1.1 The operator of the platform "Creatokia" is: Creatokia GmbH, Voltastraße 1, 60486 Frankfurt am Main, Fon +49 (0)69 9072006-0, Fax +49 (0)69 9072006-97, contact(at)creatokia.com (hereinafter also "Creatokia").
1.2 Creatokia is a marketplace and online auction house where Users can sell or buy, respectively, Content. Buyers can also mint on the blockchain an NFT associated with the Content (Clause 4.1).
1.6 If a user has objected to the amendment, Creatokia is entitled to terminate the User Agreement according to clause15 at that point in time the amendment should come into force.
2.1 Technical basis of Creatokia
2.2 Trade on Creatokia and parties involved
(the mentioned actions, objects and actors refer to Creatokia)
2.3 Other platforms
3.1 User account: A user account is required to make purchases and sales.
3.2.1 Initial sale by the Publisher: The initial Buyer is not required to have a wallet if paying in Fiat (clause 6.1); a Wallet is only required for payment in ETH.
3.2.2 Resale: Payment is only possible in ETH; Seller and Buyer must have a Wallet.
3.2.3 Creatokia determines which browser providers and/or mobile app providers are aligned to Creatokia for interacting with a Wallet; the User may only use Compatible Wallets.
3.3 The User can only be an individual. The User must be of 18 years old and have full legal capacity.
3.4 A User who is not a Publisher always acts towards Creatokia and other Users in his own name and for its own account. If the User acts on behalf of a third party, no agreement will be formed between such third party and Creatokia and the User is always liable vis a vis such third party. The holder of the Publisher's account may be an employee or agent whose Wallet is used for the transactions; however, the contracting invoicing party is the Publisher making the offer.
3.5 Creatokia is entitled to link the use or the scope of use of Creatokia or individual functions there to certain prerequisites or to make them dependent on the submission of certain proofs; one of such prerequisites is the domicile/company seat of the respective user.
3.6 The User is required to provide accurate information in the process of registration. In the event of subsequent changes, he is obliged to update such information in the user account without any delay.
3.7 By sending the entered data, the User declares an application for the conclusion of this User Agreement via the user account. Up to this point, the User can check and correct his details at any time or cancel the registration.
3.9 A user account is an individual account, i.e., the User is entitled to use its user account only for its own purposes and on its own behalf and account. He is not entitled to pass on its access data to any third party.
3.10 If the User suspects or knows that third parties have access to its user account, the User is obliged to set a new password immediately and inform Creatokia
3.11 Creatokia is entitled to block the user account temporarily or permanently, if the User violates its duties, in particular makes false statements or gives third parties access to the user account. In case of permanent blocking, the User is not entitled to register again without the explicit permission of Creatokia.
4.1 Creatokia is a marketplace and online auction house where a certain type of Users (sellers / publishers) can sell Content (Digital Originals) and another type of Users (buyers) can buy the Digital Originals. Creatokia also offers the option to the Buyers to mint on the blockchain an NFT associated with the Content. The User acknowledges that by firmly assigning an NFT with a piece of Content ("tokenization"), Digital Content otherwise can be copied for multiple times, gets the qualification of (i) a single object, of which there may be multiple specimen of the same kind, or (ii) a service that can be provided multiple times and/or to different people so that ultimately Digital Content or a Service becomes a unique "original". The content tokenized by the NFT can thus be traded as individual objects.
Content that can be traded is
The Content offered can also be any combination of Digital Content, physical items and Services.
4.3 An Offer consists of the offered Content and the Seller's offer description.
4.4 Role of Creatokia
4.4.1 Creatokia does not become a party to agreements entered into between Users, nor does it act as an agent of any Buyer or Seller. Creatokia only transmits the declarations between Users.
4.4.2 Creatokia only becomes a party to an agreement if it itself appears as a User and acts in its own name as a Seller (as an initial Seller = Publisher or as a Reseller) or as a Buyer.
4.5 Offer forms on Creatokia
4.5.1 "Initial Drop" means the initial Offer of a fixed price, i.e., the Offer by the Publisher.
4.5.2 "Auction Drop" means the initial offering by means of an auction process.
220.127.116.11 The Publisher specifies an auction period and possibly a minimum bid; this information is published together with the Offer.
18.104.22.168 Offers and bids submitted by Users can't be withdrawn.
22.214.171.124 The purchase agreement is concluded at the end of the auction period between the Publisher and the User who placed the highest bid. The highest bid represents the purchase price.
