Flowcarbon Inc. Auction Terms (the “Agreement” or the “Terms”)
TO BE ELIGIBLE TO PARTICIPATE IN THE FLOWCARBON, INC. (“FLOWCARBON”) NFT AUCTION (THE “AUCTION”) YOU MUST SATISFY THE ELIGIBILITY REQUIREMENTS SET FORTH BELOW. BY PARTICIPATING AND BIDDING IN THIS AUCTION, YOU (“PARTICIPANT”) AGREE TO THESE NFT AUCTION TERMS, WHICH ARE A CONTRACT, SO READ THEM CAREFULLY BEFORE PARTICIPATING. WITHOUT LIMITATION, THIS CONTRACT PROVIDES FOR INDEMNIFICATION OF FLOWCARBON BY YOU, A CLASS ACTION AND JURY TRIAL WAIVER, A REQUIREMENT THAT MOST DISPUTES BE SETTLED BY MANDATORY BINDING ARBITRATION, AND A LIMITATION OF YOUR RIGHTS AND REMEDIES. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT PARTICIPATE IN THE AUCTION.
In order to be eligible to participate in the Auction, Participant must (a) be 18 years old or older, or the age of majority in his/her jurisdiction, whichever is greater, (b) have a digital wallet capable of supporting an ERC721 token (“Wallet”) (certain Wallets, such as those offered by Metamask, are available for free), and (c) not reside in an OFAC-sanctioned country or appear on the U.S. Department of the Treasury’s Specially Designated Nationals List (SDN List). Employees and spouses of employees of Flowcarbon, and any other company or individual involved with the design, production, execution or distribution of the Flowcarbon NFTs and the Auction, are not eligible to participate in the Auction.
The subjects of the Auction are certain non-fungible tokens (“NFT(s)”) created by or on behalf of Flowcarbon (“Flowcarbon NFT(s)”). The Flowcarbon NFTs will be exchangeable for certain other NFTs created by or on behalf of Flowcarbon in an amount and at a future time to be determined by Flowcarbon in its sole discretion (this exchange, “Redemption” / “Redeem”).
Participant understands and acknowledges that the Flowcarbon NFTs are pre-minted by Flowcarbon and delivered in accordance with the outcome of the Auction. All Flowcarbon NFT’s and their delivery are provided “as is.”
Participant further understands and acknowledges that each Flowcarbon NFT received via Redemption will vary with respect to appearance, functionality, quantity, rarity, value, and other aspects and attributes, and that a collection of Flowcarbon NFTs received through Redemption of any one Flowcarbon NFT may be materially different than another collection of Flowcarbon NFTs received through Redemption of any other Flowcarbon NFT with respect to appearance, functionality, quantity, rarity, value, and other aspects and attributes. Flowcarbon disclaims any representations or warranties, express or implied, with respect to the appearance, functionality, quantity, rarity, value, and other aspects and attributes of Flowcarbon NFTs.
The Flowcarbon NFTs are not images. They are units of data on the Ethereum blockchain. The image files associated with the Flowcarbon NFTs are not the subjects of the Auction, nor are any rights thereto acquired through purchase of a Flowcarbon NFT or through Redemption (except as described below).
During the Auction Period (defined below), eligible Participants may access the Auction website at mint.flow3rs.io/ (“Auction Site”), and may place a bid on and pay for Flowcarbon NFT(s).
Bidding will begin once the Auction goes live, and bids will be accepted until the Auction Period ends, as set forth herein. The Auction shall begin at 12:00 PM EST on December 13, 2022 and end at 12:00 PM EST on December 16, 2022 (the “Auction Period”). Flowcarbon shall be the official time keeper for the Auction. The Auction Period, including closing time, is approximate, and Flowcarbon reserves the right to close the Auction earlier or later than the scheduled time, as determined in Flowcarbon’s sole discretion. Further, Flowcarbon reserves the right to limit, change, cancel, or relist the Auction, without prior notice, even after bids have been submitted, as determined in Flowcarbon’ sole discretion.
All bidding shall be in Ether. Participant acknowledges that the price of Ether, like other cryptocurrencies, can be volatile. A transfer of Ether in the full bid amount to Flowcarbon is required for Participant to submit an eligible bid. Starting bids must be at least 0.1 Ether. Participants can increase their bid at any time during the Auction Period by transferring additional Ether (for clarity, such additional Ether will be combined with the Participant’s existing bid and not treated as a separate bid).
