Urknall AG, domiciled in Zurich, Switzerland (“Company”) operates the Fyooz application which is available for download on the Apple App Store and the Google Play Store and can be accessed via web browser (“Application“). The Application provides a platform and a marketplace where individuals from the entertainment, music or sports industry, celebrities, idols, consumer brands or social movements (“Stars“) can be tokenized on the blockchain by qualified sales companies who generate and sale individual blockchain-based Tokens that represent the respective Star in the Application (“Star Tokens”).
I. General Principles Star Token Sale
Ones and Heroes GmbH, domiciled in Zurich, Switzerland (“Seller”) will use the Application to sell Star Tokens (“Star Tokens”) which are created by the Seller with the permission of a third-party (“Star”)who has entered into a Licensing Agreement (“Licensing Agreement”) with the Seller. These Star Tokens Terms (“Terms”), which may be amended from time to time at the Seller’s’s sole discretion, govern the sale of the Star Token as well as the conditions under which individuals and entities (“Users”) are able to participate in this sale (“Star Token Sale”).
The User understands and acknowledges that the Seller may at its discretion and at any time change the name of the Star Tokens and/or its symbol. The Seller shall use all reasonable efforts to ensure that such change of name and/or symbol will not adversely affect the rights of the User or the Star Tokens held by the Users.
The User understands and acknowledges that the Star is entitled to a license fee which is based on the proceeds from the Star Token Sale.
Hereinafter, the Seller discloses the effective arrangements with regards to specific Star Tokens:
YachtyCoin: Miles Parks McCollum (also known as Lil Yachty) will receive a license fee in the to the extent of 50% of the sales proceeds from YachtyCoins, of which he will receive US$50,000 in advance, and 150,000 Fyooz Coins.
Hereinafter, the Seller discloses the effective arrangements with regards to specific Star Tokens:YachtyCoin: Miles Parks McCollum (also known as Lil Yachty) will receive a license fee in the to the extent of 50% of the sales proceeds from YachtyCoins, of which he will receive US$50,000 in advance, and 150,000 Fyooz Coins.
II. Clarification of Roles and Contractual Relationships
By accepting these Terms and participating in the Star Token Sale, the User understands and acknowledges that these Terms are only binding between the User and the Seller and that the Company and the Star are not parties to the Star Token Sale. This means, in particular, that the User does not purchase the Star Tokens from the Company or the Star and that the Company and the Star will not assume any liability with regard to the subject matter described herein.
III. Description of Star Token
1. Technical Description
The Star Tokens are blockchain-based digital information units (“Tokens”) that are built on the ERC20 Token Standard of the Ethereum blockchain and created by one or several smart contract software codes (“Smart Contract System”) that were developed by the Company on behalf of the Seller. The Star Tokens constitute a transferable representation of attributed functions that are specified in the Smart Contract System.
2. Star Token Functionalities
The Star Tokens that are purchased by the User may provide the User with one or more specific access, engagement, or interaction functionalities for products or services as further described in these Terms (“Token Functionalities“). While the Seller can define specific Token Functionalities before the Star Token Sale, the Seller and/or the Star can also do so at a later point in time. This means that the Token Functionalities of the Star Token are not conclusively defined at the time of the Star Token Sale. The User understands and acknowledges that the Seller and the Company have the right to add and remove Token Functionalities at any time at their sole discretion. The User further understands and acknowledges that by purchasing Star Tokens, the User does not purchase the right to make use of Token Functionalities in the future. This means that the User does not have a contractual right to claim any Token Functionalities. Since the addition of Token Functionalities by the Seller is not guaranteed, the User is aware of the fact that the Star Token may not provide the User with any Token Functionalities at all.
2.2. Types of Token Functionalities
The Token Functionalities that might be added to the Star Token by the Seller (if any) can be broadly divided into the following three categories (“Functionality Groups“):
Access Functionalities may enable the User to buy a certain product exclusively, with a discount, or before it will be offered to the general public. In many of these cases, the Star Token will allow the User to participate in a loyalty program.
Engagement Functionalities may enable the User to participate in polls or votes with regard to a decision to be made by the Seller or the Star or use other game-design elements and game principles to enable the User to engage with the Star.
Interaction Functionalities may enable User to be informed about certain news or events that are related to the Star (one-way communication) or to directly or indirectly interact with the Star (two-way communication).
