Terms of Services
- ABOUT US
We are Cominted Labs Inc (collectively referred to as "Cominted Labs" "we" "our" or "us"), a limited liability company registered in Delaware under company number 6806981, having its registered office at 257 Old Churchmans Road street, in the city of New Castle, county of New Castle.
You can contact us here
- OUR WEBSITE AND THESE TERMS
The Cominted Labs NFT website ("Website") is a website which enables the purchase of non-fungible tokens ("NFTs") that will be generated through smart contracts, and recorded on the Ethereum blockchain.
This Terms of Service is a binding agreement that governs your access to and use of the Website, including without limitation, the purchase of the NFTs offered through the Website, your use of the software and services provided in connection with such NFTs, and any additional digital or physical offerings that may be made available by us in connection with such NFTs (collectively, the "Service").
CHECK RESTRICTIONS ON PURCHASE: In some countries, and for certain people or entities, there may be restrictions on the purchase of NFTs under applicable export control and sanctions laws and regulations or restrictions on the use of our Service, and therefore the use of our Service may be limited or restricted. See clause 14 for details.
- 'THE ANDROGYNOUS' NFT SERIES AND ARTWORKS
Francisca Oyhanarte has created 10,000 hand painted physical artworks, each of which has a unique number and title (each, an "Artwork"). As part of the sale of NFTs covered by this Terms of Service, one NFT will be generated for these Artworks and will be associated with that specific Artwork (each, a "Francisca Oyhanarte NFT").
Each Francisca Oyhanarte NFT will be generated through smart contracts and recorded on the Ethereum blockchain, and will be associated with a digital copy of the Artwork with which it is associated ("Digital Artwork"). That Digital Artwork will be stored off-chain.
This Terms of Service details how you can purchase, hold or redeem a Francisca Oyhanarte NFT and/or the Artwork.
- HOW TO BUY NFTS
- WalletsIn order to purchase a Francisca Oyhanarte NFT through our Website, you will need to install a browser extension called MetaMask. MetaMask is a non-custodial digital wallet and service provider that allows you to purchase, store and engage in transactions using cryptocurrency. Before you apply to purchase a Francisca Oyhanarte NFT as described below, we will ask you to download MetaMask and to connect and unlock your electronic wallet through your account with MetaMask. You will not be able to purchase a Francisca Oyhanarte NFT from us without completing this process.
- If you lose access to your MetaMask digital wallet (for example, you lose the physical device on which your wallet is stored and/or the password or seed phase that is required to restore the wallet) then you will not be able to access your Francisca Oyhanarte NFT.
- Application to Buy an NFTThe Francisca Oyhanarte NFTs are available for purchase only through our application process and only during the application period that we post on our Website or otherwise communicate to you ("Application Period"). During the Application Period, you may apply to purchase a Francisca Oyhanarte NFT and specify the number of Francisca Oyhanarte NFTs you wish to purchase on our Website. Once the Application Period has expired, we will inform applicants who we have selected as eligible to purchase a Francisca Oyhanarte NFT, and the number of Francisca Oyhanarte NFTs they may purchase. You acknowledge and agree that you may not be selected to purchase a Francisca Oyhanarte NFT and if you are selected, the number of Francisca Oyhanarte NFTs you are permitted to purchase may be different from the number you applied to purchase. Decisions about who may purchase a Francisca Oyhanarte NFT and the number that may be purchased will be made by us in our sole discretion. You acknowledge and agree that we are not under any obligation to disclose our selection process or criteria.
- You are required to purchase the full number of Francisca Oyhanarte NFTs that we allocate to you (which will not be more than the number you applied for). You cannot buy less than the number of Francisca Oyhanarte NFTs that we allocate to you, although you have the option to withdraw your application completely if you choose (e.g., if you request 5 Francisca Oyhanarte NFTs but are only allocated 3, you must buy all 3 Francisca Oyhanarte NFTs or none at all).
- We will notify you of the outcome of your application as soon as reasonably practicable. If your application is accepted, we will notify you by the email you provide to us during the Application Period that your application was accepted and specify the number of Francisca Oyhanarte NFTs you are eligible to purchase (the "Notification"). You can check the status of your application at any time by logging into your account on our Website.