126.96.36.199 If the Publisher has set a minimum bid and the highest bid available at the end of the auction period does not reach the minimum bid, no purchase agreement is concluded.
4.5.3 Offers limited in number or time
An Offer of an N-Drop or T-Drop can be withdrawn at any time as long as no Buyer has accepted the Offer. The acceptance of the purchase agreement occurs by clicking the button "Buy now with obligation to pay".
4.6.1 The sale of Content is always made initially as an Initial Drop. The initial Buyer is entitled to resell Content as specified in the Publisher's Offer.
4.6.2 Object of any resale is the NFT, so the NFT must be already minted. The Buyer can pay the resell price only in ETH (clause 3.2.2).
4.6.3 The Publisher is entitled to restrict, at the time of initial sale, any resale to Creatokia. This restriction will be set out in the offer description. Other restrictions cannot be provided for. If Publisher did not make said restriction explicitly, a Reseller may freely choose the platform for resale, i.e. Creatokia, another Verified Platform (clause 2.3), or any non-verified platform.
4.6.4 A Reseller is obliged to check whether and to what extent its activity qualifies as a financial service in the form of crypto custody under banking supervision law, for example, and whether a license therefore or for other reasons is required. The Reseller is obliged to describe the Content accurately in the Offer, in particular it has to indicate if a Service has already been provided or if Digital Content or a physical item no longer exists or has been modified. The Reseller is obliged to accurately reflect the rules set by the Publisher, in particular what restrictions apply to further resales and what Participation the Publisher receives from the proceeds of a resale.
4.6.5 When reselling Content through Creatokia, a sales commission is incurred by Creatokia and is payable by the Seller.
4.6.6 If a Publisher intends to participate in the proceeds from resales, this must be specified in the Offer at the time of the initial drop. A Reseller is obliged to include such a provision in its Offer as well (clause 4.6.4).
4.6.7 Any resale on platforms may incur additional costs and/or commissions which are out of Creatokia's control.
4.6.8 A Reseller is required to act as an individual for private (not for business) purposes and is therefore a consumer. He is therefore not entitled to charge any VAT or similar taxes. No VAT or similar tax calculations will be provided by Creatokia.
4.6.9 The User acknowledges that Creatokia has no control whether a Reseller retains copies of Digital Content, even if it is obliged to delete any copies after the sale of Content according to the Offer. Effective restriction of the use of Digital Content is only possible by means of digital rights management agreement which the parties may be entered into. Creatokia is entitled to and will – if it becomes aware – withdraw the right to (re)download Digital Content from the previous holder of the Digital Content upon conclusion of the purchase and assigns this right to the new holder.
5.1 Each transaction on Creatokia is recorded immutably via the blockchain, except a payment in Fiat. A reversal of the objects and payments will take effect between the parties only, but a transaction can neither be undone nor removed from the blockchain. A cancellation of a transaction will be governed by Smart Contracts. Costs that may arise in the reversal of a transaction via the blockchain are borne by the Users involved, not Creatokia.
5.2 The specific assignment of an NFT to a Content requires minting. The following applies to the minting of an NFT
5.3 Generally, the NFT shall be minted when the Offer is made by a Publisher.
5.3.1 When the Buyer pays in ETH as part of a T-Drop, N-Drop, or Auction Drop, the minted NFT will be stored in the Buyer's Wallet.
5.3.2 If the Buyer pays in Fiat as part of a T-Drop or N-Drop, no NFT will be minted initially. The Buyer will be assigned a database entry in the Creatokia Platform indicating the purchase; with this database entry, the Buyer acquires the right to mint the respective NFT at a later date. The minting process shall only occur at the express request of the Buyer and at the Buyer's expense (see clause 6.4); the minted NFT shall be stored in the Buyer's Wallet.
5.4 The blockchain and its functionalities, such as the storage of tokens in Wallets, are not under Creatokia's exhaustive control. Creatokia does not guarantee the proper functioning of these technologies, but with respect to the functionalities of the minted NFT and the Smart Contract.
6.1 Upon purchase of Content, the Buyer is obliged to pay the agreed purchase price. Payment shall be made in ETH or Fiat (clause 6.2.1) as specified in the Offer. The purchase price is due immediately.
6.2 If the payment is made in ETH, the purchase price is transferred from the Buyer's Wallet to the Seller's Wallet.
6.2.1 The Content can be paid for with either ETH or Fiat. The minting on the blockchain of an NFT associated with the Content shall be paid for only with ETH.