The design and configuration of the individual Token Functionalities of the Star Token (if any) will be determined exclusively by the Seller and/or the Star. The Seller may for example determine that the access to a certain Token Functionality is dependent on the number of Star Tokens that are owned by the User. In some cases, Token Functionalities may be used only once per User, whereas in other cases they may be renewed after a certain period of time. Token Functionalities may also provide continuous access to a service. The Seller can further limit the number of available products and services and allocate them to the Users on a “first come, first served” basis.
3. No Ownership, Revenue or Participation Rights
A Star Token does not constitute an investment and is not a security. There are other crypto coins or tokens in the market that either explicitly or implicitly are securities or that are intended to have the characteristics of securities and that promise or that are intended to provide a return to investors in a manner comparable to the types of returns expected by equity investors. The Star Token, however, is not such an investment.The User is expected to purchase and hold the Star Tokens to build a digital connection and immaterial bond with the Star and to get the opportunity to engage with the Star. The User understands and acknowledges that the relationship between the User and Star will always remain on a non-monetary basis. This means that the Star Tokens do not represent or constitute any ownership rights or stake, shares or security or equivalent rights in the Seller or the Company and therefore convey no rights to receive or participate in future profits, revenue streams, proceeds, or other forms of financial gains that are related to the activities of the Star.
The Star Tokens do further not create or confer any enforceable contractual or other obligations against the Company, the Seller or the Star. The User therefore understands and acknowledges that the Star Tokens do not, and shall not be construed to, grant to the User any license or right of any nature with respect to any intellectual property rights, rights of publicity, or equivalent rights in or related to the Star or any of its affiliates.
Further, Users should only purchase tokens in such quantities as will actually be used by such User in the foreseeable future.
THIS DOCUMENT OR ANY OTHER MATERIALS PROVIDED BY THE SELLER OR RELATING TO THE Star TOKEN SALE DO NOT CONSTITUTE A PROSPECTUS OF ANY SORT, IS NOT A SOLICITATION FOR INVESTMENT AND DOES NOT PERTAIN IN ANY WAY TO AN INITIAL PUBLIC OFFERING OR A SHARE/EQUITY OFFERING AND DOES NOT PERTAIN IN ANY WAY TO AN OFFERING OF SECURITIES IN ANY JURISDICTION. NEITHER THIS DOCUMENT NOR ANY OTHER MATERIALS HAVE BEEN (OR WILL BE) REGISTERED AS A PROSPECTUS WITH ANY GOVERNMENTAL AUTHORITIES.
4. Purchase and Allocation of Star Tokens
4.1. Star Token Supply and Pricing
The Seller has created a defined amount of Star Tokens (“Star Token Supply”) on the Application which were initially allocated to the Seller. The Total Star Token Supply is fixed, which means that the Seller will not be able to create any additional Star Tokens after the Star Token Sale. The User understands and acknowledges that the Star Token Supply may exceed the number of Star Tokens available for purchase during the Star Token Sale. The determination of the Star Token sale price during the Star Token Sale (“Star Token Price”) is up to the seller and not negotiable. While the Seller may communicate a certain Star Token Price prior to the beginning of the Star Token Sale, the Seller is free to change the price for a Star Token at any time and at its sole discretion.
4.2. Purchase of Star Tokens
To be eligible to participate in the Star Token Sale, all Users are required to create an account on the Application (“User Account”). The actions taken by the User on the Application are subject to the terms and conditions of the Company (“Fyooz Terms”). The Seller will not assume any liability for the User’s use or the proper functioning of the Application.
Currently, Users from the following countries aren’t able to participate in the Star Token Sale: Afghanistan, Albania, Belarus, Bosnia & Herzegovina, Burundi, Central African Republic, Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Ethiopia, Germany, Guinea, Guinea-Bissau, Iran, Iraq, Lebanon, Liberia, Libya, Mainland China, Myanmar (Burma), North Korea, Republic of Macedonia (FYROM), Serbia, Somalia, South Sudan, Sri Lanka, Sudan, Syria, Thailand, Trinidad & Tobago, Tunisia, Uganda, Ukraine, United States of America (USA), Venezuela, Yemen, and Zimbabwe.
To purchase Star Tokens during the Star Token Sale, the User can use any of the means of payments that are listed in the Application. The purchase of Star Tokens is not subject to any fees. This means that the entire purchase price paid by the User (“Purchase Price”) will be credited to the purchase of Star Tokens.
