Terms of Sale
MAINBOT SAS, a simplified joint stock company with a capital of EUR 3,807.33, registered in the Evry Trade and Companies Register under number 824 611 800, whose registered office is located at 73 rue Léon Bourgeois, 91120, Palaiseau in France (hereinafter “Company”).
The director of publication is Mr Boris Kesler.
Blockchain: Refers to the underlying blockchain technology on which the token is issued. The WINKIES issuance and exchange will be controlled by a Smart Contract executed on Ethereum or a similar blockchain network. Unless otherwise decided by the Company, WINKIES will meet the ERC20 standard. By extension, it also refers to every blockchain technology the Parties may use.
Cryptocurrency: Refers to cryptocurrencies accepted as a means of payment by Company for the Token Sale.
Currency: Refers to Euros accepted as a means of payment by Company for the Token Sale.
ICO: Refers to the series of transactions, pursuant to which the Company will sell the WINKIES to the general public.
Loss: Refers to losses, claims, injuries, delays, accidents, business interruptions, expenses (including, but not limited to, attorney’s or legal fees or expenses for any claims), any incidental, direct, indirect, general, special, punitive, exemplary, special or indirect losses, any losses of business reputation, loss of profits or any other economic losses, any loss of cryptocurrency or digital assets, any work discontinuation, loss of data, computer failure or malfunction or any other commercial or other loss.
Operation: Refers to the purchase of WINKIE(S) by a Purchaser during the Token Sale, from the Website and according to the Terms hereof.
Party, Parties: Refers to Purchaser and/or Company, the parties to these Terms.
Purchaser: Refers to any natural person or legal person, who is at least 18 years old, participating in the Token Sale or visiting the Website with a full legal capacity.
Terms (Terms of Sale): Refers to these terms of sale, that constitute a legally binding agreement between You and Company governing Your participation to the Token Sale.
Third-Party Services: Refers to any third party not operated by Company, but used to provide content or additional features to Purchasers such as payment service, application, marketing material, etc.
Website: Refers to the website www.getwinkies.com including any subdomains thereof, from where the Token Sale is available.
WINKIES: Refers to the token issued by Company for the purpose of the Token Sale and corresponding to the legal definition of article L. 551-2 of the French Monetary Code.
You, Your: Refers to Purchaser.
These Terms of Sale govern the Company’s issuance of WINKIES (the “Token Sale”).
Nothing in these Terms shall be considered to constitute a prospectus of any sort whatsoever or a solicitation of investment of any kind. These Terms and the Token Sale are not an offering to buy or sell any securities in any jurisdiction.
This document is not composed in accordance with and is not subject to any legislative or normative acts of any jurisdiction intended for the protection of investors.
Although Company makes an effort to ensure that any information contained in these Terms is accurate and current, this information does not constitute professional consulting advice. Company does not guarantee the accuracy, reliability, relevance, or completeness of any information contained in these Terms and does not accept any legal responsibility for it. Potential WINKIES holders shall consult relevant independent advisors prior to relying on any information provided herein or entering into any transactions based on this information. The material published herein is exclusively for informational purposes.
Please make sure to read these Terms carefully before any Operation and analyse the influence on your obligations, legal rights and responsibilities. Please get in touch with the Company if you have any questions. You shall not make an Operation if any of the provisions under these Terms are unacceptable to You.
If You do not agree to these Terms, and if You are not an eligible Purchaser, You should not use the Website and / or take any actions described on this Website, including purchasing WINKIES.
By participating in the Token Sale, You confirm that You have, in Your country, the capacity to contract and participate in such Token Sale. You are deemed to have read and accepted these Terms exhaustively and unconditionally. In the event You do not accept the whole or part of these Terms, You must immediately stop participating in the Token Sale.
Unless proven otherwise, the data recorded in Company provider’s computer system constitutes proof of Purchaser’s participation via the Website.
These Terms are accessible at any time on the Website and will prevail over any other version or any other contradictory document.