- If your application is accepted, you may be required to provide certain identification information and documents, including to complete 'Know Your Client' ("KYC") checks before you can complete your purchase of a Francisca Oyhanarte NFT. We will notify you by email with instructions related to our KYC process, if applicable. The KYC checks will be carried out by a third-party provider on our behalf and you agree to accept their terms and conditions in order to complete the checks. Such terms and conditions shall govern in the event of a conflict with this Terms of Service. If you are notified by us that you are required to complete our KYC process, you may not complete your purchase of a Francisca Oyhanarte NFT until the KYC process is complete. Failure to complete the KYC check in the time we specify or failure to pass the KYC check may result in the rejection of your application, even if we had previously informed you it had been accepted.
- We will notify you with details regarding the total purchase price of your Francisca Oyhanarte NFTs and instructions as to how to pay.
- In addition to the initial KYC checks, we may also require you to provide additional information and/or documents at any time, including, but not limited to, the source of funds used for your purchase if we determine we are required to do so (i) in order to comply with any applicable law or regulation (including those laws related to anti-money laundering) and/or (ii) at the request of any competent authority. If additional information and/or documents are required, we may, in our sole discretion, suspend or cancel your transaction until such additional information and/or documents are reviewed by us and accepted as satisfying the requirements of the applicable law. Failure to provide such additional information and/or documents in the time we specify may result in the rejection of your application, even if we had previously informed you it had been accepted. We may also determine that the contents of such additional information and/or documents require us to reject your application.
- You acknowledge and agree that you are acting on your own behalf, and not as a broker, agent, employee or contractor of any other party. You acknowledge and agree that the funds to be used for the purchase of a Francisca Oyhanarte NFT do not originate from a person subject to financial sanctions or constitute or represent any person's benefit from criminal conduct and that at least one of the following statements is an accurate representation as to the source of these funds: (i) the source is your own personal income derived from employment, property or asset sales, investments or profit distributions from a business; (ii) the source is a gift or a loan; or (iii) the source is inheritance.
- You must complete your purchase of your Francisca Oyhanarte NFT within the time period set forth by us and communicated to you in the Notification ("Francisca Oyhanarte NFT Purchase Period").If you do not complete the purchase within the Francisca Oyhanarte NFT Purchase Period, you will no longer be eligible to purchase your applied-for NFT, and we have the right to sell that Francisca Oyhanarte NFT to another party.
- By initiating the purchase of a Francisca Oyhanarte NFT, you agree that you are submitting a binding offer to purchase the Francisca Oyhanarte NFT from us. Your order is accepted and confirmed once the purchase is complete and we notify you that the purchase is complete. You acknowledge that your purchase of the Francisca Oyhanarte NFT cannot be refunded.
- Once your purchase is complete you will receive the Francisca Oyhanarte NFT through your MetaMask wallet within the time period notified to you when we confirm your order. Note that this time period will follow the Francisca Oyhanarte NFT Purchase Period.
- Title to the Francisca Oyhanarte NFT passes to you once your purchase is complete and then converts to title to the Artwork when the Francisca Oyhanarte NFT is redeemed (as defined below) and the Artwork is withdrawn from the Vault (as defined below) in accordance with this Terms of Service. The risk in and responsibility for the Artwork will transfer to you from the time we deliver it to the address provided by you to us.
- REDEMPTION OF NFT FOR ARTWORK – WITHDRAWAL FROM THE VAULT
- Insurance whilst in the VaultWhen you purchase a Francisca Oyhanarte NFT, the Artwork associated with the Francisca Oyhanarte NFT will remain in our possession. The Artwork will be stored by us in a secure location (the "Vault") in the Vault during the Redemption Period, the then-current owner of the corresponding Francisca Oyhanarte NFT can request to receive from us either a substitute Artwork, or a corresponding Francisca Oyhanarte NFT. We will be sharing the exact date of the redemption period on our website.
- You will be able to redeem your Francisca Oyhanarte NFT and request withdrawal of the corresponding Artwork from the Vault on any date during the Redemption Period. All Artwork must be withdrawn from the Vault during the Redemption Period. At the end of the Redemption Period, any Artwork that has not been withdrawn from the Vault will be destroyed.
- We will not be responsible or liable to you or any other party for errors or failures to execute any redemption, including, without limitation, errors or failures caused by: (i) your failure to follow our redemption instructions; (ii) any incorrect information submitted by you during the redemption process (iii) any loss of connection to our Website or Service unless caused by our gross negligence; (iv) a failure of any software or device used by you as part of the redemption process; or (v) any other failure to execute your redemption request or for errors or omissions in connection with this activity unless caused by our gross negligence.
