Terms & Conditions

Terms & Conditions for E/Scapes by Pullman Exhibition 2022

Background

The following terms and conditions govern your rights and obligation as the person that Owns the Purchased NFT. In the event the Purchased NFT is transferred to a new owner, these T&Cs will apply to the new owner of the Purchased NFT.

These terms and conditions are between:

Mooning Agency Pty Ltd (ACN 656 190 608) (hereinafter referred to as “we”, “us” or “our”); and
you, the person that Owns the Purchased NFT (“you” or “your”).

By purchasing a Purchased NFT you agree to be bound by these terms and conditions. If you do not agree to these terms and conditions, you should stop browsing any Assets and not purchase any associated NFT.

1. Definitions

“AAPC” means AAPC Limited, its direct and indirect present and future parent, subsidiary and affiliate entities, and their respective vendors and licensors.

“Artist” means the person that created the Asset.

“Asset” means any art, design, and drawings that may be associated with the Purchased NFT.

"NFT" means any non-fungible token that is blockchain-tracked, including those conforming to the ERC-721 standard.

“Online Gallery” means the online gallery for the E/Scapes by Pullman Exhibition 2022 at the following address https://escapesbypullman.com/.

“Own” means an NFT that you have purchased or otherwise rightfully acquired from a legitimate source. Proof of purchase will be recorded on the relevant blockchain.

“Purchased NFT” means an NFT that is originally sold pursuant to the E/Scapes by Pullman Exhibition 2022 and that you Own.

2. Primary sale via the Online Gallery

1. If you are purchasing a Purchased NFT directly from us via the Online Gallery, you are required to set up a registered user account to use the Online Gallery on the following basis:

you can register a user account by providing us with a username, password, email address and such other details as we reasonably require from time to time.

(a) you will be required to create a unique password to obtain access to your user account. You are solely responsible for maintaining the confidentiality of your password and undertake not to allow the security of your user account to be compromised through misuse of your password.

(b) you must immediately notify our customer support team of any suspected misuse of your password.

2. If you are purchasing a Purchased NFT directly from us via the Online Gallery you agree that:

(a) by making a bid you are making a non-revocable offering to purchase a Purchased NFT on and subject to these terms and conditions. You agree that we have the right to accept or reject an order for any reason at any time, and all orders are subject to availability.

(b) each order accepted by us is a separate and binding agreement between you and us in relation to the purchase of the Purchased NFT.

(c) when we receive an order, you will receive a confirmation email acknowledging your order. We will only be in a position to accept your order once payment has been approved and we have debited the payment card.

(d) to purchase products via the Online Gallery, we accept Visa, Mastercard, American Express. We use third party payment processors to process all credit card payments and do not collect or record any credit card details provided by you when making purchases via the Online Gallery. We are not responsible for any credit card fees or surcharges (including any currency conversion fees) that your bank may charge.

(e) after we accept your order relating to Purchased NFTs, we will ensure a digital copy of the Asset and details of the NFT representing ownership of that Asset is sent to your nominated Ethereum wallet address (within 7 days of receipt of such details). It is your responsibility to set up the Ethereum wallet and provide us correct details. In the event the Ethereum wallet details are not provided we will be under no obligation to ensure transfer the Purchased NFT. In the event Ethereum wallet details provided are incorrect, we will not be liable to correct or remedy any incorrect transfer of the Purchased NFT.

(f) the Online Gallery does not store, send, or receive NFTs. All NFTs sold via the Online Gallery are maintained on the Ethereum blockchain. The delivery of the Purchased NFT occurs via the Ethereum blockchain.

(g) subject to any overriding Australian Consumer Law which cannot be excluded by these terms and conditions, you agree that Purchased NFT are strictly non-refundable.

(h) you have read our privacy statement available on the Online Gallery and to the extent permitted by law, you consent to how we collect, handle and use your personal information in accordance with our privacy statement.

3. Ownership

You acknowledge and agree that the Artist owns all intellectual property rights in relation to the Purchased NFT. The rights that you have in and to the Asset are limited to those expressly stated in clause 4 of these terms and conditions. The Artist reserves all rights in and to the Asset not expressly granted to you in clause 4 of these terms and conditions.

