1.1 The Österreichische Galerie Belvedere is a Scientific Institution under Austrian Public Law (“Wissenschaftliche Anstalt öffentlichen Rechts”) with its registered office in Vienna and its business address at Prinz Eugen-Straße 27, 1030 Vienna (hereinafter the “Belvedere“).
1.2 These Terms of Service (“ToS”) apply to the use of the website thekiss.art as operated and provided by the Belvedere (the “Website”) and the purchase of “The Kiss” NFTs through the Website.
1.3 The Belvedere offers for sale a digital reproduction of "The Kiss" by Gustav Klimt as a series of non-fungible tokens (“The Kiss NFT(s)“). Each The Kiss NFT is unique and not reproducible. The Belvedere uses state-of-the-art technology to divide the digital reproduction of "The Kiss" by Gustav Klimt into a 100x100 grid and breaks down the artwork into 10.000 (ten thousand) high-quality resolution pieces to be minted as NFTs. Each The Kiss NFT represents one unique piece of the 10,000 pieces collection.
2. Use of the Website
2.1 The Website is operated by Belvedere. The Website can generally be viewed without registration.
2.2 The Website and any services provided over the Website are provided “as is” and “as available” without warranty of any kind.
2.3 You may not use the Website for any illegal or unauthorized purpose nor may you, in the use of the Website, violate any laws in your jurisdiction (including but not limited to copyright laws).
3. Whitelisting Phase
3.1 The possibility to purchase “The Kiss NFTs” is preceded by the Whitelisting Phase. Whitelisting means that you have the possibility to show your interest in purchasing “The Kiss NFTs” by providing your e-mail-address and Ethereum wallet address on the Website.
3.2 Whitelisted users will have the chance to receive prioritized offers to purchase the “The Kiss NFTs” when the Minting starts. If the number of whitelisted users exceeds the number of “The Kiss NFTs” available for purchase, whitelisted users will be chosen to received offers at random.
3.3 The Whitelisting Phase commences on Wednesday, 26 January 2022, 00:00am (CET), and ends on Wednesday, 9 February 2022, 12:00am (CET).
3.4 In the Whitelisting Phase, you will have the option to show your interest in purchasing up to 5 “The Kiss NFTs”.
4. Purchase of “The Kiss NFT”
4.1.1 The purchase of “The Kiss NFT” is only possible after successful registration on the Website. Registration requires the verification of your e-mail address. By confirming your e-mail address, you also agree to these ToS.
4.1.2 Registration on the Website is only permitted to natural persons, provided they have reached at least the age of majority in your state or province of residence.
4.1.3 Registration on the Website must be done by truthfully providing your full name. The user is obligated to update his personal data before purchasing “The Kiss NFT”. Registration with incorrect data is not permitted and may lead to exclusion from the “The Kiss NFT” purchase phase. Belvedere reserves the right to delete accounts created with one-time email addresses (so-called "disposable email addresses"). The user is liable for the consequences of providing incomplete or incorrect information.
4.1.4 A person may only register once as a user on the Website and confirms with the registration that he/she is not yet registered.
4.1.5 You have no right to purchase “The Kiss NFT”. The Belvedere has the right to refuse the sale of “The Kiss NFT” to you without giving reasons. All data entered up to this point will be deleted by Belvedere.
4.2 Whitelisted users
4.2.1 As a whitelisted user, if you receive a prioritized offer to purchase “The Kiss NFTs” for the price indicated in this offer, you will have 24 hours to accept such offer. The offer will terminate after 24 hours, and you will have no option to receive another prioritized offer for the purchase of “The Kiss NFTs”.
4.2.2 You have no right to purchase one or more specific “The Kiss NFTs”. Instead, if you purchase “The Kiss NFTs”, you will be allocated up to 5 “The Kiss NFTs” at random.
4.3 Non-whitelisted users
4.3.1 Non-whitelisted users will have the chance to purchase “The Kiss NFTs” in case not all of the 10.000 “The Kiss NFTs” were sold to whitelisted users. Section 4.2.2 applies mutatis mutandi.
4.4 Minting and issuing of “The Kiss NFTs”
4.4.1 The Belvedere is the issuer of "The Kiss” NFTs. “Mint” or “Minting” „The Kiss NFTs” is referring to you, as the user, buying „The Kiss NFTs”. “The Kiss NFTs” will be minted and issued as of Thursday, 10 February 2022, 00:00am (CET).
4.4.2 “The Kiss NFTs” will only be issued to users having purchased and paid for the number of “The Kiss NFTs” within 24 hours after having received a purchase offer.
4.4.3 “The Kiss NFTs” will be transferred to the Ethereum wallet address you indicated on the Website. The Belvedere has no obligation to verify your Ethereum wallet address and shall assume no liability whatsoever resulting from an incorrect Ethereum wallet address. By transferring the purchased “The Kiss” NFT to the Ethereum wallet address provided by you on the Website, the Belvedere has fulfilled its obligation to issue “The Kiss NFTs” to you.
5. No statutory right to withdraw from the contract
5.1 Once minted and issued, your “The Kiss” NFTs are subject to price fluctuations on trading platforms and other markets. Therefore, you have no statutory right to withdraw from the contract for the purchase of your “The Kiss” NFTs.
6. Ownership over “The Kiss NFTs” and responsibility for the user’s wallet
6.1 When you purchase „The Kiss NFTs”, you own a specific fraction of the digitalized artwork. The ownership is transferred to you on the Ethereum blockchain for the individual piece of art. Each „The Kiss NFT” is marked with a unique number and is an NFT on the Ethereum blockchain. Ownership of the NFT is ruled entirely by the smart contract and the Ethereum network terms.