- If you choose to collect an Artwork in person, we will require you to verify your identity and address before the Artwork can be withdrawn from the Vault. Before you burn your Francisca Oyhanarte NFT, you will be required to submit personal information to us (including your name and address). When you collect the corresponding Artwork, you will need to provide proof of identity and address that matches the details you provided during the redemption process. If you do not provide such documents, for example, if you bring a document with an incorrect address, we will not allow you to withdraw an Artwork from the Vault unless and until such documents are provided to our satisfaction.
- If you choose to have an Artwork shipped when it is withdrawn from the Vault, it will be shipped to you (or to a person chosen by you to take possession) by our chosen carrier. The Artwork will be insured during transit at the value of 444 United States Dollars ($444). If the Artwork is destroyed or damaged or lost during transit, you agree that your sole remedy will be payment of up to two thousand United States Dollars ($444).
- If you choose to have an Artwork shipped, you agree to pay all costs and import duties and taxes payable to ship the Artwork to the address designated by you. See clause 9 for details.
- If you lose access to the Francisca Oyhanarte NFT you own (including, but not limited to, circumstances where access to the digital wallet you used to access the Francisca Oyhanarte NFT has been lost), you will lose all rights to the corresponding Artwork and will not be able to withdraw it from the Vault.
- SECONDARY MARKETPLACES AND THIRD-PARTY SITES
- Our Website may include links to other websites or platforms including Secondary Marketplaces (collectively, "Third-Party Sites"). For example, we may include a link to a Secondary Marketplace on which we believe you can trade your Francisca Oyhanarte NFT. When you click such link, we may not warn you that you have left our Service and are subject to the terms and conditions and privacy policies of a Third-Party Site. You agree that your use of any Third-Party Site is at your own risk even if we provide links to them from our Website. You may need to comply with any terms and conditions governing the use of such Third-Party Sites and you should review all applicable terms and conditions, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction on any Third-Party Site.
- References or links to any Third-Party Site are provided for your convenience and information only. Such links should not be interpreted as endorsements by us of the Third-Party Sites. We have no control over the contents of those Third-Party Sites and disclaim any liability, and accept no responsibility, for the content of any Third-Party Site referred to or accessed through our Service. The fact that we have listed a Secondary Marketplace on our Website is not a guarantee or endorsement that such Secondary Marketplace will support a Francisca Oyhanarte NFT or allow all possible transactions with a Francisca Oyhanarte NFT.
- You acknowledge and agree that we are not a party to any agreement or transaction where you trade on any Secondary Marketplace a Francisca Oyhanarte NFT which was initially purchased via our Service, whether or not a commission or fee is received by us as a consequence of the transaction. We are not liable for any loss incurred by you for fees or other amounts not received by you or from any amounts payable by you in connection with any transaction that takes place on Secondary Marketplaces or on any other Third-Party Sites.
- The Francisca Oyhanarte NFTs implement Ethereum Improvement Proposal 2981 (EIP-2981) which would allow Secondary Marketplaces to obtain information about the payment of a royalty requested by us for secondary sales. The information can be read from the smart contract. If a Secondary Marketplace chooses to implement the information, the royalty shall be payable on all transactions of the Francisca Oyhanarte NFT on that Secondary Marketplace. The royalty shall be shared between us and Francisca Oyhanarte. However, EIP-2981 is still in draft and is under review.
- LINKS TO OUR WEBSITE
- In connection with the sale of a Francisca Oyhanarte NFT, you may link to our Website, provided you do so in a way that is fair, not misleading in any way, legal, and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link to our Website on any website that is not owned by you and you must not frame our Website on any other website. We reserve the right to withdraw the foregoing linking permission without notice.
- INTELLECTUAL PROPERTY RIGHTS
- Our ServiceWe are the owner or the licensee of, or have a valid right to use, all intellectual property rights in the Service and in the images, photographs, illustrations and other content created by us or for us or featured in connection with our Service (including the look and feel, design and graphics of our Website). All such rights are reserved to us. Except as permitted by law, you must not reproduce, distribute, transmit, disseminate, create derivate works of, perform, display or otherwise use in any way any material (or part thereof) on our Website or obtained via our Service other than the Artwork and Digital Artwork you may acquire.