When bidding in the Auction, Participant agrees that: (a) Participant is making an irrevocable binding offer to purchase Flowcarbon NFT(s), and so may not cancel, retract, or reverse a bid once placed, and if it is a winning bidder, its bid is a legally binding contract to purchase a quantity of Flowcarbon NFTs calculated by dividing the Winning Bid (defined below) by the Clearing Price (defined below), rounded down to the nearest whole integer if necessary (as further described below); and (b) Participant will not take any actions that directly or indirectly manipulate the bid or the bidding process. Participant acknowledges that no shill bidding is permitted.
The three Participants with the highest bids in the Auction will receive an additional Flowcarbon NFT at the close of the Auction. The ten Participants in the Auction with top ten highest bids will receive a signed copy of the Flow3rs book.
Flowcarbon reserves the right to refuse any bid, and may, in its sole discretion, limit or cancel certain quantities purchased per Participant. Flowcarbon reserves the right to limit or prohibit bids that, in its sole judgment, appear to be placed in bad faith.
Flowcarbon, in its sole discretion, shall determine the clearing price per Flowcarbon NFT at the conclusion of the Auction based on the amounts of the bids received during the Auction Period (“Clearing Price”). A winning bid will be a bid that, at the time the Auction closes, is at or in excess of the Clearing Price (“Winning Bid”). A failed bid is a bid that, at the time the Auction closes, is below the Clearing Price (“Failed Bid”).
If Participant submits a Winning Bid, Participant will be sold one or more Flowcarbon NFTs. The number of Flowcarbon NFTs sold will be calculated by dividing the Winning Bid by the Clearing Price, rounded down to the nearest whole integer if necessary. If such rounding down is necessary, Flowcarbon will issue a partial refund equal to the amount rounded down to Participant.
For example: If the Clearing Price is 10 Ether and Participant’s bid is 35 Ether, Participant would be sold 3 Flowcarbon NFTs, and Flowcarbon would refund Participant 5 Ether. If the Clearing Price is 10 Ether and Participant’s bid is 11 Ether, Participant would be sold 1 Flowcarbon NFT, and Flowcarbon would refund Participant 1 Ether.
Failed Bids will be refunded in full.
Participants who submit a Winning Bid will receive their Flowcarbon NFT(s) in their Wallet after the end of the Auction Period. Risks including but not limited to risk of loss of private key(s), hacking/phishing/theft, and regulatory interference transfer to participant immediately upon receipt of any Flowcarbon NFTs, received via Redemption.
Refunds for Failed Bids and partial refunds for Winning Bids, if applicable (as described above), will be transferred to Participants after the end of the Auction Period.
Participant understands and acknowledges that, due to the volatility of the price of Ether in USD, the USD value of Ether refunded, if any, may be different from the USD value of the same quantity of Ether at the time Participant submitted its bid(s), and Flowcarbon is not responsible or liable for any such difference in value.
Participant understands and acknowledges that there may be a delay between the end of the Auction and Flowcarbon’ delivery of Flowcarbon NFTs and refunds as Flowcarbon calculates the Clearing Price, identifies Winning Bids, and takes any other actions it deems necessary prior to delivery of Flowcarbon NFTs and refunds.
Except as permitted herein, no refunds, returns or reimbursements are permitted except with respect to any statutory warranties or guaranties that cannot be excluded or limited by law.
Participant is responsible for all Ethereum blockchain network “gas” fees associated with participation in the Auction and/or Redemption, including fees for submitting bids and, where applicable, fees for minting and receiving Flowcarbon NFT(s) and receiving refunds.
An “Approved Marketplace” is any NFT marketplace that permits the transfer of Flowcarbon NFTs in a manner that fully enables the smart contract (“Smart Contract”) contained within such Flowcarbon NFTs (such transfer on an Approved Marketplace, a “Secondary Sale”).
If Participant obtains Flowcarbon NFT(s), Participant may (a) hold, (b) transfer via Secondary Sale, or (c) Redeem (once Flowcarbon has made Redemption available) said Flowcarbon NFT(s).
Any Secondary Sale or other transfer will be subject to these Terms and any applicable additional terms, including without limitation the Smart Contract, terms Flowcarbon may provide in connection with the Flowcarbon NFT’s, and the terms of Flowcarbon documentation. For clarity, the recipient of any Flowcarbon NFT in a Secondary Sale or other transfer (“Transferee”) will be subject to these Terms as if Transferee were Participant.
