The Empresses - NFT Marketplace Terms of Service

1. ABOUT US

Except as expressly provided in clause 16.7., this Terms of Service is between you and us and no other person shall have any rights to enforce any of its terms.

You can contact us here.

2. THE EMPRESSES NFT SERIES AND ARTWORKS

Damien Hirst (“Artist”) has released his “The Empresses” limited edition prints which were first made available for sale at heni.com. Buyers were given the option to either buy a physical print directly, or to delay receipt of the print by buying a non-fungible token.

When a buyer opted to buy a non-fungible token, one non-fungible token was generated for and associated with a specific physical print (each an “NFT”). The NFT can be redeemed in exchange for the physical print with which it is associated (“Artwork”) during a specified redemption period. See clause 5 for details.

Each NFT has been generated through smart contracts and recorded on the Palm blockchain, and has been associated with a digital copy of the Artwork with which it is associated ("Digital Artwork").

3. OUR WEBSITE AND THESE TERMS

This website (“Website”) enables the secondary sale and purchase of NFTs. All transactions made through the Website will be generated through smart contracts and recorded on the Palm blockchain.

This terms of service (“Marketplace Terms of Service”) is a binding agreement that governs your access to and use of the Website, including without limitation, the sale and 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 on the Website in connection with such NFTs (collectively, the "Service").

Please refer to our Privacy Policy for information about how we collect, use and share information about you.

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 orrestricted. See clause 17 for details.

4. OUR RELATIONSHIP WITH BUYERS AND SELLERS

We enable third parties to buy and sell NFTs on our Website. We are a platform provider that helps facilitate transactions carried out on our Website between a buyer of an NFT on our Website (“Buyer”) and a seller of an NFT on our Website (“Seller”). We are not the seller, or agent of either the Buyer or Seller. Our role is expressly limited to making the Website available for Buyers and Sellers. We are not a party to any agreement between any Buyer or Seller of any NFT.

5. REDEMPTION OF NFT FOR ARTWORK

The owner of an NFT is entitled to redeem the NFT and arrange for delivery of the corresponding Artwork during a fixed time period starting from 10am ET 16th May 2022 and ending at 10am ET February 5th 2025 or such other dates as we may decide in our sole discretion ("Redemption Period" “Redeem” or “Redemption”). If the Seller is selling an NFT that has not yet been Redeemed, such entitlement shall transfer to the Buyer, and the Buyer shall be subject to the Terms of Service for nft.empresses.heni.com including with respect to any Redemption of an NFT and delivery of an Artwork. Buyers are encouraged to read this Terms of Service before purchasing an NFT.

If the owner of an NFT fails to Redeem the NFT and arrange for delivery of the Artwork during the Redemption Period, the owner will lose all rights to the Artwork and we shall be entitled to dispose of or deal with (by sale or otherwise) any Artwork which cannot be delivered due to a failure to Redeem the NFT. We shall be discharged of any liability to the owner whatsoever in respect of the Artwork.

6. WALLETS

  1. In order to purchase, transfer or sell an 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 purchase or list for sale an NFT, 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, transfer or sell an NFT on our Website without completing this process. You acknowledge and agree that you will not be able to purchase, transfer or sell an NFT through our Website using any digital wallet other than MetaMask.
  2. NFTs are recorded on the Palm blockchain, and we use smart contracts to allow you to send and receive NFTs. Your NFT can be transferred on the Palm blockchain from one digital wallet address to another digital wallet address. Note that transfers on Secondary Marketplaces (defined below) may occur on other blockchains. You acknowledge and agree that if you are purchasing an NFT through our Website it is your responsibility to connect to the Palm blockchain through your MetaMask wallet and that your failure to do so will impact your ability to access the Service. You also acknowledge and agree that certain information, including your digital wallet address and the transactions you conduct through that digital wallet address, may be publicly available and viewable on the Palm blockchain.
  3. 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 NFT.