- If your use of the Service breaches this Terms of Service, your right to use our Service will cease immediately and you must, at our option, return or destroy any copies or other infringing material so created.
- Francisca Oyhanarte NFT and Associated Artwork and Digital ArtworkYou acknowledge that your purchase of a Francisca Oyhanarte NFT means you have full ownership rights in the Francisca Oyhanarte NFT itself, including the right to store, sell and transfer your Francisca Oyhanarte NFT. However, your purchase of a Francisca Oyhanarte NFT from us or any third party does not provide any rights, express or implied, in (including, without limitation, any copyrights or other intellectual property rights in and to): (a) the Digital Artwork other than the right to copy and display the Digital Artwork for your own personal, non-commercial use and as set forth in Clause 8.7 and 8.8 or (b) the Artwork other than ownership of that physical piece.
- We are not responsible or liable if the Digital Artwork becomes inaccessible to you for any reason, or for any modifications or changes to the Digital Artwork that someone other than us may make, including the deletion of the Digital Artwork.
- You acknowledge that Digital Artworks can be copied and distributed and that we cannot guarantee that there will be not be multiple copies of a Digital Artwork associated with your Francisca Oyhanarte NFT. However, we will not sell more than one Francisca Oyhanarte NFT associated with a particular Artwork.
- You acknowledge that we or Francisca Oyhanarte could make additional copies of, and distribute, the Digital Artwork and could sell or otherwise assign the copyright or other intellectual property rights or economic rights in the Digital Artwork.
- Licence to Digital ArtworkYou have the right to display and share the Digital Artwork associated with your Francisca Oyhanarte NFT: (i) for the purpose of sharing the Digital Artwork on Secondary Marketplaces in connection with the sale, transfer, or trade of your Francisca Oyhanarte NFT and (ii) for the purpose of sharing your purchase or ownership of your Francisca Oyhanarte NFT on social media and digital platforms. As noted above, you do not have any rights or license to the Artwork other than ownership of that physical piece
- Whilst you are permitted to sell, transfer or trade the Francisca Oyhanarte NFT, you do not have the right to use the Digital Artwork for commercial purposes including, without limitation, to do any of the following for commercial purposes: (i) reproduce the Digital Artwork or make or sell copies of it; (ii) modify the Digital Artwork or create derivate works of it; (iii) incorporate the Digital Artwork in any other work or forms of media; (iv) mint, tokenize or create an additional cryptographic token, including an NFT, representing or associated with the Digital Artwork; or (v) otherwise exploit the Digital Artwork for commercial purposes.
- Upon your sale, transfer or burning of the Francisca Oyhanarte NFT or if your ownership of the Francisca Oyhanarte NFT is relinquished for any other reason, your rights and interest in the Francisca Oyhanarte NFT and Digital Artwork immediately and automatically terminate.
- PRICE AND PAYMENT
- Smart contracts and gas feesTransacting on the Ethereum blockchain, including the purchase and transfer of Francisca Oyhanarte NFTs, may require the payment by you of a transaction fee ("Gas Fee") on the Ethereum blockchain. The amount of the Gas Fee will vary and is determined by the manner of operation of the Ethereum Blockchain. Gas Fees are paid to miners on the Ethereum blockchain as a reward for validating transactions and adding them to the blockchain. We do not receive any portion of them, nor do we have any control over the amount of the Gas Fee you may be required to pay when you make a transaction on the Ethereum blockchain. You acknowledge and agree that: (a) you are responsible to pay the Gas Fee regardless of the amount, (b) that the Gas Fee is not payable to us nor is it refundable under any circumstances, and (c) the price of each Francisca Oyhanarte NFT is exclusive of the Gas Fees that you may need to pay.
- You may be able to choose the amount of the Gas Fees to pay but the lower the fee, the longer it may take for the transaction to be confirmed. We suggest using your wallet's recommended Gas Fees. We do not have any control over the timeframe for confirmation of your transaction.
- Purchase price and chargesAll prices and charges payable to us are shown in United States Dollars ("USD"). If you pay in a fiat currency other than United States Dollars, the actual amount to be paid in your chosen currency will be determined by the exchange rate used by your bank or credit card company when you are actually charged. We are not responsible for any exchange rate fees charged by your bank or credit card company, and such amounts are not charged by or received by us.
