ANCILLARY TERMS & CONDITIONS FOR PARTICIPATING IN AN NFT AUCTION WITH AN ADDITIONAL CONFERRAL
These Ancillary Terms and Conditions of Service constitute a legally binding agreement (the “Agreement”) between you (also referred to herein as “User”) and the Conferrer governing your participation in an NFT auction on Opensea (https://opensea.io/tos).
THE FOLLOWING TERMS AND CONDITIONS ARE ANCILLARY TO THE PRINCIPAL TERMS AND CONDITIONS TO WHICH YOU AGREED UPON SIGNING FOR THE NFT AUCTION TITLED ‘ETH IN MELLIEĦA’ WHICH WILL BE HELD ON THE OPENSEA PLATFORM.
By bidding in this NFT auction on OpenSea, you agree to be bound by these ancillary Terms and all of the terms and conditions incorporated herein and all of the terms and conditions which are included in OpenSea’s auction event. The principal Terms and Conditions are accessible on the following link: https://opensea.io/tos .
In addition to the OpenSea Terms and Conditions for the NFT auction, these ancillary Terms stipulate that the highest bidder in the NFT auction will be given an additional conferral. This conferral is the licence from Transport Malta to possess a Maltese vehicle number plate with its particulars being ‘ETH’. The car licence plate was issued on the 13th of September 2021 to the Conferrer. This conferral does not constitute a game and/or reward as defined in The Malta Gaming Act, Chapter 583 of the Laws of Malta. The licence plate will be given to the highest bidder as an ex gratia conferral governed by Article 1737 of Chapter 16 of the Laws of Malta.
You hereby expressly acknowledge that you understand this Agreement.
1. Definitions.
“Art” means the digital photo of the oil-on-canvas painting created by Debbie Bonello depicting scenes of Mellieha. The painting features a car with a fully customised Maltese licence plate “ETH”.
“Auctioned NFT” means the NFT for which you successfully provided the highest bid on OpenSea in the auction “ETH in Mellieħa”.
“Auction” means the online auction titled “ETH in Mellieħa” which will be held on the OpenSea website.
“Car licence plate” means the road-vehicle licence plate which was issued on the 13th of September 2021 by Transport Malta to The Conferrer. The particulars on the licence plate consist of three letters which are: ETH
“The Conferrer” means Mr. W. E. Y. , holder of Maltese ID Card number 0560917L and holder of ERC-20 wallet 0x87a2feb09B11e419A8eF6575d1F23d7076e99b82 (ENS domain mlh.eth)
“NFT” means any blockchain-tracked, non-fungible token. “Terms” means these ancillary terms and conditions.
“Transport Malta” means the “Authority for Transport in Malta” which is regulated by Chapter 499 of the Laws of Malta titled ‘Authority for Transport in Malta Act’.
2. Ownership.
You acknowledge and agree that prior to the auction, the Conferrer is the sole owner of the Auctioned NFT and the owner of the car licence plate.
3. Obligations of the Conferrer
Subject to your continued compliance with these ancillary Terms, and subject to the principal Terms and Conditions on OpenSea, the highest bidder on OpenSea will obtain a full assignment of copyright on the art of the auctioned NFT, and the car licence plate. The transfer of the number plate is subject to the discretion of Transport Malta and may be subject to any conditions and fees as may be imposed by Transport Malta. The Conferrer will provide for an escrow account to fulfil any additional fees by Transport Malta.
4. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY.
The car licence plate which will be awarded to the highest bidder will be provided “as is” and “as available” without warranties of any kind either express or implied to the fullest extent permissible pursuant to applicable law.
The Conferrer disclaims all warranties, express or implied. You agree that this limitation of liability applies whether such allegations are for breach of contract, tortious behaviour, 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. 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.
You accept that your forfeiture from the principal terms and conditions of the auction on OpenSea will result in the automatic forfeiture of these ancillary Terms.
YOU ACCEPT THAT IF TRANSPORT MALTA, FOR ANY REASON, IS UNABLE OR UNWILLING TO PROCESS THE TRANSFER OF THE CAR LICENCE PLATE TO YOU, THE TRANSFER WILL NOT TAKE PLACE AND YOU WAIVE ANY LIABILITY THEREFROM TOWARDS THE CONFERRER.
5. Assumption of Risk.
You agree as follows: (A) the car licence plate will be awarded to the highest bidder during an online auction, therefore, there are risks associated with using Internet-native assets (e.g., non-fungible tokens, cryptocurrencies, etc.) including, but not limited to, the risk of hardware, software and Internet connections and/or failures, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your digital “wallet”, and the Conferrer will not be responsible for any of these, however caused; (B) upgrades to the Ethereum platform, a hard fork in the Ethereum platform, a failure or cessation of Ethereum, or a change in how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using such technologies, including without limitation Licensed NFTs.
6. Indemnity
You will defend, indemnify, and hold the Conferrer harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including attorneys’ fees) relating to or arising out of your purchase, sale or possession of the Auctioned NFT and/or car licence plate, including:
(1) your breach of this Agreement or the documents it incorporates by reference;
(2) your violation of any law or the rights of a third party as a result of your own interaction with such third party;
(3) any allegation that any materials that you submit to us or transmit in the course of the auction, communications seeking the Conferrer’s consent to activities or otherwise, infringe or otherwise violate the copyright, trademark, or other intellectual property or other rights of any third party; and/or
(4) any other activities in connection with the auction or the NFT or the car licence plate. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified
7. Governing Law.
These ancillary Terms do not override Section 16 of the principal Terms and Conditions of OpenSea (link: https://opensea.io/tos ) which govern the online auction for the Auctioned NFT and which stipulates that the principal terms shall be governed by the laws of the State of California.
You accept that these ancillary Terms which solely relate to the transfer of the Maltese car licence plate shall be governed by, construed, and enforced in accordance with the laws of the Republic of Malta, as they are applied to agreements entered into and to be performed entirely within Malta and without regard to conflict of law principles. Any action related to these ancillary Terms and/or the car licence plate shall be brought in the appropriate court within the Republic of Malta; and you irrevocably consent to the exclusive jurisdiction and venue of the Republic of Malta for the adjudication of all claims relating to the car licence plate.