6.2.2 For acquiring the Content the Buyer pays the price to the Seller, Creatokia receives a certain commission for facilitating the transaction (10%). The cost of minting the NFT on the blockchain is transferred to the blockchain miner and is to be paid by the Buyer - always with crypto currency (e.g. ETH). Any transaction costs are to be paid by the Buyer (including, but not limited to gas fees).
6.3 If the payment is made in Fiat, the Buyer can choose between the following payment methods: Stripe, Mastercard, SEPA direct debit, Visa.
6.4 For the processing of a payment that is not made via PayPal, Creatokia uses the service provider Stripe. Stripe will also carry out the credit check.
6.5 The chosen Fiat payment will be debited immediately after the conclusion of the purchase agreement.
6.6 The Seller is responsible for the fulfillment of any tax obligations under the law applicable to him, which may arise from the transaction. If VAT or similar taxes on the (re)sale of Content or related (ancillary) Services will be triggered, the Publisher and Creatokia will meet any tax obligations and requirements applicable to them. In any case the purchase price includes the VAT or similar taxes if any.
6.7 External costs (so-called Gas Fees) are incurred for transactions via the blockchain, in particular the minting of NFTs. Gas fees are also incurred when the content is bought with crypto currency (ETH). These are external costs which cannot be influenced by Creatokia. The amount of Gas Fees can only be determined immediately prior to the purchase of Content and will be communicated in the ordering process; it may vary from purchase to purchase. Gas Fees are always with the Buyer and are payable in addition to the purchase price.
6.8 The Gas Fees communicated in the order process are valid for 10 minutes; if the purchase process is not completed within this period, Creatokia will cancel the purchase process. A User who wants to purchase Content must then initiate the purchase process again.
7.1 The rights that a Buyer acquires depend on the type of Content as defined by the Publisher in its Offer.
7.1.1 For Digital Content, the Publisher's license terms as part of the Offer shall apply.
7.1.2 The Buyer of a Service is entitled to require from the Seller to provide the respective Service acquired. The type, scope, place and time of the Service are part of the Offer.
7.1.3 The Buyer of a physical item is entitled to request delivery and transfer of ownership of the item from the Seller. Delivery conditions are part of the Offer.
7.2 The Seller may include additional provisions in the Offer.
7.3 In any case it is the liability of the Seller,
8.1 For Digital Content, the Buyer has the option of access to the Content via Creatokia.
8.2 The User must verify itself via the token ID (of the purchased NFT) in the Wallet. As far as no NFT exists yet (clause 5.2.2), the verification is made via the Buyer's user account at registered Creatokia.
8.3 If Creatokia ceases to operate, Users will be given the option to make a copy of the Digital Content.
9.1 The Offer and Content may not violate legal regulations. Creatokia may not be used for illegal or criminal acts, in particular infringements of intellectual property, competition violations, fraud or money laundering.
9.2 A Buyer is obliged to make a resale only in accordance with and under the conditions of the purchase agreement with the initial Seller/Publisher.
9.3 The Seller of an auction drop is not entitled to bid on its own Offer or let other Users bid on the Seller's account and/or behalf.
10.1 Creatokia intends to keep the Creatokia platform constantly available. However, there may be times the Creatokia platform cannot be operated. This occurs in particular in the event of necessary maintenance to remedy technical faults. Maintenance will be communicated in advance whenever possible.
10.2 Creatokia guarantees availability of the Platform for at least 95 % of the time during a calendar month. Temporary restrictions of the availability that are below this threshold do not constitute a bad performance of the User Agreement.
10.3 Creatokia is entitled to restrict the access to an individual User or all Users if there is an objective reason to do so; such objective reason shall include, but is not limited to, a regulatory licensing obligation of Creatokia with respect to the provision or administration of NFTs.
10.4 Creatokia is entitled to amend or update the offered services on Creatokia at any time or to offer different services, especially if and as far as
• Creatokia is legally obliged to do so;
• Creatokia thereby complies with a court ruling or an official decision;
• the respective amendment is technically necessary or required at Creatokia's discretion, inter alia, in order to close existing security gaps or to maintain or improve the functionality; if this is necessary for this purpose, Creatokia will replace an NFT or a Smart Contract with a new NFT or Smart Contract at its own expense.
• the amendment is only beneficial to Users; or
• the amendment is of a purely technical or procedural nature with no significant impact on Users.