- The purchase price of the Francisca Oyhanarte NFT will be the price indicated on the Website. Any taxes on your purchase are your responsibility.
- If you choose to pay in cryptocurrency, please refer to clause 10 below.
- Taxes and customs dutiesIf you withdraw an Artwork from the Vault, the costs of shipping the Artwork (and any applicable VAT, sales tax, use tax or any other taxes payable to us) will be payable by you and will be calculated once you provide a delivery address. We will notify you with details of these costs and how to pay them before the Artwork is shipped. If you fail or refuse to pay these shipping costs in whole or in part, you will not be able to withdraw the Artwork from the Vault nor reclaim your burned Francisca Oyhanarte NFT.
- In addition to the amounts payable to us, you are responsible for paying any taxes, customs duties and fees levied by local customs authorities ("Import Duties and Taxes") which are triggered when the Artwork is shipped to the country you designate. Where Import Duties and Taxes are due, you are solely responsible for paying them. We do not collect and pay Import Duties and Taxes on your behalf. You will need to pay any amounts due directly to the applicable customs authority. We are not able to offer any guidance on Import Duties and Taxes and we recommend that you contact your local customs office for details. Failure to pay the applicable Import Duties and Taxes means you may not be able to receive your Artwork. We will have no liability to you in such event.
- PAYMENT METHODS
- Payment for the Francisca Oyhanarte NFTs may be made by any of the methods specified in this Terms of Service or on our Website. Payment to ship the Artwork when it is withdrawn from the Vault may be made by the methods notified to you when you apply to withdraw the Artwork.
- Cryptocurrency paymentsWe accept payments in cryptocurrencies. The cryptocurrencies we accept will be displayed on the Website. All cryptocurrency transactions will be handled through a payment gateway used by us and with which you will deal directly. Only cryptocurrency payments we specify as approved will be credited towards a Francisca Oyhanarte NFT purchase.
- Before you can pay with cryptocurrency, you will need to ensure your wallet has a sufficient amount of cryptocurrency. When you get to the payment option screen you will be presented with the various ways you can pay. If you choose to pay using cryptocurrency then you will be taken to the payment page of the payment gateway which allows you to select the applicable cryptocurrencies. The purchase price of the Francisca Oyhanarte NFT in USD will be converted into the current value of the applicable cryptocurrency at the time your transaction is processed, pursuant to a source determined by us at our sole discretion.
- How much cryptocurrency is requiredYou must send the exact amount of cryptocurrency specified by us. If you send less or more than that amount, we will issue a refund of the full amount you send, and you will need to repeat the checkout process. We cannot guarantee that the Francisca Oyhanarte NFT purchase price will be the same for any repeat payment because the cryptocurrency conversion rate may have changed.
- How soon must the payment be madeOnce you choose to pay with cryptocurrency, you must send it within the timeframe displayed by the payment gateway. If you do not send it within this timeframe, the conversion rate may have changed and will need to be refreshed in order to complete the payment.
- Confirmation of transactionsWhen you make a transaction using cryptocurrency, your transaction will not be recorded on the blockchain until it has been included in a block on the blockchain, at which point the blockchain has one confirmation. Each new block added to the blockchain is another confirmation for your transaction. A specific number of block confirmations is required in order to consider a transaction final. The number of block confirmations required to consider a transaction final will vary depending on the applicable cryptocurrency. We require 6 confirmations for Bitcoin and 35 confirmations for Ether, USDC and DAI.
- The required number of block confirmations must be processed within 5 days from the date on which you make the transaction. We have no control over this, and a failure of your payment to be finalized means you may need to pay again, using the then-current cryptocurrency conversion rate.
- Transactions sent to the incorrect wallet addressYou must send the cryptocurrency to the address that we provide to you. Since transactions are irreversible on the blockchain, if you make a mistake and your cryptocurrency is sent to the incorrect address, you will lose the cryptocurrency and the order cannot be accepted. It is your responsibility to make sure that you send the cryptocurrency to the correct address. We are not liable for any failure by you to send the cryptocurrency to the correct address we provide to you.