Depending on the popularity of the Star Token Sale, it is possible that demand for the Star Token may exceed the available supply. The maximum number of Star Tokens that can be purchased by each User during the Star Token Sale can therefore be limited by the Seller at any time at its own discretion. The User understands and acknowledges that the number of Star Tokens that are effectively purchased by the User during the Star Token Sale is not guaranteed until the final allocation of Star Tokens to the User as described in Section 4.3 below.
4.3. Allocation of Star Tokens
Once the Star Tokens have been allocated to the Fyooz Wallet of the User (“User Wallet”), they may be locked for up for a specific time after the Star Token Sale. Therefore, the User understands and acknowledges that the payment of the Purchase Price may not entitle the User to transfer the Star Tokens until a later period in time.
4.4. No Refund of Purchase Price
The User understands and acknowledges that all Star Token sales are final and that the payments made during the Star Token Sale are non-refundable. If the demand for the Star Token exceeds the available supply, the excess Purchase Price will be automatically sent back to the User’s means of payment that was used to purchase the Star Tokens. Subject to the above, by participating in the Star Token Sale, the User understands and acknowledges that the User has no right to request a refund for any reason.
5. Access to Token Functionalities
5.1. Requirement to Use Application
The individual Token Functionalities that are defined and configured by the Seller and/or the Star are not visible on the Ethereum blockchain but stored on the Application operated by the Company where the management of the Token Functionalities takes place. This means that the Token Functionalities of the Star Token (if any) are only available if the Star Tokens are held on the User Wallet. The User can see all available Token Functionalities on his User Account.
5.2. Functionality Access
While the access to a specific Token Functionality must always happen via the Application operated by the Company, it is up to the Seller to define the exact access procedure.
5.3. No Transfer of Star Token to Access Token Functionalities
When a User accesses a Token Functionality as described above, the Star Tokens will not be burned, transferred, consumed or otherwise exchanged against the Token Functionality but will remain on the User Wallet. This means that the Star Tokens will remain with the User unless the User decides to transfer the Star Tokens to another Ethereum address or sell it on the secondary market as further described in Section 6 below.
6. No Guaranteed Tradability
Once the Star Token Sale is concluded, the Star Token may be added to the Fyooz exchange platform (“Fyooz Exchange“). The Fyooz Exchange is a secondary market trading platform for Star Tokens operated by the Company that is integrated into the Application and that enables Users to exchange Star Tokens for Fyooz Coins. In order to use the Fyooz Exchange, the User may be required to add additional personal information to his User Profile and accept the corresponding terms of the Company (“Fyooz Exchange Terms“).
As further described in the Fyooz Exchange Terms, the Company does not guarantee the tradability of any particular Star Token on the Fyooz Exchange. The User understands and acknowledges that the User does not purchase the right to trade the Star Token on the Fyooz Exchange by participating in the Star Token Sale. The Seller and the Company do not assume any liability regarding to tradability of the Star Token.
The User understands and acknowledges that buying and selling of Star Tokens on third-party platforms may violate applicable laws and regulations and is not approved by the Seller. The User also understands and acknowledges that the Seller disapproves the support of such activities by the User (e.g. by providing Star Tokens for crypto exchange liquidity). The Seller reserves the right to take appropriate measures against such activities.
7. Removal of Star Tokens from Application
The User understands and acknowledges that the Seller and/or the Company reserve their right to temporarily or permanently remove the Star Token from the Application if such action is reasonably required to comply with existing contractual or regulatory obligations (“Token Removal”). In case of a Token Removal, the User may lose the ability to access certain Token Functionalities that have been added to the Star Token by the Seller. Furthermore, the User may lose the ability to trade the Star Token on the Fyooz Exchange.
Since the Star Tokens are sold on the Ethereum blockchain, their existence will not be affected by a Token Removal. This means that the User will retain the ability to transfer the Star Tokens to another Ethereum address outside of the Application.
