Terms and Conditions

Last revised on 30.11.2021

openAR, hosted by panke.gallery – Verein für künstlerisch-kulturelle Bildung e.V., (“openAR,” “we,” “us,” “our”) provides its marketplace and services (described below) to you (“you” or “User") through its website, platform, and marketplace located at www.openAR.art (the “Platform”), subject to the following Terms of Service (as amended from time to time, the “Terms”). By creating a user profile on the Platform and interacting with the platform in the role of a Creator, Curator or Collector (see roles), you acknowledge that you have read and agree to these Terms.

Please read these Terms carefully, as they contain important information regarding your legal rights, remedies, and obligations.

We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will indicate the changes at the top of this page the date these terms were last revised. We will also notify you, either through the Platform user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen days after they are posted, except that changes addressing new functions of the Platform will be effective immediately. Your continued use of the Platform and after the date any such changes become effective constitutes your acceptance of the new Terms of Service.

About openAR

openAR is a platform for artists (“Creators”) and collectors (“Collectors”) to sell and purchase digital art represented on non-fungible Ethereum-based tokens (“Digital Artwork”).

Smart-Contract Enabled. The Digital Artwork on openAR is represented via smart contracts on the Ethereum blockchain xDai that provides an immutable ledger of all transactions that occur on openAR (“Smart Contracts”). We neither own nor control MetaMask, Coinbase, the Ethereum network, your browser, or any other third party site, product, or service that you might access, visit, or use for the purpose of enabling you to use the various features of the Platform. The infrastructure that represents the Digital Artwork is therefore outside of the control of any one party, including openAR, and is subject to risks and uncertainties. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that you may suffer as a result of your transactions or any other interaction with any such third parties. The User understands that your Ethereum public address will be made publicly visible whenever you engage in a transaction on the Platform.

Non-custodial. While openAR offers a marketplace for Digital Artwork, it does not buy, sell, or ever take custody or possession of any Digital Artwork. The Platform facilitates User collection of Digital Artwork, but neither openAR nor the Platform are custodians of any Digital Artwork. The User understands and acknowledges that the Smart Contracts do not give openAR custody, possession, or control of any Digital Artwork or cryptocurrency at any time for the purpose of facilitating transactions on the Platform. You affirm that you are aware and acknowledge that openAR is a non-custodial service provider and has designed this Platform to be directly accessible by the Users without any involvement or actions taken by openAR or any third party. As a marketplace, openAR cannot make any representation or guarantee that Creators will achieve any particular outcome as the result of listing their Digital Artwork on openAR.

Obligations and rules when using openAR

Your Registration Obligations: Anyone can browse openAR without registering for an account. You are required to register with openAR in order to access and use certain features on the Platform, such as participating as a Creator or Collector. We furthermore require you to provide a valid email address to complete your registration. You must be at least 14 years old to use the Platfom as a Creator, yet at least 18 years old to mint, sell or purchase any Digital Artwork. If you are between 14 and 18 years old, you must have the expressed permission of a parent or legal guardian who can accept these Terms on your behalf. You are responsible for anything that occurs when anyone is signed in to your account, as well as the security of the account.

Member Account, Password, and Security. You are responsible for maintaining the confidentiality of your account and password, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify openAR of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing openAR. openAR will not be liable for any loss or damage arising from your failure to comply with this section.

Modifications to the Platform. openAR reserves the right to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) with or without notice. You agree that openAR will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform.

Rules when using openAR

No User is allowed to:

  1. manipulate the price of a Digital Artwork in any way, including buying your own items or using openAR to conceal economic activity.
  2. email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of openAR, is objectionable or which restricts or inhibits any other person from using or enjoying the Platform, or which may expose openAR or its users to any harm or liability of any type;
  3. interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Platform;
  4. violate any applicable national or international law, or any regulations having the force of law;
  5. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  6. harvest or collect email addresses or other contact information of other Users from the Platform by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
  7. further or promote any criminal activity or enterprise or provide instructional information about illegal activities, including for the purpose of concealing economic activity, laundering money, or financing terrorism;
  8. obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Platform;
  9. use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or the content posted on the Platform, or to collect information about its Users for any unauthorized purpose;
  10. create user accounts by automated means or under false or fraudulent pretenses;
  11. access or use the Platform for the purpose of creating a product or service that is competitive with any of our products or services.