- Conversion rates for refundsWe reserve the right in exceptional circumstances not to accept payment for a Francisca Oyhanarte NFT and to issue a refund. If we have not accepted your payment, and we issue a refund, and you paid in fiat currency, you will be refunded using USD. If you paid in cryptocurrency, your refund will be using USD as the base currency for the purchase price, converted into the applicable cryptocurrency at the current rate at the time we issue the refund (and not at the time when we confirm that a refund will be issued).
- This ensures that the equivalent USD amount you pay at the time of purchase is also returned to you in cryptocurrency. In order to protect both you and us from fluctuations in the cryptocurrency rate, we do not refund at the cryptocurrency rate that existed at the time of purchase. This could mean that you receive more or less cryptocurrency than the amount you paid at the time of the transaction. However, the USD value will still be the same.
If you have any questions or complaints about the Service please contact us here
- BLOCKCHAIN AND SMART CONTRACTS – RISK OF USE
- Transactions that are made through the Service utilise experimental technology, including cryptographic systems such as smart contracts, blockchain, NFTs, cryptocurrencies, the Interplanetary file system ("IPFS") and decentralized or peer-to-peer networks and systems. You acknowledge and agree that you understand and accept that all such technology is experimental, that there are inherent risks associated with its use, and that we are not liable or responsible for any resultant errors, failures, risks, or vulnerabilities.
- The Service, Ethereum blockchain and Francisca Oyhanarte NFTs could be impacted by regulatory actions, legislation or proposed legislation or policies which could limit or restrict your ability to access the Service, the Ethereum blockchain, your Francisca Oyhanarte NFT or your Digital Artwork, your ability to transfer your Francisca Oyhanarte NFT, or your ability to access or display the Digital Artwork. You acknowledge and agree that you that understand this risk.
- You acknowledge and agree that we are not liable or responsible for any error, failures, risks, or vulnerabilities arising out of the use of the Service, smart contracts, blockchain, NFTs, cryptocurrencies, IPFS and associated networks and systems (including, but not limited to your ability to access the Service, your Francisca Oyhanarte NFT or your Digital Artwork, your ability to transfer your Francisca Oyhanarte NFT, or your ability to access or display the Digital Artwork).
- You acknowledge and agree that we are not liable or responsible for errors or failures caused by you, such as forgotten passwords or mistyped addresses.
- The purchase of Francisca Oyhanarte NFTs that take place through the Service are executed by one or more smart contracts on the Ethereum blockchain. Smart contracts may be subject to malfunctions, errors, including programming errors, hacking and theft, or changes to the protocol rules of the Ethereum blockchain which can adversely affect the smart contracts and may expose you to a variety of risks of loss, including the risk of loss of your Francisca Oyhanarte NFT or cryptocurrency or loss of opportunity to buy or redeem your Francisca Oyhanarte NFT. You acknowledge and agree that you that understand this risk.
- You acknowledge and agree that once the smart contract has been executed in connection with the purchase of a Francisca Oyhanarte NFT, it cannot be reversed and therefore there are no refunds.
- The Service and the Ethereum blockchain may experience cyber-attacks and unauthorized third-party activities (including, but not limited to, the use of viruses, phishing, sybil attacks, mining attacks, 51% attacks, and brute forcing), unexpected surges in activity, or other operational or technical difficulties (including weaknesses in our own security) and malfunctions that may cause interruptions to or delays with the Service. You acknowledge and agree that we are not liable for any of the foregoing or any other attacks, or for any damage, losses or interruptions caused by any viruses that may affect your computer or other equipment, or your wallet. You further acknowledge and agree that such attacks may impact your ability to access the Service, your Francisca Oyhanarte NFT or your Digital Artwork, your ability to transfer your Francisca Oyhanarte NFT, or your ability to access or display the Digital Artwork.
- You acknowledge and agree that transacting with Francisca Oyhanarte NFTs may expose you to certain regulatory risks, including those relating to the tax treatment of NFTs or cryptocurrencies, and whether NFTs might be deemed securities or another regulated class of assets.
- We do not own or control the Ethereum blockchain, MetaMask, or any other Third-Party Site or service that you might access, visit, or use for the purpose of enabling you to use the Service. You acknowledge and agree that we will not be liable for the acts or omissions of any such third parties or third-party services, nor will we be liable for any loss or damage that you may suffer as a result of your transactions or any other interaction with any such third parties or third-party services.