IV. Representations and Warranties of User
By accepting these Terms, participating in the Star Token Sale and purchasing Star Tokens from the Seller, the User represents and warrants that:
a) the User is not a citizen or resident of the United States of America, nor a person subject to US taxation based on the Foreign Account Tax Compliance Act (FATCA), nor of any country whose legislation conflicts with the allocation of Star Tokens including but not limited to the list defined in Section III. 4.2 above;
b) the User is not a resident of, citizen of or located in a geographic area that is subject to UN-, US-, EU-, Swiss or any other sovereign country’s sanctions or embargoes;
c) the User is not being listed, or associated with any person or entity being listed, on any of the US Department of Commerce’s Denied Persons or Entity List, the US Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, the US Department of State’s Debarred Parties List, the EU Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions or the Swiss SECO’s Overall List of Sanctioned Individuals, Entities and Organizations;
d) any funds used to pay the Purchase Price are (i) good, clean, clear and are of non-criminal origin; (ii) completely free and clear of any liens or encumbrances of any kind of any rights of third-party interests; and (iii) have no origins that may be connected to any breach of money laundering regulations whatsoever, as defined in the jurisdiction of origin, or internationally;
e) the User is of a sufficient age to legally obtain Star Tokens in the User’s jurisdiction and does not act on behalf of any third party;
f) the User is not purchasing Star Tokens for the purpose of speculative investment but to build a digital connection with the Star and to use the Star Tokens as further described herein;
g) the User will abstain from buying and selling Star Tokens on third-party platforms;
h) the User understands that the addition of Token Functionalities to the Star Token is not guaranteed and that the Star Token might consequently not provide the User with any Token Functionalities at all;
i) the User understands that he may lose the ability to access certain Token Functionalities or trade the Star Token on the Fyooz Exchange in case of a Token Removal;
j) the User understands that the Star Tokens do not represent or constitute any ownership rights or stake, shares or security or equivalent rights in the Seller or the Company and do not convey any rights to receive or participate in future profits, revenue streams, or proceeds that are related to the activities of the Star;
k) the User understands that the Star Tokens do not create or confer any enforceable contractual or other obligations against the Company, the Seller or the Star and that the Star Tokens do not grant to the User any license or right of any nature with respect to any intellectual property rights, rights of publicity, or equivalent rights in or related to the Star or any of its affiliates;
l) the User understands that with regards to Star Tokens, no market liquidity (including the existence of a marketplace where Star Tokens can be transferred) may be guaranteed and the value of Star Tokens (if any) may over time experience extreme volatility or depreciate in full;
m) the User waives the right to participate in a class action lawsuit or a class wide arbitration against the Seller, the Company, the Star or any entity or individual involved in the Star Token Sale or the operation of the Application;
n) the User will not to hold the Seller, the Company or any associated party liable for any tax liability associated with the User’s participation in the Star Token Sale.
The User understands and accepts the various risks in connection with his participation in the Star Token Sale and the purchase of Star Tokens as set forth above and hereinafter. In particular, but not concluding, the User understands the following risks:
• Risk of Software Weaknesses: The User understands and accepts that the Smart Contract System concept, the underlying software application, and software platform (i.e. the Ethereum blockchain) is still in an early developmental stage and unproven. The User acknowledges that there is an inherent risk that the software could contain weaknesses, vulnerabilities or bugs causing, inter alia, a complete loss of the Star Tokens.
• Risk of Transaction Verification: The User understands and accepts that the allocation of Star Tokens to the User after the Star Token Sale and/or any subsequent transaction of Star Tokens may be delayed or not be executed due to the transaction volume on the Ethereum blockchain, mining attacks and/or similar events.
• Risk of Upgrade to Ethereum 2.0: The User understands and accepts that the Ethereum community is currently planning an upgrade of the Ethereum blockchain to Ethereum 2.0 and that as part of this upgrade, the currently existing Ethereum blockchain may suffer from extreme setbacks which may cause, inter alia, a complete loss of the Star Tokens.
• Regulatory Risk: The User understands and accepts that the blockchain technology allows new forms of interaction and that it is possible that certain jurisdictions will apply existing regulations on, or introduce new regulations addressing, blockchain technology based applications, which may be contrary to the current setup of the Smart Contract System and which may, inter alia, result in a Token Removal or a substantial modifications of the Star Token, including the complete loss of Star Tokens for the User.
• Risk of Legal Qualification: The User understands and accepts that the legal structure of Tokens is relatively new and that no relevant prejudices are available. Therefore, the risk remains that a court in any jurisdiction may come to the conclusion that the Star Token Sale or the Star Token are in violation of statutory law.