10.5 Clause 10.4 applies accordingly to amendments made by a Publisher.
10.6 Creatokia will make amendments and updates only if there is an objective reason and will inform the User about this.
11.1 The User acknowledges that
• the Seller alone is liable for the Offer and the execution. For the value of an Offer as well as the enforceability of a claim regarding the Content Creatokia assumes no liability.
• a Smart Contract is inherently unstoppable and immutable (Clause 5.1),
• Creatokia and Publishers have no control over external circumstances that may cause Content or Cryptocurrencies or NFTs to be lost,
• a Smart Contract may have technical inadequacies and therefore a modified or new Smart Contract may have to be created,
• Cryptocurrencies can be subject to extreme fluctuations in value;
• for technical reasons, there may be delays in displaying a new Offer or assigning an NFT to Content;
• no final legal, in particular regulatory, regulations exist to date that address blockchain technologies, Cryptocurrencies, or tokens (including NFTs), and new legal regulations or guidelines may materially affect the development of the use of the Creatokia platform, the sale and acquisition of Content, or the use of NFTs.
11.2 The User acts on its own liability if it uses third party services in connection with Creatokia (especially for the management of its Wallet) and is obliged in its own interest to choose secure access data for such services and to treat them confidentially which includes, but is not limited to, not to allow other persons to have access or make use of such services. The User itself is liable for damages resulting from such precautionary measures.
12.1 In the event of material defects or defects of title, the Buyer has a claim with respect to (i) subsequent performance in the agreed and acceptable manner and within a reasonable period of time, (ii) withdrawal, (iii) reduction of fees, charges and prices or (iv) compensation for damages against the Seller. Such claims are time barred with two years. Time-barring begins in the case of a permanent provision with the end of the Content period and otherwise when the Content has been provided.
12.2 As far as Creatokia is liable to Users or third parties from contractual, quasi-contractual and legal, including tortious, claims for damages and reimbursement of expenses this liability is excluded, unless:
12.3 In the event of a less negligent breach of a Material Contractual Obligation, damages shall only be payable up to an amount of the foreseeable and typical damages, unless the respective damages are also payable on another legal basis. "Material Contractual Obligations" are obligations whose non-fulfilment endangers the achievement of the purpose of the agreement, whose fulfilment is required for proper execution of the agreement and on whose compliance a contractual partner may regularly rely on.
12.4 The above liability also applies to the corporate bodies, employees and contractors of Creatokia.
12.5 All provisions in clauses 12.2 to 12.4 also apply to Publishers.
13.1 A Seller indemnifies Creatokia on first written notice from all claims, which other Users or third parties assert against Creatokia because of alleged infringement of their rights from the Content or because of other use of Creatokia by the Seller.
13.2 In case of a claim against Creatokia by Users or third parties, a Seller is obliged to provide immediately, truthfully and completely all information necessary for the examination of the claims and a defense.
13.3 A Seller is obligated to reimburse Creatokia with respect to the defense of User's or third party's claims for necessary costs of legal defense, including all court fees and in a reasonable amount attorney fees.
13.4 This indemnification obligation shall not apply if the Seller is not liable for the infringement.
14.1 This Agreement is concluded for an indefinite period of time. It may be terminated by either party at any time using the termination function available on the Creatokia Platform. Creatokia is also entitled to terminate in accordance with clause 1.6.
14.2 This Agreement does not end, however, but is extended until the end of the offer period of a T- or auction drop, provided that the Offer period extends beyond the termination date of this contract. The User can no longer post new offers after termination.
14.3 The right to extraordinary termination for good cause remains unaffected. A good cause exists in particular:
• if the User provides false data
• in the event of default on the part of the User with regard to his payment obligations;
• In case of extraordinary termination of the contract by Creatokia, the User is not entitled to register again.
14.4 With the termination of this Agreement, the User loses access to its user account.
15.1 If a Buyer is a consumer, the Buyer has the right to cancel this Agreement, or a Purchase Agreement concluded on Creatokia within fourteen days without giving reasons.
15.2 However, a Buyer, by entering into the Purchase Agreement, agrees that Creatokia or the Seller shall commence performance of the Agreement prior to the expiration of the cancellation period and acknowledges that upon commencement of the performance of the Agreement, the Buyer shall lose its right of cancellation.
15.3 Insofar as the purchased Content includes a Service (clause 4.2), the Buyer agrees upon conclusion of the Purchase Agreement that the Seller may commence performance of the contract, if applicable, prior to expiry of the cancellation period, and confirms that the Buyer loses its right of cancellation upon complete performance of the Service.
