and expenses, including indirect and consequential damages, loss of profits, interest, penalties and reasonable attorney's fees incurred or sustained by SUBS due to a breach of section 4.1 of these Platform Terms of Use.
5. Services
5.1. SUBS provides the Member with the Services available when registering for or accessing the Platform with its Personal Login Data. Such Services may in particular include the uploading and making accessible of Content on the Platform to other Members, the offering for sale, selling and purchase of Originals, the perusing through and buying of Content and Originals of other Members, the possibility to create user profiles and to communicate with other Members.
5.2. The Services available on the Platform may also include services of third parties to which SUBS merely provides access. In relation to such services, the respective third party is the Member's contractual partner based on the respective third parties' terms and conditions. In addition, SUBS is not acting as auxiliary person of third parties offering services on the Platform.
5.3. SUBS is entitled at any time to change Services on the Platform and to discontinue the provision of Services.
5.4. The Member acknowledges that the Services may not be available in certain countries or regions. In particular,
a) the Platform is only available if a Member can download the App in its/his/her country- or region-specific app store;
b) Originals may only be purchased or sold if a country is supported by SUBS' payment service provider (which is currently "Stripe"; Stripe's currently supported country list is available here: https://stripe.com/global); and
c) for now, split payments by Stripe for Co-Creators and Royalties are only available in EU countries due to Stripe's regulations. We are working on enabling split payments for Co-Creators and Royalties for all countries supported in 5.4. b) at this very moment.
6. Technical Support
6. 1. Unless otherwise agreed between SUBS and the Member, SUBS or third parties designated by SUBS will provide technical support relating to the use of the Platform and the Services during normal business hours. SUBS does however not guarantee a certain availability of the Platform and/or Services.
6.2. The Member is solely responsible for having the technical prerequisites in place in order to access the Platform and use the Services (e.g. computer/mobile phone, access to the Internet).
7. Content, Originals
7.1. The Member is solely responsible for the Content uploaded to and made available on the Platform, and the Originals offered for sale and sold, to other Members. The Member is solely responsible for compliance with all laws and regulations applicable to the Content and the Originals, and that the Content and the Originals do not infringe any third-party rights, in particular, but not limited to, third party copy- or personality rights in Content or Originals. SUBS does not give any representation or warranty to any Member that the Content or the Originals do not infringe any such third-party rights.
7.2. The Member must strictly adhere to the SUBS Community Guidelines [LINK] when uploading and making Content available on the Platform, and offering for sale and selling Originals, to other Members.
7.3. Unless otherwise agreed between the selling Member and the Collector, offers for sale and sales of Originals are governed by, and construed in accordance with, applicable laws.
The sales contract is directly entered into between the selling Members and the Collector. For the avoidance of doubt, SUBS is neither party nor auxiliary person nor in any other way involved in the conclusion or performance of the sales contract entered into between the selling Members and the Collector, nor does SUBS give any representation or warranty with respect to the Originals, nor does SUBS purchase or sell any Original.
Therefore, any claims arising out of or in relation to the sales contract, including the validity, invalidity, breach or termination must be made directly between the selling Member and the Collector. SUBS does, for example, also not make paybacks or reverts sales contracts relating to Originals.
7.4. The Member acknowledges that the creation, purchases and sales of Originals are determined by SUBS' smart contract (public program on the blockchain [LINK]; "Smart Contract") and recorded on the public "Flow Blockchain" (https://www.onflow.org/).
By creating, purchasing and selling Originals, the Creator as well as the selling Member and the Collector agree to the Smart Contract and accepts that SUBS does not have any responsibility on the maintenance, governance or support of the Flow Blockchain.
7.5. The Subs Original is supposed to represent the single original digital copy of a content. Therefor the Creator agrees to exclusively offer and sell Originals from a content in any digital form, on the Platform, for a period of five years upon purchasing the respective Original.
7.6. Unless explicitly stated in the Content description and assigned to the Collector, all intellectual property (IP) rights relating to the Creator's digital artwork itself stay with the Creator and are not assigned to the Collector.