7. BUYING AND SELLING NFTS

Buy Now and Make Offer

  1. Buyers through our Website have the option to either: i) buy an NFT for the “Buy Now” price listed by the Seller (“Buy Now Price”) or ii) make an offer to the Seller (“Offer”) to purchase an NFT at a different price set by the Buyer (“Offer Price”).
  2. The Buyer of a NFT can determine, through the Website, whether its Offer to purchase an NFT at the Offer Price shall remain active for 24 hours, 72 hours or 168 hours (i.e., 7 days). When the Buyer makes an Offer, we will confirm at the time of such Offer that the Buyer has sufficient funds in their wallet to cover the amount of the Offer Price. The Buyer will then be required to approve the corresponding smart contract ultimately responsible for moving the funds to the Seller’s wallet automatically if the Seller accepts the Offer. The Buyer may withdraw its Offer at any time before acceptance by the Seller. Once a Buyer withdraws an Offer, such Offer will be deemed null and void. If the Seller does not accept the Offer within the time period specified by the Buyer, the Offer will be deemed null and void. If the Seller accepts the Offer within the specified time period, but there are insufficient funds in the Buyer’s wallet at the time of acceptance, the Offer will be deemed null and void. With respect to any transactions on the Website, the Buyer is responsible for any gas or transaction fees imposed by the Palm blockchain when transmitting the amount of the Offer Price to the Seller. With respect to any Secondary Marketplaces, the terms of such Secondary Marketplaces, including with respect to the allocation of any gas or transaction fees between the Buyer and Seller shall apply.
  3. Each listing will remain on the Website for a period of ninety (90) days from the date on which it is first listed by the Seller. Upon the expiry of such ninety (90) day period, the listing will automatically terminate and will be removed from the Website. The Seller may re-list a Hirst NFT for sale for additional ninety (90) day periods, unless otherwise specified on the Website.
  4. Each listing will remain on the Website for a period of ninety (90) days from the date on which it is first listed by the Seller. Upon the expiry of such ninety (90) day period, the listing will automatically terminate and will be removed from the Website. The Seller may re-list an NFT for sale for additional ninety (90) day periods, unless otherwise specified on the Website.
  5. The Seller can remove the listing for an NFT at any time.
  6. We reserve the right to remove a listing at any time if it is necessary due to technical reasons or operational requirements.Completion of transactions
  7. Any payments made through the Website will be effectuated through the Palm blockchain. We have no control over these payments or transactions, nor do we have the ability to reverse any payments or transactions on the Palm blockchain. Buyer acknowledges that we have no liability to Buyer or to any third party for any claims or damages that may arise as a result of Buyer’s payment not reaching the Seller, including, but not limited to, instances where Buyer’s payment was not properly processed on the Palm blockchain. It is solely Buyer’s responsibility to confirm that its payment for an NFT has been accepted. Buyer acknowledges that there may be a delay between initiating the purchase of an NFT and the receipt of the purchase price by the Seller. We cannot control the timeframe for the transfer of payments via the smart contract. We cannot guarantee that NFTs will be available for purchase at the time a Buyer seeks to purchase one. If another buyer on the Website has also initiated a purchase of the same NFT, and their payment has been received by the Seller before a Buyer’s transaction has been completed, then such Buyer’s transaction will fail and Buyer will not be able to purchase such NFT. Similarly, if a Seller delists an NFT after an Offer is made, or has sold the NFT on a Secondary Marketplace, then Buyer’s transaction will fail and Buyer will not be able to purchase such NFT. Sellers and Buyers can check the status of its transaction by checking your MetaMask wallet.
  8. Upon completion of your purchase on our Website, you will be able to access your NFT through our Website using your MetaMask wallet.
  9. Title to the NFT will pass to you upon completion of your purchase.No refunds are payable
  10. Payments or transactions on the Palm blockchain cannot be reversed and therefore there are no refunds.Transfer of DAI from Palm blockchain to cryptocurrency exchanges
  11. If you sell an NFT on the Website, you cannot transfer your DAI directly from the Palm blockchain to a cryptocurrency exchange (like Coinbase, Kraken or Binance). Before sending your funds to a cryptocurrency exchange you need to use the DAI bridge on the Palm blockchain to move your DAI to the Ethereum blockchain. You can find the DAI bridge to Ethereum on our Website here. If you do not do this before you send the funds to the exchange, your funds will be irretrievable. We are not responsible or liable for any loss caused by your failure to move your funds. Please see our FAQs for more information regarding the bridge.

