VERSION 1.0 | JULY 9, 2020
I. Definitions and Interpretations
• “Application” means the cloud-based software program named “Fyooz” that is operated by the Provider and provides a platform and a marketplace where Stars can be tokenized on the blockchain by Issuers who generate and sell Star Tokens.
• “Cloud Hosting Provider” means the professional cloud hosting provider that is engaged by the Provider to store all Personal Data securely and make it accessible to the User.
• “Data Protection Act” means the Swiss Federal Act on Data Protection (FADP) which aims to protect the privacy and the fundamental rights of natural persons and legal entities when their data is processed.
• “GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
• “Ethereum” means the decentralized open source blockchain “Ethereum” that features smart contract functionality.
• “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected, including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, exploits of Ethereum consensus nodes, and byzantine attacks on the Ethereum consensus nodes, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, epidemics, pandemics, disasters, explosions, fires, floods, riots, terrorist attacks and wars.
• “Fyooz Coins” means blockchain-based digital information units based on the ERC-20 Token standard of the Ethereum blockchain that serves as a means of payment between the Users and allows them to buy and sell previously issued Star Tokens on the Fyooz Exchange on the Application.
• “Fyooz Exchange” means the secondary market trading platform for Star Tokens built on the 0x protocol and operated by the Company that is integrated into the Application and that enables Users to exchange Star Tokens for Fyooz Coins.
• “Fyooz Wallet” means the personal Ethereum wallet of the User that is associated with the User Account and that enables the User to hold Fyooz Coins and Star Tokens.
• “Intellectual Property Rights” means the rights in patents, trademarks, trade secrets, designs, domain names, copyrighted works (including software programs) and databases. Where the rights can be registered, the term Intellectual Property Rights also includes any pending registrations as well as the right to apply for a registration in any jurisdiction.
• “Issuers” means third parties who are entitled to generate and sell Star Tokens on the Platform based on an agreement with the Provider and have the technical and operational capabilities, rights and privileges required under the laws of Switzerland to create, promote, and sell Star Tokens.
• “Licensed Technology” means the Intellectual Property Rights of the Provider in the Application and the Services that are licensed to the User as part of the Services as further described herein.
• “Personal Data” means any information that is related to an identified or identifiable natural person as further described in the GDPR.
• “Protected Content” means all texts, videos, images, logos, data and other content made available to the User and the Users by the Provider via the Application.
• “SaaS” or “Software-as-a-Service” refers to the sales model used by the Provider to provide the User with access to the Application and to make the Services available.
• “Stars” means individuals from the entertainment, music or sports industry, celebrities, idols, consumer brands, companies or social movements.
• “Star Tokens” means blockchain-based digital information units based on the ERC-20 Token standard of the Ethereum blockchain that create a visual and contextual affiliation to a Star in the Application and that may enable the User to make use of Token Functionalities.
• “Star Token Sale” means the primary market issuance of a Star Token generated on the Application that is conducted by an Issuer subject to the applicable Star Token Sale Terms as defined by the Issuer.
• “Support Services” means the services that may be provided by the Provider to enable the User to exercise the access rights to the Application.
• “Token Functionalities” means the access, engagement and interaction functionalities that may be provided by Star Tokens as further described in the applicable Star Token Sale Terms.
• “User Account” means the account that enables the User to access the Application and to make use of the Services.
• “User Profile” means the personal profile created by the User that consists of the Personal Data that is provided by the User from time to time.
• “Website” means the website https://us.fyooz.io.
II. Application and Services
1. General Purpose Statement
The Provider undertakes to provide the User with access to the Application and to grant the usage rights that are necessary to use the Application and Services. If the Provider creates new versions, updates, upgrades or other new deliveries with regard to the Application, the rights and limitations described below shall also apply to these.
2. Access to Application and Services
2.1 Access Requirements
To access the Application, the User needs an Internet connection with sufficient bandwidth and quality. The Provider can define additional access requirements at any time. To get access to the Services, the User must create an account on the Application and define a personal password. The User is solely responsible for the security of the password. If the User loses or forgets his password, he can reset the password on the login page by entering his registered e-mail address.