If at any time Participant disposes of or transfers a Flowcarbon NFT for any reason, Participant’s right to Redeem that Flowcarbon NFT and Participant’s license to Flowcarbon NFT IP (as defined and further described below) with respect to that Flowcarbon NFT will immediately transfer to Transferee, if the transfer was a Secondary Sale, or otherwise immediately expire, without the requirement of notice or any further action, and Participant will have no further rights in or to the Flowcarbon NFT or the Flowcarbon NFT IP.
In the event that Flowcarbon delivers to Participant one or more Flowcarbon NFT(s) in connection with a Winning Bid or a Redemption, subject to Participant’s complete and ongoing compliance with this Agreement and any other applicable terms, solely for Participant’s own personal, non-commercial use, Flowcarbon grants Participant a limited, worldwide, non-exclusive, non-transferable (except in connection with a Secondary Sale), non-sublicensable, revocable license to publicly or privately display (including on social media platforms and digital galleries) any intellectual property (or related intellectual property rights) included in the applicable Flowcarbon NFT(s) (such intellectual property, including any name, image, likeness, art, design, and drawings, in any form or media, including, without limitation, video or photographs, that may be included in such Flowcarbon NFT, “Flowcarbon NFT IP”), solely for noncommercial use as part of a: (a) marketplace that permits the purchase and sale of Flowcarbon’ NFTs, provided that the marketplace cryptographically verifies Participant’s right to display the Flowcarbon NFT IP to ensure that only the actual owner of such Flowcarbon NFT can display such Flowcarbon NFT IP; or (b) third party website or application that permits the inclusion, involvement, or participation of the Flowcarbon NFT, provided that the website/application cryptographically verifies each Flowcarbon NFT owner’s rights to display the Flowcarbon NFT IP to ensure that only the actual owner of such Flowcarbon NFT can display the Flowcarbon NFT IP, and provided that the Flowcarbon NFT IP is no longer visible once the owner of the Flowcarbon NFT leaves the website/application.
Participant agrees that, as between Flowcarbon and Participant, all rights, titles and interests in and to the Flowcarbon NFT IP belong exclusively to Flowcarbon, and no rights are granted other than the foregoing license.
Except and solely to the extent that such a restriction is permissible under applicable law, a Flowcarbon NFT holder shall not:
NFTs are intangible digital assets and exist only by virtue of the ownership record maintained in the blockchain network. Due to the rapidly evolving nature of the digital asset market, it is not possible to know all of the risks involved in digital assets, and new risks may emerge at any time. The following are some, but not all, of the risks associated with the Auction:
If Participant is a consumer habitually residing in the European Union, Participant has the right under the EU Consumer Rights Directive to cancel its purchase within 14 days of end of the Auction. If Participant qualifies for the cancellation right and wishes to exercise it, Participant must notify Flowcarbon within said 14 days by sending written notice to Flowcarbon at 88 University Pl. New York, NY 10003 United States. The notice should state your name, residential address, contact details, wallet address, description of the property and the date of the sale and that you wish to exercise the EU Consumer Rights Directive cancellation right.
The Auction may not be used for any unauthorized use or for any illegal or unlawful purpose. Any unauthorized use or violation of this Agreement shall be immediately and automatically terminate Participant’s right to participate in the Auction and may subject it to legal liability. Flowcarbon reserves the right to take appropriate legal action for any illegal or unauthorized conduct.
Participant agrees to defend, indemnify and hold Flowcarbon harmless from and against any and all claims, damages, costs and expenses, including attorneys' fees, due to Participant’s activities in connection with the Auction, and/or the breach of any representation, warranty, or other provision of the Agreement.
Flowcarbon is not responsible for: (a) any incorrect or inaccurate information, whether caused by Participant, or programming associated with or used in the Auction; (b) technical failures of any kind, including but not limited to malfunctions, interruptions, or disconnections in phone lines or network hardware or software; (c) unauthorized human intervention in any part of Auction; (d) technical or human error, which may occur in the administration of the Auction or the processing of bids; or (e) bids or notifications that are lost, late, incomplete, illegible, unintelligible, damaged or otherwise not received by the intended recipient, in whole or in part, due to computer, human or technical error of any kind, including but not limited to, by reason of unauthorized human intervention, spam filters, privacy settings, inactive email accounts or a Participant’s failure to monitor its email account. If for any reason a Participant’s bid is confirmed to have been erroneously deleted, lost or otherwise destroyed or corrupted, Participant’s sole remedy is to submit another bid, if the Auction is still ongoing. If, for any reason, the Auction cannot be executed as planned, including, but not limited to, any governmental order or mandate, force majeure, social media mandate, printing, administrative or other error of any kind, transmission failure, infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, epidemic, pandemic, or any other causes beyond the control Flowcarbon that corrupt or affect the security, administration, fairness, integrity or proper conduct of the Auction, or if the Auction is compromised or becomes technically corrupted in any way, electronically or otherwise, or if Flowcarbon otherwise wishes to discontinue the Auction for any reason, Flowcarbon reserves the right, in its sole discretion, to cancel, modify or terminate the Auction immediately and without notice.