With the purchase of an Original, the Collector receives the cryptographic token representing the Creator's digital artwork as the original copy, but not any IP or copyrights to the artwork. However, unless otherwise agreed between the selling Member and the Collector, the Collector is in particular entitled to
a) offer for resale, resell or otherwise transfer the purchased Original on the Platform;
b) designate it/him/herself privately and publicly as owner of the purchased Original; and
c) privately and publicly discuss, promote or otherwise comment on the Original.
8. SUBS' Rights concerning Content and Originals
By uploading Content and Originals to the Platform, the uploading Member accepts that SUBS or its affiliates may use such Content or Originals to the extent necessary or useful to fulfil SUBS' contractual obligations towards any Member as well as to meet statutory obligations imposed on SUBS. Such use includes in particular the following:
a) Storing and making such Content and Originals accessible (including, to the extent necessary to make it accessible, copying such Content and Originals) on the Platform to other Members; and
b) Storing the Content and Originals upon termination of the contractual relationship with the Member if and to the extent required by statutory obligations (e.g., statutory retention periods) imposed on SUBS.
9. SUBS' IP Rights
9.1. Ownership
All IP rights and other rights attached to the Platform or to Services are owned or licensed by SUBS. No such rights shall be assigned hereunder to the Member. However, SUBS does not claim any IP rights relating to the Content published on the Platform or the Originals offered for sale or sold.
9.2. Trademarks
The Member may not use SUBS' Trademarks (e.g. for marketing purposes or in adverting material) without SUBS' prior written consent.
9.3. Infringement of SUBS' IP Rights
The Member shall inform SUBS without undue delay, if the Member becomes aware of any infringement or threatened infringement of any of SUBS' IP Rights.
10. Fees
10.1 In general, SUBS renders the Services to the Members free of charge. However, in case of a sale of Originals, the selling Member owes SUBS a fee of 10% of the sales price such selling Member has agreed on with the buying Member (the "Commission Fee").
10.2. In addition, in each calendar month in which a Member sells at least one Original, such selling Member owes SUBS a fixed fee of EUR 5 (the "Fixed Fee" and, together with the Commission Fee, the "Fee").
⚠️ Please note the Fixed Fee DOES NOT APPLY while SUBS Originals marketplace is still in beta test.
10.3. In case you want to verify your account as a real person, we offer you a third party integration. While the verification is completely optional and not necessary to use the platform, for the verification and approval process in accordance with section 2.2 above, the verified and approved Member owes SUBS a one-time fee of EUR 3.96 (the "Verification Fee").
10.4. In addition, in case of each resale of a purchased Original by a Collector, such selling Collector may owe the original Creator and, as the case may be, the Co-Creator a fee ranging from 0% to 85% of the sales price ("Royalty Fee") if the Creator determined that such Royalty Fee shall apply when creating the Original. Such Royalty Fee, if any, is visible on the Original's page.
10.5. In addition, payment provider fees may be charged separately by the respective payment provider and are therefore added to the general fee as a 3% flat rate.
10.6. The Fee becomes due as soon as soon the selling Member and the Collector have validly entered into a purchase agreement. The Commission Fee is automatically deducted from the sales price of each sold Original. The Fixed Fee is automatically deducted from the sales price of the first Original sold in a calendar month.
10.7. The Verification Fee becomes due upon successful completion of the verification and is automatically deducted.
10.8. The Royalty fee becomes due as soon as the reselling Collector and purchasing Collector have entered into a purchase agreement and is automatically deducted from the sales price of the resold Original.
11. Data Protection
SUBS and the Member process personal data solely in accordance with SUBS' Privacy & Cookie Policy [LINK].
12. Indemnification
The Member hereby undertakes to fully compensate and indemnify SUBS for and against any and all damages, loss, costs and expenses, including indirect and consequential damages, loss of profits, interest, penalties and reasonable attorney's fees incurred or sustained by SUBS due to Member's non-compliance with the Platform Terms of Use, the Privacy & Cookie Policy [LINK], the SUBS Community Guidelines [LINK], or any applicable laws and regulations.