2.2. Administration Rights
The User accesses the Application through the personal device on which the Application is installed. This means that the security and integrity of the Data depends largely on the technical integrity of the User’s personal device. The Provider assumes no liability for damages in connection with any disclosure or third-party manipulation of Data that is attributable to a compromise of the User’s personal device.
The access to the Application is subject to the following limitations:
• The User is not entitled to access the Application to cause damage to the Application or to impair or limit the availability and accessibility of the Application.
• The User is not entitled to carry out or have carried out so-called penetration tests to access the Application without authorization in order to check the security of the Application and the Data.
• The User is not entitled to bypass the technical protection mechanisms of the Provider that protect the Application against unauthorized access.
2.5. License Agreement
Provider hereby grants the User a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable right to use the Licensed Technology to access the Application and make use of the Services (“License“). The User acknowledges that this License does not result in any transfer or assignment of Intellectual Property Rights to the User and is subject to the following restrictions to protect the Licensed Technology and the Intellectual Property Rights of the Supplier:
• The User acknowledges the comprehensive ownership of the Licensed Technology by the Provider and hereby irrevocably waives any and all rights to contest the existence and scope of such rights.
• The User may use the Licensed Technology only for its personal activities.
• The User may not pass on, transfer or assign the License to third parties, in whole or in part, without the express written consent of the Provider.
• The User shall not access the source code of the Licensed Technology or modify, decompile, decrypt, extract or otherwise reduce the information contained in the Licensed Technology except as expressly permitted by applicable law.
• The User shall not disclose, reproduce, distribute or otherwise make available to the public the information contained in the Licensed Technology and shall not use it to promote, conduct or otherwise contribute to fraudulent or illegal activities.
2.6. No Guaranteed Availability
3. Support Services
The Provider may provide the User with support services that are required to access the Application. All Support Services are provided on a best effort basis. The Provider does not guarantee that the Support Services will be available to the User or that the issue of the User will be solved by the Provider.
4. Creation of User Account and User Profile
To access the Application and make use of the Services provided by the Provider, the User has to open a User Account. The User Account consists of a User Profile and the public key (PUK) of the Fyooz Wallet that is used by the User as described in Section 5 below.
Upon creation of the User Account, the User Profile will consist of the universally unique identifier (UUID) of the personal device that is used by the User. The Provider reserves its right to request additional Personal Data from the User. If the User does not provide such additional Personal Data at the Provider’s request, the Provider has the right to disable the User’s access to the Application and the Services that are provided thereon.
5. Fyooz Wallet
5.1. Usage Requirement
Since the Fyooz Coin and Star Tokens are based on the ERC-20 Token standard of the Ethereum blockchain, the User requires a personal Ethereum wallet that is associated with the User Account and that enables the User to make use of the functionalities of the Application. The User can either connect an existing Ethereum Wallet to his User Account or to open a new Ethereum wallet on the Application.
5.2. Connecting an Existing Ethereum Wallet
If the User connects an existing Ethereum wallet to his User Account, the Provider will not be able to restore access to the connected Ethereum wallet under any circumstances. This means that the use of an existing Ethereum wallet happens at the User’s own risk.
5.3. Opening a New Ethereum Wallet
If the User opens a new Ethereum wallet on the Application, the Provider will collect the mobile phone number of the User and add it to the User Profile. During the process of the wallet creation, the mobile number will be used for the two-factor identification of the personal device used by the User. As soon as the mobile phone is registered, the Ethereum wallet will be generated by the Provider and installed on the personal device of the User. The private key will be split in multiple parts and stored by independent third parties. In case of a password loss, the Fyooz Wallet can be restored on the User’s device by using the telephone number as an identifier.
5.4. No Custody or Access by Provider
Regardless of whether the User connects an existing Ethereum wallet or opens a new Ethereum wallet to create a Fyooz Wallet, the private key and the public key of the Fyooz Wallet will be stored on the personal device of the User. The Provider does not store any private keys on its own servers and will therefore have no access to any of the Fyooz Coins or Star Tokens that may be held by the User in the Fyooz Wallet. This means that the Fyooz Wallet is designed as a non-custodial wallet.