• Third Party Risks: The Seller collaborates with third parties such as the Company to manage and operate the Star Token Sale. The Seller has no visibility into, or possibility to control the software or mechanisms used by such third parties and cannot verify or guarantee the proper functionality of the third-party software or operations. The User understands and accepts in particular that the operation of the Application may be discontinued for any reasons whatsoever and that the Star Token may consequently lose its intended usability.
• Risk of Loss of Private Key: The User understands and accepts that Star Tokens that are removed from the User Wallet can only be accessed by using an Ethereum wallet with a combination of User’s account information and private key. The User understands and accepts that if his private key gets lost or stolen, the Star Tokens will be unrecoverable and will be permanently lost.
• Risk of Theft: The User understands and accepts that the Smart Contract System concept and the underlying Ethereum blockchain, including the User Wallet, may be exposed to attacks by hackers or other individuals that could result in theft or complete loss of Star Tokens.
• Risk of Ethereum Mining Attacks: The User understands and accepts that, as with other cryptocurrencies, the blockchain used for the Smart Contract System is susceptible to attacks, including but not limited to denial of service attacks, exploits of consensus nodes, and byzantine attacks on the consensus nodes. Any successful attacks present a risk to the Smart Contract System, expected proper execution and sequencing of Star Tokens transactions, and expected proper execution and sequencing of contract computations.
• Risk of Depreciation: The User understands and accepts that with regard to Star Tokens, no market liquidity may be guaranteed and that the value of Star Tokens over time may experience extreme volatility or depreciate in full.
The User understands and acknowledges that the risks listed above are borne exclusively by the User, that the User cannot pass on the consequences of a realization of these risks to the Seller, the Company, the Star or any other third party and that the Purchase Price will not be refunded to the User if any of these risks are realized.
The User bears the sole responsibility to determine if his participation in the Star Token Sale and or the purchase of Star Tokens has any tax implications for the User. By purchasing, holding, or using Star Tokens, and to the extent permitted by law, the User agrees not to hold the Seller, the Company, the Star or any other third party liable for any tax liabilities arising from the purchase, ownership or use of Star Tokens.
VII. No Warranty
The User understands and expressly accepts that there is no warranty whatsoever on Star Tokens, the Smart Contract System and/or the success of the Star Token Sale, expressed or implied, to the extent permitted by law, and that the Star Tokens are obtained at the sole risk of the User on an “as is” and “under development” basis and without, to the extent permitted by law, any warranties of any kind, including, but not limited to, warranties of title or implied warranties of merchantability or fitness for a particular purpose.
VIII. Exclusion of Liability
The User acknowledges and agrees that, to the extent permitted by any applicable law, the User will not hold the Seller, the Company, the Star or any developers, auditors, contractors or founders of the Seller or the Company liable for any and all damages or injury whatsoever caused by or related to the use of, or the inability to use Star Tokens under any cause or action whatsoever of any kind in any jurisdiction, including, without limitation, actions for breach of warranty, breach of contract or tort (including negligence) and that the Seller, the Company and the Star shall not be liable for any indirect, incidental, special, exemplary or consequential damages, including for loss of profits, goodwill or data, in any way whatsoever arising out of the use of, or the inability to use Star Tokens.
The User agrees that if any portion of these Terms is found illegal or unenforceable, in whole or in part, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect.
By participation in the Star Token Sale and purchasing Star Tokens from the Seller, no form of partnership, joint venture or any other similar relationship between the User on the one hand and the Seller, the Company and the Star on the other hand is created.
• These Terms contains the entire agreement between the User and the Seller with regard to the subject matter regulated herein and supersede all previous written or oral communication between the User and the Seller as well as any public statements about the Star Token Sale made by anyone in the past, present and future.
• The User shall have no right to assign or transfer its rights and obligations under these Terms, either as a whole or in part, to any third party without the prior written and express consent of the Seller. The User and the Seller agree that any assignment or transfer in violation of this Section shall be null and void.
To the fullest extent permitted by law, the User waives the right to participate in a class action lawsuit or a class-wide arbitration against the Seller, the Company, the Star or any individual involved in the Star Token Sale or the operation of the Application.
These Terms shall be governed by and construed in accordance with Swiss law, excluding the Swiss conflict of law rules. The application of the United Nations Convention for Contracts for the Sales of Goods is hereby expressly excluded.
Any dispute, controversy or claim arising out of or in connection with these Terms or the breach, termination, existence, legal competence or invalidity thereof, shall be exclusively settled by the ordinary courts of Zurich, Switzerland.