4. Terms of Asset licence

1. Subject to your continued compliance with these terms and conditions, the Artist grants you a worldwide, non-exclusive, non-transferable, royalty-free licence to display the Asset for your Purchased NFTs, solely for the following purposes:

(a) for your own personal, non-commercial use;

(b) as part of a marketplace that permits the purchase and sale of your NFTs, provided that the marketplace cryptographically verifies each NFT owner’s rights to display the asset for their NFTs to ensure that only the actual owner can display the asset; or

(c) as part of a third party website or application that permits the inclusion, involvement, or participation of your NFTs, provided that the website/application cryptographically verifies each NFT owner’s rights to display the asset for their NFTs to ensure that only the actual owner can display the asset, and provided that the asset is no longer visible once the owner of the Purchased NFT leaves the website/application.

2. The licence granted in this clause applies only to the extent that you continue to Own the applicable Purchased NFT. If at any time you sell, trade, donate, give away, transfer, or otherwise dispose of your Purchased NFT for any reason, the licence granted in clause 4 will immediately expire with respect to those NFTs without the requirement of notice, and you will have no further rights in or to the Asset for those NFTs.

5. Restrictions

1. You may not do the following with the Purchased NFT:

(a) modify the design of the Asset associated with your Purchased NFT in any way;

(b) use the Asset associated with your Purchased NFTs to advertise, market, or sell any third party product or service;

(c) sell, distribute for commercial gain or otherwise commercialise merchandise that includes, contains, or consists of the Asset associated with your Purchased NFTs in whole or in part, or any derivative thereof;

(d) use the Asset associated with your Purchased NFTs in connection with images, videos, or other forms of media that depict intolerance, hatred, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others;

(e) reverse engineer, duplicate, modify reproduce or otherwise create any derivative work from the Asset associated with your Purchased NFT in whole or in part in any way, including, without limitation, the shapes, designs, drawings, attributes, or colours;

(f) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Asset associated with your Purchased NFTs; or

(g) otherwise utilise the Asset associated with your Purchased NFTs for your or any third party’s commercial benefit.

6. Resale of Purchase NFT

1. You may re-sell a Purchased NFT via recognised third party digital marketplaces in accordance with the requirements of clause 4.

2. Any re-sale of a Purchased NFT will be subject to your payment to us of a commission of a designated % of the total re-sale price of the Purchased NFT.

3. In respect of the E/Scapes by Pullman Exhibition 2022, the applicable commission for the Purchased NFTs is:

(a) 5% of the total re-sale price of the Purchased NFT, in respect of Purchased NFTs that are associated with Assets created by the Artist Candy Ng; and

(b) 0% of the total re-sale price of the Purchased NFT, in respect of Purchased NFTs that are associated with Assets created by the Artist Violetta Valiukevich, Melissa Vincent or Chern’ee Sutton.

4. You acknowledge that we have no affiliation with any third party digital marketplaces and are not responsible for the functionality or authenticity of any third party digital marketplace.

7. Disclaimer of warranties and limitation of liability

1. All Purchased NFTs are provided without representation, warranty or guarantee of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, we, the Artist and AAPC disclaim all representations, warranties or guarantees, express or implied in relation to the use of the Online Gallery and the purchase of the Purchased NFTs.

To the fullest extent permissible by applicable law, in no event shall we, the Artist or AAPC be liable to you for any personal injury, lost profits, property damage, cost of substitute goods or services, work stoppage, loss of data, loss of goodwill, 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 Asset/Purchased NFT or your use of the Online Gallery.

2. 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.

3. In no event shall the total aggregate liability of us, AAPC and the Artist exceed the total sum paid directly by you to us for the applicable Purchased NFT. 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. This limitation of liability provision applies worldwide.

8. Assumption of risk

You agree as follows:

(a) there is no guarantee Purchased NFTs will have or retain any value;

(b) neither us, the Artist nor AAPC will be responsible for any of the risks associated with using Internet-native assets;

(d) neither us, the Artist nor AAPC will be responsible for any upgrades made to the blockchain that the Asset and NFT is recorded on that might affect the Asset or NFT in any way; and

(e) neither us, the Artist nor AAPC are responsible for any transaction between you and a third party (e.g. if you obtained the Purchased NFT from a third party on the “secondary market”). None of us shall have liability in connection with any such transaction.

9. Governing Law

These Terms & Conditions and all matters related to them shall be governed by, construed, and enforced in accordance with the laws of New South Wales. Any action related to these terms & conditions and/or any Purchased NFTs shall be brought in the appropriate state or federal court located in Australia. All parties consent to the exclusive jurisdiction and venue of the state or federal courts in Australia for the adjudication of all claims.

10. Changes to Terms & Conditions

Changes to these terms and conditions may be made from time to time. When changes are made, the updated terms and conditions will be available on https://escapesbypullman.com/. The version of these terms and conditions recorded on your Purchased NFT will apply to you.