6.2 Users are solely and entirely responsible for the safety and management of their own private Ethereum wallets and validating all transactions and contracts generated following the purchase of “The Kiss NFTs”.
6.3 Since the „The Kiss NFT” smart contract runs on the Ethereum network, there is no possibility to undo, reverse, or restore any transactions involving “The Kiss NFTs”.
7. License to use „The Kiss NFT”
7.1 Subject to your continued compliance with these ToS and contingent on the full payment of the purchase price, the Belvedere grants you an exclusive, worldwide, indefinite, irrevocable, non-sublicensable and transferable license to use the „The Kiss NFT(s)” purchased by you (the “License”). In particular, you are allowed to make available your „The Kiss NFT” in your wallet, to show it in metaverse galleries, download it or print it. You are also allowed to print your certificate provided by Belvedere. „The Kiss NFTs” do not grant any rights to the analogue work of art.
7.2 Ownership of the „The Kiss NFTs” you purchased gives you the right in return for payment of an additional fee as indicated on the Website to attach your name (and the name of another person, if you wish so) on the Website relating to your „The Kiss NFTs”. The entry may be changed or deleted any time in return for payment of an additional fee as indicated on the Website. The entry does in no way portray the actual ownership status of the corresponding “The Kiss NFT”.
7.3 The License only applies to the extent that you continue to own the „The Kiss NFTs” you purchased. If at any time you transfer ownership of your „The Kiss NFTs” to someone else (gift, resale, inheritance etc), you transfer the License to your rightful successor and your rightful successor will enjoy the same License with the same rights and limitations as granted to you. If you otherwise dispose of your „The Kiss NFTs” for any reason, the License will immediately expire without notice, and you will have no further right to your „The Kiss NFTs”.
7.4 The License terminates immediately and without notice if a sale of a „The Kiss NFTs” is reversed for any reason.
7.5 You are not allowed to modify your „The Kiss NFTs” in any way.
8. Intellectual property rights (IP rights)
8.1 Other than the above granted rights to use the „The Kiss NFTs” purchased by you, all content, information, and materials contained on the Website, including but not limited to trademarks, logos, brands, names, designs, texts, slogans, graphics, pictures, data, software, files, or the overall appearance of the website are the exclusive property of the Belvedere and/or artèQ or their licensors or contract partners. No license to any of these proprietary rights will be granted to you, unless expressly stated in these ToS. You agree not to take any actions that are contrary or to the detriment of these ownership interests.
9. Fees, Payment
9.1 You may pay for your purchase of “The Kiss NFTs” in EUR or in ETH. The purchase price is the price indicated on the Website, including VAT.
9.2 If you choose to purchase a „The Kiss NFTs” through our Website, any financial transactions that you engage in will be processed exclusively by an external payment service provider or through the Ethereum network. The external service provider may charge fees for its service. For payments made through the Ethereum network, you will be charged a GasFee by the Ethereum network.
9.3 The Belvedere will have no insight into or control over any payments or transactions on the Ethereum network. The Belvedere has no ability to reverse any transactions made on the Ethereum network. As a result, we will have no liability to you as the user or any third party for any claims, damages or losses that may occur as a result of any transaction, Mint or purchase that you engage or any other transactions that you conduct through the Ethereum Network.
10.1 For each subsequent sale of a „The Kiss NFT”, the Belvedere shall receive a share of the net sales price in the amount to 10% („Royalties“). The net sales price shall be understood to be the sales price paid by any subsequent purchase of a „The Kiss NFT” without VAT. Any subsequent seller of the NFT must take this into account when reselling a „The Kiss NFT” and inform the purchaser accordingly.
11.1 You have statutory warranty rights in accordance with the applicable law.
12. No guarantees or future promises
12.1 You agree that your purchase of a „The Kiss NFT” from our initial launch of 10.000 NFTs is all you are guaranteed to receive with your initial purchase, whether through primary or secondary channels. Any future benefits are ancillary to this purchase and not to be taken into consideration with your initial purchase. You agree that you are not relying on any future commitments by the Belvedere and/or artèQ in using this Website and purchasing “The Kiss NFTs”.
12.2 „The Kiss NFTs” were created purely as collectibles, not as investment vehicles or substitutes for cryptocurrency. We make absolutely no promise or guarantee that „The Kiss NFTs” will subsequently retain monetary value in fiat, cash or cryptocurrency.
13.1 Belvedere tries to ensure the accuracy of the information displayed on this Website. All details and information on this Website are for non-binding general information only and are provided without any guarantee.
14. Data protection
14.1 The processing of your personal data is carried out in strict compliance with the applicable data protection regulations. You can find more information on this in our data protection declaration under https://thekiss.art/s/privacy.html
15. Final provisions
15.1 Applicable law. These ToS and any agreement concluded between Belvedere and the user for the purchase of a „The Kiss NFT” as well as any dispute arising out of or in connection to this relationship shall be governed by Austrian law with the exclusion of its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods.
15.2 Jurisdiction. Any dispute arising out of or in connection to these ToS or the agreement concluded between Belvedere and the user for the purchase of a „The Kiss NFT” are subject to the jurisdiction of the appropriate court in 1010 Vienna except for a claim against a consumer, in which case the appropriate court at the consumer’s domicile or habitual residence shall have jurisdiction.
15.3 The place of performance is Vienna.