PROVIDER DOES NOT ASSUME OR ACCEPT ANY LIABILITY OR RESPONSIBILITY FOR ANY LOSSES, DAMAGES OR THIRD-PARTY CLAIMS, IRRESPECTIVELY OF THE LEGAL BASIS OF SUCH LOSSES, DAMAGES OR CLAIMS, THAT MAY BE SUFFERED BY OR DIRECTED AT THE USER AS A RESULT OF THE LOSS OF ACCESS TO THE FYOOZ WALLET AND THE FYOOZ COINS AND STAR TOKENS HELD THEREON.
6. Access to Token Functionalities
6.1. Access via Application
Token Functionalities that may be associated with a Star Token as defined by the Issuer are not visible on the Ethereum blockchain but rather stored on the Application where the management of the Token Functionalities takes place. This means that the Token Functionalities of a particular Star Token (if any) are only available if the User has connected his Fyooz Wallet to the User Account. After connecting the Fyooz Wallet, the User will be able to see in his User Account which Star Token Functionalities can currently be accessed. While the access to a Star Token Functionality must always happen via the Application, the Issuers will be free to define the exact access process.
6.2. Removal of Star Tokens from Application
The User understands and acknowledges that the Provider reserves its right to temporarily or permanently remove any Star Token from the Application if such action is reasonably required to comply with existing contractual or regulatory obligations. In this case, the User may lose the ability to access the Token Functionalities associated with the Star Token.
Since the Star Tokens are issued 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.
III. Intellectual Property Rights to Content
IV. Limited Warranty
The Service Provider warrants that it complies with all applicable legal and regulatory requirements in connection with the provision of Services in connection with the Application. The Service Provider also warrants that the Licensed Technology and the Protected Content, to the Provider’s best knowledge, does not contain any worms, trojan horses, spyware, adware or other malicious software programs.
V. Limitation of Liability
The User acknowledges and agrees that, to the extent permitted by any applicable law, the User will not hold the Provider or any of its affiliates liable for any and all damages or injury whatsoever caused by or related to the use of, or the inability to use the Application 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).
VI. Risks Related to the Use of the Application
The User understands and accepts the various risks in connection with the use of the Application. In particular, but not concluding, the User understands the following risks:
• Risk of Software Weaknesses: The User understands and accepts that the Ethereum blockchain and the underlying software application (including the smart contract system) 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 all Fyooz Coins and Star Tokens that may be held by the User in the Fyooz Wallet.
• Risk of Ethereum Mining Attacks: The User understands and accepts that the Ethereum blockchain 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 Application, expected proper execution and sequencing of Fyooz Coin and Star Token transactions, and expected proper execution and sequencing of contract computations.
• 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 all Fyooz Coins and Star Tokens that may be held by the User in the Fyooz Wallet.
• Risk of Transaction Verification: The User understands and accepts that transaction of Fyooz Coins or Star Tokens may be delayed or not be executed due to the transaction volume on the Ethereum blockchain, mining attacks and/or similar events.
• 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 Application and which may result in a discontinuation of the Application.
• Risk of Loss of Private Key: The User understands and acknowledges that if the private key from the Ethereum wallet that is connected to the User Account gets lost or stolen, all Fyooz Coins and Star Tokens that may be held therein will be unrecoverable and will be permanently lost.
• Risk of Theft: The User understands and accepts that the Fyooz Wallet may be exposed to attacks by hackers or other individuals that could result in theft or complete loss of Fyooz Coins or Star Tokens that may be held therein.
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 Provider or any other third party.
VII. Termination and Discontinuation
2. Entire Agreement
3. Force Majeure
5. Class Action Waiver
To the fullest extent permitted by law, the User hereby waives the right to participate in a class action lawsuit or a class-wide arbitration against the Provider or any of its affiliates arising out of or related to the use of, or the inability to use the Application under any cause or action whatsoever.
6. Governing Law and Jurisdiction
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.