Company reserves the right to amend, add or delete any part of these Terms and any other documents on the Website at any time for any reason at its own discretion without any additional notifications whatsoever, including without any notices to You. You acknowledge and expressly confirm that if You make an Operation, You have accepted those amended Terms.
Company reserves the right at its own discretion to stop, change, or cancel any part of the Website, including but not limited to content, functions or hours of accessibility, if the Company considers that you have done something fraudulent, negligent or otherwise violated these Terms. Company will not be liable for any damages that may arise as a result of your use of the Website.
As these Terms may be subject to subsequent modifications, the version applicable to a Purchaser is the one in force on the Website on the date of placing an order for the participation in the Token Sale.
3.1 Token Sale
Company intends to make a public offering of its token WINKIES.
Purchaser understands and accepts that Company is unable to guarantee that the Service will ever be developed or will meet Purchaser’s expectations at the time of the Token Sale.
Participation in the Token sale will require creating a Purchaser’s account (“Account”) and the fulfillment of a certain number of obligations in the context of fraud and abuse prevention.
For the execution of the Token Sale outlined in these Terms, Company makes available to Purchaser:
an interface allowing Purchasers to fill in their digital asset wallet whose private key is exclusively under their control, to store the WINKIES purchased (the “Wallet”);
a platform allowing payments to be made by bank transfer, it being specified that the initiation and execution of the latter remain exclusively under the control of Purchaser; payments in Cryptocurrencies; and to purchase WINKIES.
Your investment in the Token Sale through the acquisition of WINKIES will enable the funding of the Service.
All the information regarding the Token Sale will be available on the website www.getwinkies.com (the “Website”).
Company hereby offers Purchasers the opportunity to acquire WINKIES in cryptocurrencies, euros and dollars
WINKIES corresponds to a utility token within the meaning of Article L. 552-2 of the French Monetary and Financial Code.
Subject to completion and success of the success as mentioned in the present Agreement and the White paper, the WINKIES will grant its Purchaser the ability to:
Pay for a life-time access to WinkyVerse including the WinkyGame and WinkyMaker universes;
– pay for in-game purchases as avatars and customizations;
– purchase premium games playable in the WinkyVerse;
– purchase a premium subscription called WinkyPlay giving early access to new games in the WinkyVerse;
– purchase a real Winky Robot with a 50% discount;
– advertise on WinkyPlay;
– vote in the WinkyVerse governance process
It is understood that Company does not manage WINKIES on behalf of Purchasers.
Purchaser acknowledges that it has chosen to acquire WINKIES in full knowledge and that Company has not been asked to provide advice in this respect. Purchaser understands all the characteristics and associated risks with a token including, but not limited to, economical, technological and operational ones, as set forth in Article 8.
Purchaser declares that Company has not solicited it in any form whatsoever, and that it has contacted Company directly to buy WINKIES.
Purchaser accepts and acknowledges that these tokens do not confer to their owners :
– any rights to participate in any decision-making or voting within Company;
– any rights to Company’s earnings;
– any economic or other interests in Company.
Purchaser acknowledges that it is fully aware that the WINKIES are in no way associated with ownership rights, voting rights or dividend rights. They do not constitute shares in Company or any other similar assets.
At the end of the Operation, these tokens will be issued on a Blockchain over which the Company has no right or responsibility. As such, Purchasers are familiar with these technologies and the relevant applications for using them
The Company will carry out the issuance of the WINKIES. It has no control or power of action whatsoever over the blockchain technology, the Ethereum protocol and network or the Smart Contract and its code in execution mode. Company can therefore not be held responsible for any factor that would in any way impact the performance of the Smart Contract, the WINKIES transmission system, the possession of the WINKIES sold or obeyed their ability to be used by Purchaser, including viewing of the WINKIES in a wallet compatible with ERC20 tokens or the transfer of these tokens to a third party tokens to a third party.
The acquisition of WINKIES by transferring Cryptocurrencies to the Issuer is Purchaser’s sole responsibility and shall be subject to the terms and conditions of the Ethereum protocol and network. The issuance of WINKIES is managed by a Smart Contract, Company is not required to refund or compensate in any way whatsoever any Purchaser whose Tokens have not been issued by the Smart Contract for any reason.
