Top Shelf International Pty Ltd – NFT Terms and Conditions

Top Shelf International Pty Ltd – NFT Terms and Conditions

Date of last revision: 30 November 2021

Introduction

Parties and general terms

Top Shelf International Pty Ltd (ACN 164 175 535) (and its subsidiaries and affiliates) (we, our, us, TSI) is a company incorporated in Australia, specialising in the production of spirits.

These are the terms and conditions (Terms) on which TSI supplies, and which form part of, your non-fungible token (NFT).

The NFT entitles you to the rights under these Terms which are unique to you represented by the Products and Experiences set out in the schedule to these Terms, and which you acquired on the Marketplace.

The term 'you' refers to the person purchasing the NFT on the Marketplace, or the company or organisation on whose behalf that person purchases the NFT on the Marketplace, and to any subsequent person to whom you sell the NFT you purchased from us.

You understand that by purchasing this NFT on the Marketplace or subsequently from any third party, you are agreeing to these Terms. If you do not agree to these Terms, you must not proceed to purchasing this NFT.

Defined terms

In these Terms, these terms are defined as follows:

Digital Wallet means the digital wallet or e-wallet, unique to and controlled by you, being an electronic device, online service, or software program that allows one party to make electronic transactions with another party exchanging digital currency units for goods and services, the details of which are provided by you to us and which is capable of taking a transfer of the NFT as contemplated by these Terms.

Experiences means the information, experiences and events which we are required to provide to you under these Terms in relation to your NFT;

Marketplace means the platform on which you purchased this NFT which, as at the date of these Terms, was the platform offered by Mintable marketplace at www.mintable.app); and

Products means the agave spirits in final packaged form (whether bottled, barrelled or packaged in some other form) which we are obliged to deliver to you under these Terms in relation to your NFT.

Acceptance of Terms

By purchasing this NFT, you acknowledge and warrant that you have read, understood and agree to be bound by these Terms. These Terms form a legally binding agreement between TSI and you. If you do not agree to these Terms, you must not proceed to purchase the NFT.

By purchasing this NFT, you will be required to register your details on the dashboard located at nft.australianagave.com.au/dashboard (Dashboard) and to login to the Dashboard to gain access to the Products and Experiences associated with this NFT.

These Terms incorporate:

the Dashboard’s terms and conditions which govern the use of the Dashboard and are located at nft.australianagave.com.au/dashboardterms-of-use (Dashboard Terms);

and TSI’s privacy policy, located at https://www.australianagave.co... (Privacy Policy),

• which may be updated from time to time, and should be read together with these Terms.

In the event of any inconsistency between these Terms, the Dashboard Terms and the Privacy Policy, these Terms will prevail.

You understand that you will not be able to receive the Products or Experiences or redeem your NFT until you register your details and log in to the Dashboard in accordance with these Terms and the Dashboard Terms.

Purchase of NFT

• This clause 5 only applies to the initial purchase of the NFT from TSI on the Marketplace and does not apply to any subsequent resale of the NFT.

The Initial Price for this NFT is set out in the Schedule to these Terms and is also contained in the NFT Description section on the Marketplace.

Once you have purchased the NFT for the Initial Price, you may engage in a secondary sale or trade the NFT on any platform at a price of your choosing.

The transfer of the NFT to your Digital Wallet will occur simultaneously with your payment of the Initial Price.

Unless otherwise notified by TSI, the Initial Price for the NFT is inclusive of all delivery and any other applicable charges.

TSI reserves the right to cancel a purchase and refund the Initial Price to you (in the same form of currency used for the initial transaction, or at our option, in Australian dollars equivalent to the value of the digital currency used on the date the Initial Price was paid) if:

The Marketplace does not give effect to or complete your purchase;

TSI is unable to complete your NFT purchase due to causes beyond its reasonable control; or

your credit card transaction has been cancelled or reversed or becomes invalid for any reason.