- You acknowledge that you have a sufficient understanding of the functionality, usage, storage, transmission mechanisms and other material characteristics of, blockchain technology, NFTs, digital assets, digital wallets, and cryptocurrencies to understand this Terms of Service and to appreciate the risks and implications of purchasing Francisca Oyhanarte NFTs. You acknowledge and agree that you have obtained sufficient information to make an informed decision to purchase a Francisca Oyhanarte NFT, including (if you choose to do so) reviewing the code of the smart contract, the Francisca Oyhanarte NFT metadata, and the Francisca Oyhanarte NFT, as well as the storage system used for the Digital Artwork, and fully understand and accept the functions of the same and any underlying risks.
- By making a payment with a cryptocurrency, you acknowledge and agree that Cominted Labs has no liability for your payment not reaching us, including, but not limited to, instances where payment through the Ethereum blockchain was unsuccessful. It is solely your responsibility to confirm that your cryptocurrency payment was received and accepted by Cominted Labs.
- You acknowledge and agree that your purchase of a Francisca Oyhanarte NFT complies with applicable laws and regulation in your jurisdiction.
- You acknowledge and agree that certain information about your transaction, including your digital wallet address, may be publicly available on the Ethereum blockchain.
- Financial risksUse of the Service, including buying Francisca Oyhanarte NFTs may carry financial risk. Transactions executed by smart contracts are irreversible and may be non refundable. The risk of loss in trading crypto assets, including Francisca Oyhanarte NFTs, can be substantial. The prices of crypto assets are volatile and fluctuations in the price of crypto assets could materially and adversely affect the value of your Francisca Oyhanarte NFTs.
- You must carefully consider whether buying NFTs is appropriate for you in view of your financial circumstances and you acknowledge and agree that you will access and use the Service at your own risk including the risk that you may lose access to your Francisca Oyhanarte NFT or the Digital Artwork indefinitely. We are not liable and accept no responsibility in connection with your use of the Service and transactions facilitated by it.
- OUR LIABILITY AND GENERAL DISCLAIMERS
- References to liability in this clause 13 include every kind of liability arising under or in connection with this Terms of Service, including, but not limited to, liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- No provision in this Terms of Service shall be deemed to exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence, our liability for fraud or fraudulent misrepresentation or any other liability which cannot be excluded or limited under applicable law.
- Subject to clause 13.2, our total liability to you in connection with the purchase or sale of a Francisca Oyhanarte NFT, including any claim in connection with the Artwork or Digital Artwork, and your use of the Service , shall be limited to two thousand United States Dollars ($444) regardless of the cause of action brought. You acknowledge and agree that your agreement under this Terms of Service is directly with Cominted Labs, and that no other party associated or working with Cominted Labs shall have any liability to you, including, without limitation, Francisca Oyhanarte. Any claims you may have can be brought only against Cominted Labs.
- Subject to clause 13.2, under no circumstances will we be liable to you for: (i) any indirect, special, incidental, consequential or exemplary damages of any kind (including, but not limited to, loss of revenue, income or profits, loss of data or software, or business interruption); (ii) any damages due to errors by you (such as forgotten passwords or mistyped addresses); (iii) any damages due to errors by us (such as incorrectly constructed transactions or incorrectly programmed NFTs); (iv) any damages due to mining attacks, cybersecurity attacks, weaknesses in our security, blockchain malfunctions or other technical errors, or telecommunications failures; (v) any damages due to unfavourable regulatory determinations or actions in one or more jurisdictions (including with respect to NFTs or cryptocurrencies) or taxation of NFTs or cryptocurrencies; (vi) any damages relating to your inability to access the Service, your Francisca Oyhanarte NFT or your Digital Artwork, your inability to transfer your Francisca Oyhanarte NFT, or your inability to access or display the Digital Artwork; (vii) any damages arising from any third-party providers, including third-party providers that may mint the Francisca Oyhanarte NFTs and/or store the Francisca Oyhanarte NFTs or Digital Artworks even where such third-party providers were retained by Cominted Labs; (viii) any damages arising from any personal information disclosure; (ix) any damages arising from any unauthorised third-party activities, including without limitation the introduction of viruses or other malicious code, the use of phishing, Sybil attacks, 51% attacks, brute forcing, changes to the protocol rules of the blockchain (i.e., "forks"), or other means of attack that affect, in any way, any Francisca Oyhanarte NFT or Digital Artwork; in each case of (i) – (ix) arising out of or in any way related to the sale or use of the Francisca Oyhanarte NFTs, the Digital Artworks, or the Artworks, or otherwise related to this Terms of Service, regardless of the form of action, whether based in contract, tort, or any other legal or equitable theory (even if the party has been advised of the possibility of such damages and regardless of whether such damages were foreseeable).