13. Liability
13.1. SUBS is liable without limitation for (i) damages from injury to life, body or health caused intentionally or as a result of negligence and (ii) damages caused by willful misconduct or with gross negligence.
13.2. Any other liability (contractual and non-contractual) of SUBS is excluded.
14. Term and Termination
14.1. Term
These Platform Terms of Use have been entered into for an indefinite period and may be terminated by either Party at any time.
14.2. Early Termination
These Platform Terms of Use may be terminated early as follows:
a) by either Party with immediate effect:
i. upon or after the bankruptcy, insolvency, dissolution or winding up of the other Party; or
ii. upon or after the breach of any material provision of these Platform Terms of Use by the other Party, if the breaching Party has not cured such breach within twenty business days after written notice thereof by the non-breaching Party.
b) by SUBS with immediate effect if the Member is in default, after having been reminded once by SUBS or by any third party designated by SUBS, of payment of Fees or the Verification Fee or of a portion of Fees or the Verification Fee.
c) by SUBS with two months' notice if a change of ownership or control in the Member occurs.
14.3. Effect of termination
The termination of these Platform Terms of Use does not affect ongoing obligations (e.g., the payment of due Fees by the Member).
14.4. Form
Any termination of these Platform Terms of Use shall be in writing or email to the following addresses:
If to SUBS:
Subs GmbH, Bavariaring 7, 80336 Munich, info@subs.tv
If to Member:
To the name and address or email address specified during registration or stored in the user profile.
Further, these Platform Terms of Use shall be deemed to be terminated if a Member closes its account in the App.
15. Force Majeure
15.1. Any delay or failure of either Party to perform its obligations under these Platform Terms of Use will be excused to the extent that a Party is unable to perform directly as the result of an event or occurrence beyond the reasonable control of such Party, without such Party's fault or negligence (a "Force Majeure Event"), including, if applicable, coercive actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage and labor problems (including lockouts, strikes and slowdowns), provided that written notice of such Force Majeure Event (including the anticipated duration of the delay) must be given by the affected Party to the other Party as soon as possible (but in no event more than ten business days after the Force Majeure Event occurs). For the avoidance of doubt, a Force Majeure Event does not include a change in economic or financial circumstances.
15.2. The Party whose performance is affected by a Force Majeure Event will use reasonable best efforts to end the force majeure situation and avoid its consequences and resume the performance of its obligations with utmost dispatch when the force majeure situation ceases. The payment of any amount due under these Platform Terms of Use will not be excluded or delayed due to force majeure.
15.3. The Parties will discuss in good faith alternative ways of performing these Platform Terms of Use satisfying both Parties. In case no agreement thereon is reached within 60 business days, and if the Force Majeure Event compromises the entire Agreement, either Party may terminate these Platform Terms of Use and such termination will become effective upon receipt of a written notice.
16. No Partnership
Nothing in these Platform Terms of Use is intended to or shall be interpreted to create a partnership between the Parties.
17. Severability
If any part of these Platform Terms of Use is found to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect the validity of the remaining parts of the Platform Terms of Use. Furthermore, the Parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the invalid, illegal or unenforceable provision which as nearly as possible validly gives effect to their intentions as expressed in these Platform Terms of Use.
18. No Transfer / Assignment
The Member shall not transfer or assign these Platform Terms of Use or any rights and duties thereunder to any third parties without the prior written consent of SUBS.
19. Governing law and Venue
19.1. These Platform Terms of Use shall be governed by, and construed in accordance with, the substantive laws of Switzerland, excluding its rules on conflict of laws and excluding international treaties (in particular, the UN Convention on the International Sale of Goods).
19.2. Any dispute arising out of or in connection with these Platform Terms of Use, including disputes on its conclusion, binding effect, amendment and termination, shall be exclusively resolved by the ordinary courts of the City of Zurich, Switzerland, venue being Zurich 1.
Last updated 14 July 2021