Details of what you are purchasing, and important acknowledgements by you

What you are purchasing

Under these Terms you are purchasing from TSI:

The NFT, which is delivered to you upon transfer of the NFT to your Digital Wallet by the Marketplace;

The unique contractual rights under these Terms to the Products and the Experiences (as described in Schedule 1), which contractual rights commence upon the transfer of the NFT to your Digital Wallet on the Marketplace.

Title and risk

Title to the NFT passes to you upon payment of the Initial Price in full and transfer of the NFT to your Digital Wallet by the Marketplace.

Risk in the NFT passes to you upon receiving the NFT in your Digital Wallet on the Marketplace.

In relation to your rights under these Terms:

Title to and risk in your rights under these Terms passes at the same time as title to and risk in the NFT pass to you;

Consistent with the acknowledgements you make below (including at clause 4.3.5) you acknowledge that you do not obtain title to any assets of TSI pursuant to these Terms, save that immediately upon us completing the packaging of the Products, title to those Products passes from TSI to you;

Risk in the Products passes from TSI to you at the same time as title passes to you or at such later time as we determine in accordance with the terms and conditions which apply to delivery of the Products.

Important acknowledgements by you

You acknowledge each of the following:

(No restriction on our use of funds) The Initial Price which you pay for the NFT, and any other moneys you apply in respect of the NFT (Payments) are paid direct to us and becomes our property, which we can apply as we see fit, and we are under no obligation to apply those funds to any particular purpose (nor specifically, to agricultural purposes nor to any plants which relate to this NFT);

(No pooling) Your Payments are not pooled with payments made by any other person and once your Payments are made on the Marketplace you have no right, title or interest in those moneys;

(Customer and supplier only – no other relationship) Your relationship with us is strictly limited to the contractual relationship of customer (you) and supplier (us). We are contractually obliged to deliver to the NFT holder the Products and the Experiences, and nothing else. Our relationship with you is purely contractual and you acknowledge that there is no partnership relationship between you and us, you are not engaged in any form of common enterprise or business with us, and you are not in any form of common enterprise or business with any other NFT owner. We do not hold any asset or property on trust for you;

(No investment) The Payments do not constitute an investment of any kind and we are not required to (and we will not and we have no intention (and will never have any intention) to) use the Payments to generate any form of financial return or other benefit for you;

(No ownership or other interest in plants or our assets) By purchasing your NFT you:

do not obtain any ownership right, title or interest in any of our assets, including the plants which relate to your NFT or the land on which they are growing;

expressly agree that you do not have any profit a prendre relating to those plants or land, and the only ownership right, title or interest you obtain is to the Products once they are packaged and ready for delivery; and

expressly agree that you are not permitted to register any form of security interest, caveat, profit a prendre or other form of interest over any of TSI, TSI’s assets or TSI’s business or undertaking.

(No ownership or other interest in TSI)

By purchasing your NFT you do not obtain any ownership right, title or interest in TSI or TSI’s shares or assets;

The NFT does not attach any ownership, voting or profit-sharing rights in TSI or TSI’s assets; and

the NFT does not grant you the right to acquire any of TSI’s shares or any financial products at a future date.

(Location of distillation)

The Products supplied to you may be distilled at any location at TSI’s sole discretion;

TSI makes no representation with respect to the location of the distillation of the Products; and

TSI will not be required to distil the Products in any particular location.

(Secondary sales of the NFT) TSI will receive a royalty fee of 5% on any secondary sale of the NFT on any platform.

Damage to agave plants

If any of the geo tagged agave plants are damaged or destroyed due to reasons which are beyond TSI’s reasonable control (for example due to flood, fire, disease, pests or otherwise):

TSI will notify you through the Dashboard of the extent of the damage;

TSI will, depending on the extent of the damage and as far as reasonably practicable, and in its sole discretion, do any of the following:

substitute the same number of agave plants, from the same plantation (Replacement Plants), with similar characteristics and of a similar age to those agave plants which were destroyed, in order to produce replacement products similar to the Products (Replacement Products);

where it is not practically possible to provide Replacement Plants, and depending on the availability, substitute the same number of agave plants, from the same or a different plantation (New Plants) in order to produce new products of a similar value to the Products (New Products); or

refund to you the total amount of the Initial Price in Australian dollars or in digital currency, at TSI’s option.