8. PRICE AND PAYMENT

Purchase price, Transaction Fees and payment method

  1. The purchase price of the NFT will be either (i) the Buy Now Price or (ii) the Offer Price that is accepted by the applicable Seller (together, the “Purchase Price”).
  2. Every transaction on the Website is subject to a fee of 5% of the Purchase Price (“Transaction Fee”) which is payable to us by the Seller.
  3. By transacting on the Website through our smart contracts, you acknowledge and agree to the payment of the Transaction Fee.
  4. The Purchase Price, Transaction Fee and any other charges payable to us or to Sellers will be shown in DAI and United States Dollars ("USD").
  5. We accept payments in DAI cryptocurrency on the Palm blockchain only. The only payment method we accept is MetaMask. You are responsible for ensuring your digital wallet address has a sufficient amount of DAI cryptocurrency to cover your purchase as well as any Gas Fees and Transaction Fees as described in this clause 8.
  6. You are solely responsible for determining and paying (or reimbursing for the payment of) any and all sales, use, value-added and other taxes, duties, and assessments (excluding taxes imposed on our net income) now or hereafter claimed or imposed by any tax or other governmental authority associated with your use of the Website (collectively, the “Taxes”). You will pay or reimburse us for all Taxes of any jurisdiction (whether national, federal, state, local, foreign or other), including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, federal, state, local, foreign or other taxing jurisdiction; and will not be entitled to deduct the amount of any such Taxes or amounts levied in lieu thereof from payments (including Gas Fees) made to us pursuant to this Terms of Service.Smart contracts and gas fees
  7. Transacting on the Palm blockchain as a Buyer or a Seller will require the payment of a transaction fee on the Palm blockchain ("Gas Fee"). Examples of when a Gas Fee might be imposed are: when a Buyer transfers DAI to the Seller, when a Buyer uses the “Buy Now” feature, or when a Seller lists its NFT for sale on the Palm blockchain, accepts an offer, or removes a listing. The amount of the Gas Fee will vary and is determined by the manner of operation of the Palm Blockchain. The Gas Fee you pay goes to the operation of the Palm blockchain and not to us. You acknowledge and agree that: (a) you are responsible to pay the Gas Fee and (b) the Gas Fee is not refundable under any circumstances.
  8. You may be able to choose the amount of the Gas Fees to pay, but you acknowledge that a lower fee may mean it will take longer for your 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.
  9. Gas Fees on the Website are payable in PALM tokensConfirmation of transactions
  10. When you make a transaction using DAI cryptocurrency, your transaction will not be recorded on the blockchain until it has been included in a block on the blockchain. Until such time, your transaction is only pending and is not deemed final or completed. While your transaction is pending, the timeframe within which you needed to transact might have elapsed or another Buyer may have been able to transact ahead of you.Transactions sent to the incorrect wallet address
  11. You must send the DAI to the address provided to you. If you make a mistake and your DAI is sent to the incorrect address, you may lose your DAI. Neither Heni nor Seller has any obligation to honour a transaction sent to a wrong address. It is your responsibility to make sure that you send the DAI to the correct address.

9. USER CONDUCT

  1. You agree that you may not, nor permit any third party to do or attempt to do any of the foregoing without our (or, as applicable, our licensors’) express prior written consent in each case: (a) modify any NFT in any way; (b) use any NFT to advertise, market, or sell any third-party product or service; (c) use any NFT to engage in any attack, hack or interference with any smart contract generated through the Service; (d) use any NFT in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (e) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of any NFT; (f) attempt to trademark, copyright, or otherwise acquire intellectual property rights in or to any NFT; or (g) otherwise utilize any NFT for your or any third party’s commercial benefit.
  2. You agree not to circumvent, disable or otherwise interfere with security- related features of the Website that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content. By accessing our Website, you agree not to use any data mining, robots, scraping or similar data gathering or extraction methods.
  3. You also agree that you will comply with this Terms of Service. You are prohibited from:
  4. We reserve the right to cancel or remove a listing and suspend your access to our Service if your use of the Service breaches this Terms of Service.