Once issued, the Tokens may be freely assigned or transferred to third parties by Purchaser, in whole or in part, at its sole initiative, whether for consideration or not. The Smart Contract alone shall assume full and complete responsibility for the conditions and consequences of such assignment or transfer of the WINKIES it holds. In particular, Purchaser may not claim from Company any possible loss of its WINKIES as a result of an error of any nature whatsoever occurring during the transfer, which takes place without any possibility of control or monitoring by Company.
4. Identification of Purchaser
Single Account. Purchasers may only take part in the Token Sale by using a single Account for private use only. Purchaser shall not create several accounts (multi-accounting) nor purchase Tokens on behalf of third parties (pooling).
Company reserves the right to suspend, without notice or compensation, any Purchaser’s participation in the Token Sale if such Purchaser does not comply with these conditions.
ID documents. Following current goods practices, Purchaser undertakes to provide, the following non-exhaustive documents list:
– for a natural person: a valid identity document
– for a legal entity: an extract from the commercial register and the director(s)’ valid identity document, both less than three months old.
5. Consent and withdrawal right
Consent. Purchaser gives his/her consent to perform an Operation by checking the box, certifying that the information he/she provided is up-to-date and that Purchaser has read and understood these Terms (the ” Consent“).
The Operation is authorized once he/she has given his/her Consent in the forms set forth above. However, the Operation will only be carried out once he/she has made a transfer from his/her personal bank account or cryptocurrency wallet, as set forth in Article 7.
Withdrawal right. When carrying out an Operation, Purchaser expressly waives his right of withdrawal following the provisions of Article L. 221-28 of the French Consumer Code: “The right of withdrawal cannot be invoked for contracts (…) for the supply of goods or services whose price is subject to financial market variations beyond the control of the supplier and which are likely to occur within the withdrawal period”.
Consequently, once the transfer of funds (Fiat or cryptos) has been made, the Operation will be irrevocable.
Company shall deliver the WINKIES by itself to the public address provided by Purchaser.
The Winkies sold during Round 1 come with a 2-month cliff starting January 1st 2022 and a 9-month vesting (11,11%/month) which means they will be delivered to the buyers following the schedule below:
– March 1, 2022: 11,11%
– April 1,2022 : 11,11%
– May 1,2022: 11,11%
– June 1,2022: 11,11%
– July 1, 2022: 11,11%
– August 1, 2022: 11,11%
– September 1, 2022: 11,11%
– October 1, 2022: 11,11%
– November 1, 2022: 11,11%
The Winkies sold during Round 2 come with a 1-month cliff starting January 1st 2022 and a 6-month vesting (16,66%/month) which means they will be delivered to the buyers following the schedule below:
– February 1, 2022: 16,66%
– March 1, 2022: 16,66%
– April 1,2022 : 16,66%
– May 1,2022: 16,66%
– June 1,2022: 16,66%
– July 1, 2022: 16,66%
The Winkies sold during Round 3 will be delivered right before the listing on crypto-currency exchanges Uniswap and Pancakeswap in the 30 days following the end of the ICO.
7. Financial conditions
Price. The price of the WINKIES will be displayed on the Website before any transaction and may change at Company’s discretion. The prices of Winkies will be :
– 0,006€/token during Round 1
– 0,008€/token during Round 2
– 0,01€/token during Round 3
Purchaser shall bear the network fees (or transaction fees).
Retention of title. Company keeps ownership of the WINKIES until full payment by Purchaser. If the price is unpaid on the agreed due date, Company may take back all or part of the WINKIES. It is expressly agreed that any deposits might be retained as an indemnification.
8. Risk factors
The WINKIES do not constitute financial instruments within the meaning of Article L. 221-1 of the French Monetary and Financial Code and do not confer any rights other than those described in these Terms. In addition, the regulatory framework applicable to the offer and the WINKIES as well as the tax regime applicable to the holding of the WINKIES are not currently defined in certain jurisdictions.