Where reasonably practicable, the Replacement Plants or New Plants (as the case may be) which will produce the Replacement Products or the New Products will be geo-tagged by TSI;

TSI will deliver to you the Replacement Products or the New Products, as the case may be, distilled from those substituted plants;

All references to ‘Plants’ in these Terms will be replaced with ‘Replacement Plants’ or ‘New Plants’ as the case may be;

All references to ‘Products’ in these Terms will be replaced with ‘Replacement Products’ or ‘New Products’ as the case may be;

You understand and agree that the Replacement Products or the New Products will no longer be linked to the geo-tagged agave plants specified in the Dashboard;

You understand and agree that if TSI elects to provide New Products distilled from New Plants, then the production and the supply of the New Products may take longer than it otherwise would if you were receiving the Products; and

The supply of the Replacement Products or the New Products, or the refund of the Initial Price to you in accordance with clause 4.4.2 will be TSI’s sole obligation to you with respect to the damage or destruction of the agave plants.

Redeeming the NFT

TSI will notify you in advance (either in writing by email or through the Dashboard) when you may redeem the NFT and receive shipment of the Products associated with the NFT. Service of that notice, and redemption of the NFT, may occur at any time prior to expiry of the Term.

On the date of shipment by TSI or collection by you of all the Products associated with the NFT to your nominated physical address, the NFT will have been redeemed and will be subsequently burned and will cease to exist. All rights associated with the NFT (including the right to access the Experiences) will terminate.

Shipping and delivery

All quoted delivery or consignment dates are estimates only. We are not obliged to meet such dates and will not be liable to you by reason of delays caused by any reason whatsoever.

TSI is deemed to have delivered the Products when the Products are actually delivered to the delivery point nominated by you through the Dashboard, or where delivery to the delivery point is not made due to reasons which are your responsibility, the date when delivery would have been effected.

TSI may deliver the Products (or any part of the Products) by instalments (where, in TSI’s opinion, this is reasonable).

The Products supplied are intended for use in and will only be shipped and delivered to a destination within Australia. If you export the Products, it is your responsibility to ensure that the Products and the use to which they are put comply with the laws of the destination.

If you resell the Products, you must not, in connection with their resale, pay or offer to pay, money or any thing of value to any government official, entity or organisation, any political party, any candidate for public office, or their employees or relatives, for the purpose of influencing purchasing decisions or for any other improper purpose.

Acknowledgements

You acknowledge and agree that:

This NFT is not intended for speculative use, is not sold or represented to be financial product and nothing we publish is in any way financial advice to you or any other person;

The NFT may experience or may have extreme price volatility and may suffer from an extreme reduction in value;

TSI is not providing and will not provide any fiduciary, advisory, brokerage, exchange or other similar services to you or any other person;

you are solely responsible for any decision to enter into a transaction subject to these Terms, including the evaluation of any and all risks related to any such transaction;

all transactions entered into and conducted under these Terms are deemed to have occurred within the jurisdiction of Victoria, Australia;

we are not responsible for any Loss caused by your failure to act in accordance with our policies, procedures or in accordance with our reasonable directions;

you purchase this NFT entirely at your own risk and understanding and we have not made any representations or warranties as to the IT security or ongoing availability of this NFT or its associated Products and Experiences or that your access to use your NFT will be uninterrupted, timely or secure at all times;

you understand and acknowledge that your ownership of NFTs remains contingent upon you remaining in control of the NFT in your Digital Wallet;

we do not and cannot make any representation or give any guarantee there will be any use for, or any particular price available for the NFT;

we do not and cannot make any representation in relation to the functionality or appropriateness of your Digital Wallet and you are entirely responsible for its security, control, appropriateness and functionality; and

we do not represent or guarantee any outcomes, or any financial return from your acquisition of any NFT from us, save the ability to own the NFT and obtain the Products and Experiences associated with the NFT.