15.4 The right of cancellation does not apply to contracts
• for the delivery of goods which have been manufactured according to customer specifications or which are clearly tailored to personal requirements, or which are not suitable for return due to their nature,
• for the delivery of audio or video recordings or of software, provided that you have unsealed the delivered data carriers,
• for the supply of data not on a physical medium, produced and made available in digital form (Digital Content), where the Buyer has explicitly consented to the Publisher commencing performance of the contract before the expiry of the cancellation period and the Buyer has confirmed his knowledge that by consenting the Buyer loses its right of cancellation on commencement of performance of the Agreement, and
• if the price of the respective Service depends on fluctuations on the financial market over which the party has no influence and which may occur within the cancellation period, i.e., even if the purchase price is to be paid in cryptocurrency.
15.5 The cancellation policy for the purchase of Content is provided by the Publisher in the Offer.
15.6 The following applies to Creatokia's services:
Right of cancellation
You have the right to cancel this contract within fourteen days without giving any reason.
The cancellation period is fourteen days from the date of conclusion of the contract.
In order to exercise your right of cancellation, you must inform us (for the cancellation of the contract: Creatokia GmbH, Voltastraße 1, 60486 Frankfurt am Main, Fon +49 (0)69 9072006-0, Fax +49 (0)69 9072006-97, contact(at)creatokia.com) by means of a clear declaration (e.g. a letter sent by post, fax or e-mail) of your decision to cancel this contract. You can use the enclosed model cancellation form, which is not prescribed.
In order to comply with the cancellation period, it is sufficient that you send the notification of the exercise of the right of cancellation before the expiry of the cancellation period.
Consequences of cancellation
If you cancel this Agreement, we must repay you all payments that we have received from you, including the delivery costs (with the exception of the additional costs resulting from the fact that you have chosen a type of delivery other than the cheapest standard delivery offered by us), without delay and at the latest within fourteen days from the day on which we received the notification of your cancellation of this Agreement. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment.
If you have requested that the services begin during the cancellation period, you must pay us a reasonable amount corresponding to the proportion of the services already provided up to the point at which you notify us of the exercise of the right of cancellation with regard to this Agreement compared to the total scope of the services provided for in the Agreement.
The following form can be used to declare the cancellation, but it is not mandatory:
Sample cancellation form
(If you wish to cancel the contract, please fill in and return this form).
- To Creatokia GmbH, Voltastraße 1, 60486 Frankfurt am Main,
Fon +49 (0)69 9072006-0, Fax +49 (0)69 9072006-97, contact(at)creatokia.com
- I/we (*) hereby cancel the Agreement concluded by me/us (*) for the purchase of the following
- Goods (*)/the provision of the following service (*)
- Ordered on (*)/received on (*)
- Name of the consumer(s)
- Address of the consumer(s)
- Signature of the consumer(s) (only in the case of notification on paper)
(*) Delete as applicable.
Creatokia is entitled to transfer its rights and obligations under this Agreement in whole or in part to affiliated companies (§ 15 (1) German Corporation Act). Creatokia will inform about this in text form to the User's last known e-mail address in due course, at the latest, however, with a notice period of six (6) weeks before the transfer and/or assignment of the Agreement. In this context, Users have the right to withdraw from this Agreement.
17.1 All agreements or regulations referred to or referenced in this Agreement are an integral part of this Agreement.
17.2 The law of the Federal Republic of Germany shall apply to all legal relationships between the parties. In the case of consumers within the meaning of the German Civil Code or comparable foreign regulations, this choice of law shall only apply insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence.
17.3 If the User acts as a merchant, legal entity under public law or special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract is the registered office of Creatokia. If the User is domiciled outside the territory of the Federal Republic of Germany, the place of business of Creatokia is the exclusive place of jurisdiction for all disputes arising from this contract, if the contract or claims arising from the contract can be attributed to the professional or commercial activity of the User.
The EU Commission provides a platform for out-of-court online dispute resolution (ODR platform), which can be accessed at https://ec.europa.eu/consumers/odr. Creatokia is neither willing nor obliged to participate in a dispute resolution procedure before a consumer arbitration board.
Reservation of use: Use for text and data mining (Section 44b German Copyright Act) is reserved. This does not apply to text and data mining for the purposes of scientific research (Section 60d German Copyright Act).