Economical risks. You are aware that the Crypto-currencies operate in a network without intermediaries and do not benefit from legal tender, unlike currencies issued by central banks. They are digital assets whose value is not guaranteed and depend on unregulated markets (fraudulent acts may occur under traditional financial regulation).
Then, You acknowledge to be aware of the following economical risks :
– Loss. If the Service is finally not developed or cannot function permanently, the WINKIES will not be refunded. The owners of WINKIES acknowledge that this is a significant risk that they accept; Insofar as it is not certain that there will be interested in the Token Sale, in whole or in part, or even in the Services related to the Token Sale, Purchaser are warned that the offer and the exchange value of the WINKIES in domestic and / or foreign currency is not guaranteed and is likely to fluctuate upwards or downwards and may even lose all value. Purchasers should not purchase WINKIES if they are unable to bear the consequences of such a loss;
There is no guarantee that Purchaser will be able to resell his or her WINKIES or that they will enable him or her to obtain products or services other than those covered by the Token Sale;
– Valuation. The exchange value of the WINKIES for Currencies or Crypto-currencies is correlated to the liquidity on crypto asset trading platforms;
– Absence of a secondary market. There is no guarantee of WINKES liquidity as well as the existence of a secondary market. As a result, Purchasers may not be able to sell their WINKIES easily or at prices that would provide them with a valuation gain comparable to similar investments benefiting from a developed secondary market;
Market volatility. There is a high probability of market volatility resulting from both intrinsic and external factors in WINKIES. Thus, it is likely that the market value of WINKIES is highly correlated with the value of the main Crypto-currencies. Also, in the event of volatility, the market value of WINKIES could be lower than the value of the Service to which they give access or the purchase price, discounted or not, of the WINKIES. Consequently, You are exposed to high risks of Loss in the event of a drop of Crypto-currencies’ value, since the authorities or Company will not be able to compensate you or guarantee a minimum amount;
– Technological risks. You are aware that Cryptocurrencies are based on Blockchain.
Then, You acknowledge to be aware of the following technological risks :
– Errors or security flaws allowing hacking or theft of data from the transmitter or the WINKIES issuing platform;
– Loss or theft of Purchaser’s private keyholder;
– Device for safeguarding digital assets;
– Protocol failure on which the WINKIES are issued and the platforms on which the WINKIES can be exchanged. There may be a risk of malfunctioning inherent in any computer program, and a failure is always possible despite controls carried out.
– Operational risks. You acknowledge to be aware of the following operational risks :
– Failure in the launch or the technical and operational development of the Token Sale;
– Substantial modifications to the Token Sale and the rights attached to it;
– Requalification of the scope of the offer from the point of view of consumer rights. If jurisdiction were to consider that another title of consumer law is not a situation of offering digital content not provided as material support but rather a financial service, the clause of renunciation of the right of withdrawal following the provisions of Article L. 221-28 of the French Consumer Code, as provided under the Token Sale may not meet the legal requirements;
– Lack of visibility on the regulations applicable to the token offer in all jurisdictions in which the WINKIES are issued, as well as the applicable taxation.
Therefore, You warrant that You exercise the utmost vigilance before considering investing part of Your savings through the Company.
9. Company’s obligations
Company warrants that Purchaser has full ownership of WINKIES acquired and remains responsible for these tokens until they have been sent to Purchaser’s public address.
Company undertakes to implement all the necessary means to ensure the best delivery of WINKIES. However, Company can only be bound by an obligation of best endeavour for the delivery of WINKIES sale.
10. Liability of Company
Limitation of liability. Company undertakes to perform its obligations with the care customary in its profession and comply with the rules of the art in force, is only bound by an obligation of means. Thus, Purchaser can only engage Company’s liability under the proof of intentional and wrongful behaviour regarding its responsibilities and exclusively if this behaviour has caused it effective, personal and direct damage.
To the extent permitted by law, Company’s liability to a Purchaser under any or all provisions of these Terms shall be limited to the amount paid by Purchaser for the purchase of WINKIES during the Token Sale.