Intellectual property rights on the Platform

Creator Rights

The Creator owns all legal right, title, and interest in all intellectual property rights underlying the Digital Artwork minted by the Creator on the Platform, including but not limited to copyrights and trademarks. As the copyright owner, the Creator has the right to reproduce, prepare derivative Digital Artwork, distribute, and display or perform the Digital Artwork. Creators hereby acknowledge, understand, and agree that selling a Digital Artwork on openAR constitutes an express representation, warranty, and covenant that the Creator has not, will not, and will not cause another to sell, tokenize, or create another cryptographic token representing a digital collectible for the same Digital Artwork.

The Creator hereby acknowledges, understands, and agrees that launching a Digital Artwork on openAR constitutes an express and affirmative grant to openAR, its affiliates and successors a non-exclusive, world-wide, assignable, sublicensable, perpetual, and royalty-free license to make copies of, display, perform, reproduce, and distribute the Digital Artwork on any media whether now known or later discovered for the broad purpose of operating, promoting, sharing, developing, marketing, and advertising the Platform, or any other purpose related to openAR, including without limitation, the express right to: (i) display or perform the Digital Artwork on the Platform, a third party platform, social media posts, blogs, editorials, advertising, market reports, virtual galleries, museums, virtual environments, editorials, or to the public; (ii) create and distribute digital or physical derivative Digital Artwork based on the Digital Artwork; (iii) indexing the Digital Artwork in electronic databases, indexes, catalogues; and (iv) hosting, storing, distributing, and reproducing one or more copies of the Digital Artwork within a distributed file keeping system, node cluster, or other database (e.g., IPFS) or causing, directing, or soliciting others to do so.

Creators expressly represent and warrant that their Digital Artwork listed on openAR contains only original content otherwise authorized for use by the Creator, and does not contain unlicensed or unauthorized copyrighted content, including any imagery, design, audio, video, human likeness, or other unoriginal content not created by the Creator, not authorized for use by the Creator, not in the public domain, or otherwise without a valid claim of fair use, the Creator further represents and warrants that it has permission to incorporate the unoriginal content.

Collectors Rights

Collectors receive a cryptographic token representing the Creator’s Digital Artwork as a piece of property, but do not own the creative work itself. Collectors may display and share the Digital Artwork, but Collectors do not have any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights to the Digital Artwork, excepting the limited license to the Digital Artwork granted by these Terms. Upon collecting a Digital Artwork, Collectors receive a limited, worldwide, non-assignable, non-sublicensable, royalty-free license to display the Digital Artwork properly obtained by the Collector.

The Collector’s limited license to display the Digital Artwork, includes, but is not limited to, the right to display the Digital Artwork privately or publicly: (i) for the purpose of promoting or sharing the Collector’s purchase, ownership, or interest; (ii) for the purpose of sharing, promoting, discussing, or commenting on the Digital Artwork; (iii) on third party marketplaces, exchanges, platforms, or applications in association with an offer to sell, or trade the cryptographic token representing the Digital Artwork; and (iv) within decentralized virtual environments, virtual worlds, virtual galleries, virtual museums, or other navigable and perceivable virtual environments.

The Collector agrees that it may not, nor permit any third party, to do or attempt to do any of the foregoing without the Creator’s express prior written consent in each case: (i) modify, distort, mutilate, or perform any other modification to the Work which would be prejudicial to the Creator’s honor or reputation; (ii) use the Digital Artwork to advertise, market, or sell any third party product or service; (iii) use the Digital Artwork in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) incorporate the Digital Artwork in movies, videos, video games, or any other forms of media for a commercial purpose, except to the limited extent that such use is expressly permitted by these Terms or solely for your Collector’s personal, non-commercial use; (v) sell, distribute for commercial gain, or otherwise commercialize merchandise that includes, contains, or consists of the Digital Artwork; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Digital Artwork; (vii) attempt to mint, tokenize, or create an additional cryptographic token representing the same Digital Artwork, whether on or off of the openAR Platform; (viii) falsify, misrepresent, or conceal the authorship of the Digital Artwork; or (ix) otherwise utilize the Digital Artwork for the Collector’s or any third party’s commercial benefit.