In no event will Flowcarbon be liable to Participant for any special, incidental, exemplary, indirect, punitive, or consequential damages (including loss of profits) with respect to the subject matter of this Agreement, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not Participant has been advised of the possibility of such loss or damage. In no event will Flowcarbon be liable for any inability to access the Flowcarbon NFT IP for any reason, including as a result of any downtime, failure, obsolescence, removal, termination or other disruption relating to (a) the servers upon which the Flowcarbon NFT IP is stored; (b) the Approved Marketplace; or (c) any other NFT platform.
PARTICIPANT’S ENGAGEMENT IN THE AUCTION IS AT ITS OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PATICIPANT IS RESPONSIBLE FOR COMPLYING WITH THIS AGREEMENT AND ALL APPLICABLE LAWS WITH RESPECT TO THE AUCTION AND THE RECEIPT OF ANY FLOWCARBON NFT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL INFORMATION AND CONTENT MADE AVAILABLE ON OR ACCESSED THROUGH THE AUCTION, IS MADE AVAILABLE “AS IS” WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND. FURTHER, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, FLOWCARBON DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE AUCTION SITE(S), THE CONTENTS WITHIN AND THE PRODUCTS OR SERVICES LISTED OR PURCHASED THROUGH THE AUCTION. FLOWCARBON DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE AUCTION SITE(S) OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE AUCTION SITE(S) OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR HARMFUL COMPONENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, FLOWCARBON SHALL NOT BE LIABLE FOR THE USE OF THE SITES, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THESE TERMS.
If any part of these warranty disclaimers or limitations of liability is found to be invalid or unenforceable for any reason or if Flowcarbon is otherwise found to be liable in any manner, then its aggregate liability for all claims under such circumstances shall not exceed the lesser of (a) the amount paid by Participant in the Auction that is the subject of the claim at issue during the prior 12 months, or (b) $10. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages. Accordingly, some of the above indemnities, limitations and disclaimers may not apply. To the extent Flowcarbon may not, as a matter of applicable law, disclaim any warranty or limit its liability, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.
Flowcarbon may assign its rights and obligations under this Agreement, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law. This Agreement (including, without limitation, the license granted hereunder) is personal to Participant and shall not be assigned or transferred, except to a new owner of the Flowcarbon NFT as described above. Any other attempt to assign, sub-license, or transfer rights under this Agreement shall be null and void.
Flowcarbon operates the Auction from the United States of America. Flowcarbon does not represent that the Auction is lawful or available for use in any other location. If Participant chooses to participate in the Auction from other locations, it does so at its own risk and is responsible for compliance with all applicable local laws.
Except where prohibited by law, as a condition of participating in this Auction, each Participant agrees that (1) any and all disputes and causes of action arising out of or connected with this Auction, including but not limited to the Flowcarbon NFT(s), shall be resolved individually, without resort to any form of class action, and exclusively by final and binding arbitration under the rules of JAMS and held at the JAMS regional office nearest the Participant; (2) the Federal Arbitration Act shall govern the interpretation, enforcement and all proceedings at such arbitration; and (3) judgment upon such arbitration award may be entered in any court having jurisdiction. Under no circumstances will any Participant be permitted to obtain awards for, and Participant hereby waives all rights to claim, punitive, incidental or consequential damages, or any other damages, including attorneys’ fees, other than Participant’s actual out-of-pocket expenses (i.e., costs associated with participating in this Auction), and Participant further waives all rights to have damages multiplied or increased. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE MAY NOT APPLY TO YOU. All issues and questions concerning the construction, validity, interpretation and enforceability of these Terms, or the rights and obligations of the Participant and Flowcarbon in connection with the Auction, shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules (whether of the State of New York or any other jurisdiction), which would cause the application of the laws of any jurisdiction other than the State of New York.
If any term of provision of these Terms is found under the law to be invalid or unenforceable, then such specific term or provision shall be of no force and effect and shall be severed and the remainder of these Terms shall continue in full force and effect.
If you have any questions, please contact Flowcarbon within our Discord General Chat at discord.gg/Flowcarbon.