Exclusions of liability — In particular, Company shall not be held liable for any claims :
– resulting from the loss, loss of confidentiality or theft of Purchaser’s Account connection information (including his/her password), or the theft of identity or the loss of Account which results therefrom;
– resulting from the theft or loss by Purchaser of the private key(s) required to access their wallet (external) storing Crypto-currencies;
– resulting from fraudulent use by Purchaser of his/her WINKIES;
– resulting from administrative, fiscal and social procedures in force and mandatory in the country of Purchaser;
– occurred or aggravated due to the action, intervention or omission of Purchaser;
– resulting from the communication of incomplete or erroneous information by Purchaser related to the Company’s AML/FT requirements;
– resulting from the unavailability of reasonable non-cooperation of Purchaser with the recovery efforts undertaken by Company;
– indirect, special, exemplary, punitive, consequential or related damage, including loss of profits, reputation or data, in any way related to the use or inability to use, purchase or lack of opportunity to purchase WINKIES, or arising out of or in connection with any provision under these Terms;
– resulting from a refusal of a bank transfer;
– the amount an error of Purchaser in the amount of money and the corresponding amount of Crypto-currencies transferred by Purchaser’s bank account to Company, for any reason whatsoever;
– resulting from a malfunction between Company’s blockchain address and Purchaser’s blockchain address, not caused by Company;
– resulting from the requirements and risks inherent to the protocol (in particular volatility of Crypto-currencies prices, Operations costs, etc.);
– resulting from the blockchain technology;
– resulting from a bug, computer virus, accidental or intentional malfunction (cyberattack) of the software used;
– resulting from any issues linked to Company delivered by our partners, including but not limited to: Synapse, Tallium…;
– data losses of Purchasers not being imputable to it;
– resulting from a delay in delivery due to a cause beyond Company’s control (i.e., network congestion);
– resulting from external factors impacting Company or the Token Sale, initiated by a malicious or non-malicious third party such as a theft, alteration, destruction or unauthorized access to Company;
– resulting from non-compliance with the country’s legislation, in which WINKIES are acquired unless in France.
Force Majeure Event — Company shall not be liable for its failure to perform any of its obligations to Purchaser hereunder, during any period in which such performance is delayed by circumstances beyond its reasonable control including but not limited to fire, flood or any other natural disasters, epidemics, war, embargo, strike, riot, Elon’s tweet, inability to secure materials, the blocking or interruption of telecommunications networks, the absence or suspension of electricity supply by the supplier, regulatory changes affecting the activity of Mining or the management of digital assets, anomalies that may affect the markets for digital assets (exceptional fluctuations, suspicion of price manipulation, technological or protocol advances, etc.), the intervention of any governmental authorities or any other events preventing the normal execution of the Token Sale (hereinafter a “Force Majeure Event”). If a Force Majeure Event occurs, the Company shall notify Purchaser as soon as possible of such an event preventing the Token Sale’s normal execution.
11. Purchaser’s obligations
Accurate blockchain public address. Purchaser declares that the blockchain public address he provided is accurate and acknowledges that Company’s obligations will be fully satisfied once the WINKIES have been paid to such public address. Purchaser acknowledges that it is solely responsible for the provision, accuracy and security of such address.
Transfer of risk. Notwithstanding the delayed transfer of ownership until full payment has been received, Purchaser assumes the risks associated with the holding or use of the WINKIES upon delivery. Moreover, Purchaser shall not resell all or part of the WINKIES until then.
Purchaser guarantees Company :
– to use WINKIES only following these Terms, without derogating from them;
– that his wallet is under his/her sole control and that Company does not, in any manner whatsoever, have access or monitor the Cryptocurrencies it contains;
– against any event, preventing the use of its private key and giving access to its owb wallet;
– against any errors in the amount of money sent to Company from Purchaser’s bank account;
– against any breaches, exceeding the foreseeable risk, that could result from the use of Company by a Purchaser;
– against fraudulent, unfair or bad faith use of Company, especially if this interferes with the use of Company by other Purchasers;
Company reserves the right to suspend or delete a Purchaser’s Account in violation of these Terms, without prior notice or compensation.