- We do not give any representation or warranty or assume any liability of any kind whatsoever, express or implied, in connection with this Terms of Service, the Service, the Francisca Oyhanarte NFTs or the Artworks or Digital Artworks including without limitation representations, warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement, functionality, or technical quality or performance of any NFT, the Service, smart code, condition of the Francisca Oyhanarte NFTs, Digital Artworks or the Artwork or software or that the Francisca Oyhanarte NFTs are free of viruses or other harmful components, each of which is specifically disclaimed, and no statement anywhere whether oral or writing shall be deemed to be such a representation or warranty.
- The laws of some countries do not allow some or all of the disclaimers, limitations or exclusions described above. This is especially so if you are a consumer. If these laws apply to you, some or all of the above disclaimers, limitations or exclusions may not apply to you and you might have additional rights.
- We are not responsible for any loss caused by or resulting from confiscation of a shipment of an Artwork to any foreign country or state or risks of restricted transportation by any government or authority.
- We will not be responsible to you or any other party for any errors or variations that may occur or appear in the quality or resolution of the Francisca Oyhanarte NFTs, the Digital Artwork or any other content provided through the Service.
We are not permitted to engage in any transactions with any person, entity or country prohibited by any applicable export control and sanctions laws and regulations of the United States and any other applicable governmental authority, including without limitation, the U.S. Export Administration Regulations and U.S. sanctions regulations ("Export Control and Sanctions Laws"), including, without limitation, the prohibition against transactions with: (i) a national or resident of any country subject to U.S. sanctions or similar restrictions (currently, Cuba, Iran, Syria, North Korea and the region Crimea), or (ii) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or other sanctions lists. You will not be permitted to buy a Francisca Oyhanarte NFT from us if such purchase would be in breach of Export Control and Sanctions Laws.
- PERSONAL INFORMATION
- DISPUTE RESOLUTION
- YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
- YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY.
- YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING, BUT NOT LIMITED TO, CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
- Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (LCIA) Rules, which Rules are deemed to be incorporated by reference into this clause 16. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English. The governing law of the contract shall be the substantive law of the State of New York, United States.
- FINAL PROVISIONS
- We can make reasonable changes to this Terms of Service at any time for security, legal, regulatory or operational reasons. When we make material changes to the Terms of Service, we will provide you with notice as appropriate under the circumstances, e.g., by displaying a prominent notice or seeking your agreement within the Service or by sending you an email.
- We may transfer any of our rights and obligations under this Terms of Service to another organisation. If you sell or otherwise transfer any Francisca Oyhanarte NFT purchased from us to a third party, you must transfer your rights and obligations under these Terms of Service to the new owner of the Francisca Oyhanarte NFT.
- Except as expressly provided in clause 17.2, you may only transfer your rights and obligations under this Terms of Service if we agree in writing.
- Each of the clauses of this Terms of Service operates separately. If any part of this Terms of Service is disallowed or found to be ineffective by any court, regulator, or arbitrator, the other provisions shall continue to apply.
- If you breach this Terms of Service and we take no action against you, we will still be entitled to use our rights and remedies in any other situation where you breach this Terms of Service. The rights and remedies in this Terms of Service are cumulative and are not exclusive of any rights or remedies provided by law.
- Except as expressly provided in clause 17.7, this Terms of Service is between you and us and no other person shall have any rights to enforce any of its terms.
- This Terms of Service is also made for the benefit of the owners of the Francisca Oyhanarte NFTs from time to time and our obligations in this Terms of Service shall be enforceable by each of them to the fullest extent permitted by law as if they were a party to this Terms of Service.
- The rights of you and us to terminate, rescind or agree any variation, waiver or settlement under this Terms of Service are not subject to the consent of any other person.
- This Terms of Service constitutes the entire agreement between us in relation to your purchase. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on our behalf of us which is not set out in this Terms of Service and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
- This Terms of Service and its subject matter and formation (and any non-contractual disputes or claims) shall be governed by the laws of the State of New York, United States.