Warranties

Warranties by us

We represent and warrant that we are legally entitled to, and are capable of, selling the NFT and associated Products and Experiences offered for sale.

Warranties by you

You represent and warrant that in acquiring the NFT (from us or from another existing NFT holder):

you are of a legal drinking age and you are a permanent resident or citizen of Australia;

you have all necessary experience, resources, certificates, licences, permits and approvals to procure or purchase the NFT applicable in your jurisdiction, and that any transactions under these Terms or in your use of the NFT will be legal under the applicable laws of your jurisdiction;

you have full power and authority to accept these Terms by purchasing the NFT on behalf of yourself or the entity you are representing;

if you are contracting on behalf of an entity, that you have the right to bind such entity;

all information you supply is true and accurate as at the time it is given;

if we request, you will identify and substantiate the source of funds involved in transactions to acquire the NFT;

no digital currency transferred to us as part of a Purchase Price has been derived from any illegal or unlawful activity;

you will not use any Products obtained pursuant to these Terms in any illegal or unlawful manner or in connection with any illegal or unlawful activities; and

you have had the opportunity to obtain independent legal advice in relation to the terms and effect of these NFT Terms.

Termination

These Terms may be terminated with immediate effect:

by either party if any of the warranties given by the other party in clause 8 are breached; or

by either party if the other party commits any material breach of its obligations under these Terms and fails to remedy such breach (if capable of remedy) within 30 days of receipt of notice from the non-defaulting party requiring it to do so.

Termination of these Terms does not affect the rights of the parties which have accrued prior to termination.

Limitation of Liability

If the you are deemed to be a ‘consumer’ under The Australian Consumer Law, to the extent permitted by law, if TSI fails to comply with a guarantee applying under Part 3-2, Division 1, Subdivision A of The Australian Consumer Law (or equivalent State based legislation), TSI’s liability is limited, at the discretion of TSI,

in the case of Products to the:

replacement of those Products;

the supply of equivalent Products; or

the payment of the costs of replacing the Products, and

in the case of Services to the;

the resupply of the Services; or

the payment of the cost of resupplying the Services to you.

Subject to clause 11.1, to the fullest extent permitted by law, TSI excludes all implied representations, warranties, terms and conditions of any kind whatsoever (whether implied by common law, statute or otherwise) and the application or availability of any statutory rights (including any implied representations, warranties, terms or conditions or any statutory guarantees) in respect of these Terms or the Products or Experiences.

Notwithstanding any other provision in these Terms, and to the fullest extent permitted by law, neither party will, in any circumstances, be liable to the other party for any:

indirect or consequential loss or damage (which means loss or damage which does not arise naturally, according to the usual course of things, from the relevant breach of contract or tortious duty or other relevant act or omission); or

loss of profits, revenue, customers or goodwill,

• in relation to the provision of the Products or Experiences, in contract or in tort (including negligence) or otherwise in connection with the performance or any breach of these Terms.

To the fullest extent permitted by law, and without limiting the application of the provisions of this clause 11, TSI’s total maximum liability to you arising under or in connection with these Terms or the NFT will not exceed the Initial Price.

We will have no liability or responsibility for your compliance with laws or regulations governing the transfer and use of the NFT. Further, you are solely responsible for compliance with all applicable requirements of any laws, rules, and regulations of governmental authorities in your jurisdiction.

You acknowledge that neither we nor any of our employees, contractors, subcontractors, agents, partners, shareholders, directors or officers is, and will not be by virtue of providing the NFT to you, an advisor or fiduciary to you.