12. Intellectual Property
Parties undertake, throughout these Terms and without any time limit after the expiry of such Terms, for any reason whatsoever, to maintain the utmost confidentiality, by refraining from disclosing, directly or indirectly, any information, knowledge or know-how whatsoever concerning their co-contracting Party and their operating methods, to which they could have had access in the course of the performance of these Terms unless such information, knowledge or know-how has fallen into the public domain or its disclosure is made necessary under a special regulation or an administrative or judicial injunction.
All intellectual property rights on the Website content, excluding Purchasers generated content, are Company’s property. They are provided free of charge within the exclusive framework of the use of Company. Therefore, any use, total or partial, of these contents without Company’s prior permission is unlawful.
Company is Company’s database producer. Any unauthorized extraction or reproduction from Company’s database is prohibited.
The Website may contain hyperlinks or content from Third-Party Services. Such Third-Party Services may be subject to different terms and conditions and privacy practices.
Company shall not be liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services.
Hyperlinks to such Third-Party Services are not an endorsement by the Website of such Third-Party Services.
In this respect, please note that Company has no control over and does not monitor the content published by these third parties. Consequently, Company shall not be held liable for any contents published by any third party whatsoever.
Hyperlinks redirecting to the Website are only authorized subject to Company’s prior written consent.
14. Personal Data
Company does not ask you to provide any personal information unless Company needs it.
Failure by Company at any time to require the other Party to perform any of its obligations under these Terms will not affect the right of Company to request their execution thereafter.
The nullity of any clauses of these Terms does not affect the validity and the obligation to respect the other clauses.
16. Exception of non-performance
It is recalled that under article 1219 of the French Civil Code, each Party may refuse to perform its obligation if the other Party does not perform its obligations and if this non-performance is severe enough. The suspension shall take effect immediately upon receipt by the defaulting Party of the notification by the suffering Party indicating the intention to apply the exception to non-performance notification by registered letter with acknowledgement of receipt or on any other durable written medium allowing proof of sending.
This option is used at the initiating Party’s own risk.
These Terms replace and cancel any previous oral or written commitments relating to the subject of these Terms.
Each provision of these Terms is severable and distinct from the others. If a provision is or becomes illegal, invalid or unenforceable to any extent, it must be severed from the remainder of the contract.
This does not affect the legality, validity, or enforceability of any other provisions of these Terms, which continue in full force and effect. The illegal, invalid or unenforceable provision must be replaced by a legal, valid and enforceable substitute provision which corresponds as closely as possible with the actual intent of the Company or Purchaser under the illegal, invalid or unenforceable provision.
These Terms must be interpreted as if they had contained the substitute provision from its entry into force.
19. Complaints and support
Company has established and maintains an effective procedure for the reasonable and prompt handling of Your complaints and questions linked to Company. Any complaints or questions can be sent to the Company at the following email address [email protected] or by post to the attention of Mainbot, 64 rue du Dessous des Berges, 75013, Paris, France.
Company shall acknowledge receipt of the complaint within a maximum of fifteen (15) working days from the receipt of Your complaint. Unless duly justified circumstances require otherwise, You will be provided with a response within two (2) months of receipt of Your complaint.
20. Jurisdiction and applicable law
20.1 Applicable law
These Terms are governed by French law.
In the event of a dispute, Purchaser is invited to make a complaint in accordance with Article 19 above.
No action may be brought against Company without prior formal notice by registered letter with return receipt requested.
Purchaser is informed that he or she may seek conventional mediation in any event, particularly with the French Consumer Mediation Commission (Commission d’évaluation et de contrôle de la médiation de la consommation), or to any alternative dispute resolution method. Purchasers can also contact the online dispute resolution service of the European Commission at the following address: https://ec.europa.eu/consumers/odr.
Unless otherwise provided by law, any claims or disputes resulting from or arising out of Your use of Company shall be submitted to the exclusive jurisdiction of the Paris Court of Appeal.