Collectors irrevocably release, acquit, and forever discharge openAR and its subsidiaries, affiliates, officers, and successors of any liability for direct or indirect copyright or trademark infringement for openAR use of a Digital Artwork in accordance with these Terms.

Platform Content, Software and Trademarks

You acknowledge and agree that the Platform may contain content or features (“Platform Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by openAR, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Platform or the Platform Content, in whole or in part. In connection with your use of the Platform you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by openAR from accessing the Platform (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Platform or the Platform Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Platform or distributed in connection therewith are the property of openAR, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by openAR.

The openAR name and logos as well as other company, product, and service names and logos used and displayed via the Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to openAR. Nothing in this Terms of Service or the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of openAR Trademarks displayed on the Platform, without our prior written permission in each instance.

Third Party Material

Under no circumstances will openAR be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that openAR does not pre-screen content, but that openAR and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Platform. Without limiting the foregoing, openAR and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Platform, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content and the purchase of any Digital Artwork, including any reliance on the accuracy, completeness, or usefulness of such content.

Any questions, comments, suggestions, ideas, feedback or other information about the Platform (“Submissions”), provided by you to openAR are non-confidential and openAR will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

openAR may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of openAR, its users and the public. You understand that the technical processing and transmission of the Platform, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Copyright Complaints: openAR respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify openAR of your infringement claim. Counter-Notice: If you believe your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice.

User Agrees to Cooperate with openAR

Creators expressly agree to refund to the Collector and/or openAR the entire portion of Fees received from the sale of a Digital Artwork that was subsequently removed from the Site pursuant to an effective copyright infringement. openAR will not be held liable to any User for removing allegedly infringing works from the Platform or otherwise fulfilling its legal obligations.

Fees charged by openAR

Fees. The Fees for an initial sale of Digital Artwork on openAR are as follows:

  • Creators receive 85% of the total sale price of an Initial Sale.
  • openAR collects 15% of the total sale price of an Initial Sale.

You agree and understand that all fees, commissions, and royalties are transferred, processed, or initiated directly through one or more of the smart contracts on the Ethereum blockchain network.

The Fees for a secondary sale of Digital Artwork on openAR (to be implemented) are as follows:

  • Seller receives 85% of the total sale price of a Secondary Sale.
  • Original Creator receives 10% of the total sale price of a Secondary Sale.
  • openAR collects 5% of the total sale price of a Secondary Sale.

You agree and understand that all fees, commissions, and royalties are transferred, processed, or initiated directly through one or more of the smart contracts on the Ethereum blockchain network.

openAR does not generally collect any fees, commissions, or royalties for transactions occurring outside of openAR. Users irrevocably releases, acquits, and forever discharges openAR and its subsidiaries, affiliates, officers, and successors of any liability for royalties, fines, or fees not received from any off-market transaction.

All transactions on openAR, including without limitation minting, tokenizing, listing, offering, purchasing, or confirming, are facilitated by smart contracts existing on the Ethereum network. The Ethereum network requires the payment of a transaction fee (a “Gas fee”) for every transaction that occurs on the Ethereum network, and thus every transaction occurring on openAR. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of openAR. The User acknowledges that under no circumstances will a contract, agreement, offer, sale, or other transaction on openAR be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable.

Taxes. Users are responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority, associated with your use of openAR (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, sale, or creation of any artworks).

Beta Platforms. Certain features on openAR may be offered while still in “beta” form (“Beta Platforms”). openAR will utilize best efforts to identify the Beta Platforms by labeling on its Platform. By accepting these Terms or using the Beta Platforms, you understand and acknowledge that the Beta Platforms are being provided as a “Beta” version and made available on an “As Is” or “As Available” basis. The Beta Platforms may contain bugs, errors, and other problems. You assume all risks and all costs associated with your use of the beta platforms. In addition, we are not obligated to provide any maintenance, technical, or other support for the Beta Platforms.

Your Privacy

Our privacy policy is a part of these Terms. Please review the openAR Privacy Policy, which also governs the Platform and informs Users of our data collection practices.

We do not get involved with User disputes

You agree that you are solely responsible for your interactions with any other Users in connection with the Platform and openAR will have no liability or responsibility with respect thereto. openAR reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Platform.