We will not be liable for the performance, errors or omissions of any third parties (including the Exchange).

GST

In this clause 12, words that are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as their definition in that Act.

Except as otherwise provided by this clause, all consideration payable under these Terms in relation to any supply is inclusive of GST.

If GST is payable in respect of any supply made by TSI under these Terms then, subject to clause 12.4, you will pay to TSI an amount equal to the GST payable on the supply at the same time and in the same manner as the consideration for the supply that is to be provided under the Terms.

TSI must provide a tax invoice to you before TSI will be entitled to payment of the GST payable under clause 12.3.

General

TSI may cancel or suspend delivery of the Products due to any fact, cause, thing or event beyond TSI’s reasonable control. TSI will not be deemed to be in breach of the Contract if it does so.

If TSI cancels delivery of the Products in accordance with clause 12.1, TSI will determine the proportion of undelivered Products due to such cancellation against the total amount of the Products available under the NFT (Relevant Proportion) and will, as soon as reasonably practicable, at TSI’s option either:

refund to you the Relevant Proportion of the Initial Price; or

substitute the Relevant Proportion of the Product with any other TSI products of a similar value.

The Terms, Dashboard Terms and the Privacy Policy:

constitute the entire agreement between the parties about the subject matter contained in it; and

supersede and cancel any contract, deed, arrangement, related condition, collateral arrangement, condition, warranty, indemnity or representation relating to the subject matter contained in it, that was imposed, given or made by a party (or an agent of the party) prior to you purchasing the NFT.

If a provision of these Terms is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a provision as required by this clause, that provision is severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions in the Terms.

These Terms are for the benefit of the parties and their successors and assigns. The parties and their successors and assigns are bound by these NFT Terms.

To the extent that any party purchases the NFT from you, they are deemed to have taken an assignment of these Terms as published at the time of the purchase and you must provide that party with a link or copy of these Terms. You cannot assign your rights under these NFT Terms except simultaneously with a permitted and effective sale of your NFT. You cannot transfer the NFT without assigning your rights under these NFT Terms.

We may assign our rights under these NFT Terms without your consent, including at any time.

A single or partial exercise or waiver of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right. No party will be liable for any loss or expenses incurred by another party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of the right.

Each party must promptly execute and deliver all documents and take all other action necessary or desirable to effect, perfect or complete the transactions contemplated by these Terms.

These Terms are governed by the law in the State of Victoria and the parties agree to submit to the non-exclusive jurisdiction of the courts of that State.

• 
  

NFT Information

Ethereum Contract Address	<##>
Token ID	<##>
Initial Price	USD8,000, to be paid in the equivalent amount of ETH
Serial Number	<##>
Field	<##>
Geo-Tagged Plants	The following plants will be geo-tagged within the Field: <##>
Description	One of a limited number of Australian Agave Project (AAP) Non Fungible Tokens. Ownership provides the right to the agave spirit (packaged in an NFT barrel and NFT bottles) from a micro distillation of 10 agave plants physically tagged and exclusively associated with this NFT on Australian Agave Project's Eden Lassie farm. The owner of this NFT must have an account within the AAP NFT Dashboard (<##hyperlink>) to redeem the entitlements from this NFT. From time to time throughout the Term the NFT owner will receive exclusive invitations to AAP events and bottled spirit.
Term	From the date of purchase of the NFT and until maturation of the Plants, distillation of the spirit and final packaging of the Products associated with this NFT.
Products	You will receive the yield from a single batch cycle using only agave from the Geo-Tagged Plants. The minimum yield volume of agave allocated to this NFT will be 35 litres of agave spirit. If the yield from the single batch cycle produces a greater yield than 35 litres of agave spirit, this would be provided to the NFT owner in bottle form.
Experiences	Access to the Dashboard You will receive exclusive AAP information through the Dashboard and may, from time to time, receive invitations to exclusive events as well as samples or tastings of AAP spirit.