10. YOUR WARRANTIES

You agree that you are responsible for your own conduct while accessing or using the Website and Service, and for any consequences thereof. You agree to use the Website only for purposes that are legal, proper and in accordance with this Terms of Service and any applicable laws or regulations. You warrant and agree that your use of the Website and Service will not (and will not allow any third party to), in any manner, involve:(i) sending, uploading, distributing or disseminating any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content; (ii) the distribution of any viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (iii) uploading, posting, transmitting or otherwise making available through the Website or Service any content that infringes the intellectual proprietary rights of any party; (iv) using the Website or Service to violate the legal rights (such as rights of privacy and publicity) of others; (v) engaging in, promoting, or encouraging illegal activity (including, without limitation, money laundering); (vi) interfering with other users’ enjoyment of the Website or Service; (vii) exploiting the Website or Service for any unauthorized commercial purpose; (viii) modifying, adapting, translating, or reverse engineering any portion of the Website or Service; (ix) removing any copyright, trademark or other proprietary rights notices contained in or on the Website or Service or any part of it; or reformatting or framing any portion of the Website or Service; (x) displaying any content on the Website or through the Service that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third-party rights; (xi) using any spider, site search/retrieval application, or other device to retrieve or index any portion of the Website or Service, or to collect information about its users for any unauthorized purpose; (xii) accessing or using the Website or Service for the purpose of creating a product or service that is competitive with any of our products or services; (xiii) abusing, harassing, or threatening another user of the Website or Service or any of our authorized representatives; (xiv) using any abusive, defamatory, ethnically or racially offensive, harassing, harmful, hateful, obscene, offensive, sexually explicit, threatening or vulgar language when communicating with another user of the Website or Service or any of our authorized representatives; (xv) impersonating another person (via the use of an email address or otherwise); or (xvi) acquiring NFTs through inappropriate or illegal means.

11. INFORMATION REQUIREMENTS

  1. We may require you to provide 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 information and/or documents are required, we may, in our sole discretion, suspend or cancel your transaction until such information and/or documents are reviewed by us and accepted as satisfying the requirements of the applicable law. Failure to provide such information and/or documents in the time we specify may result in the removal of your listing from the Website and/or suspension of your access to our Service.
  2. 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 an 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.

12. SECONDARY MARKETPLACES, THIRD-PARTY SITES AND LINKS TO OUR WEBSITE

  1. You are permitted to sell, trade, or distribute your NFT on any secondary marketplaces, platforms or exchanges operated by third parties that support NFTs ("Secondary Marketplaces"). Note that NFTs may not be compatible with all Secondary Marketplaces, and we make no guarantee about the availability or functionality of any Secondary Marketplace. Any Secondary Marketplace on which you sell, trade, or distribute your NFT must include terms of use that limit the acquiror's rights in the NFT in a manner that is consistent with clauses 13.7 and 13.8. If you sell an NFT during the Redemption Period on a Secondary Marketplace, you must ensure that the subsequent purchaser of such NFT is informed of this Terms of Service, including by providing a link to this Terms of Service and noting the Redemption Period if feasible.
  2. 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 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.
  3. 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 an NFT or allow all possible transactions with an NFT.
  4. You acknowledge and agree that we are not a party to any agreement or transaction where you trade on any Secondary Marketplace an 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.
  5. The 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 NFT on that Secondary Marketplace. The royalty shall be shared between us and the Artist.
  6. In connection with the sale, purchase or transfer of an 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.

13. INTELLECTUAL PROPERTY RIGHTS

Our Service

  1. We 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 Digital Artwork that you may acquire.
  2. 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.Hirst NFT and Associated Artwork and Digital Artwork
  3. You acknowledge that your purchase of an NFT means you have full ownership rights in the NFT itself, including the right to store, sell and transfer your NFT. However, your purchase of an NFT from a Seller 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 13.7 and 13.8 or (b) the Artwork other than ownership of that physical piece.
  4. 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.
  5. 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 NFT. However, we will not sell more than one NFT associated with a particular Artwork.
  6. You acknowledge that we or the Artist 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 Artwork
  7. You have the right to display and share the Digital Artwork associated with your NFT: (i) for the purpose of sharing the Digital Artwork on our Website and on any Secondary Marketplaces, platforms or exchanges operated by third parties that support NFTs in connection with the sale, transfer, or trade of your NFT and (ii) for the purpose of sharing your purchase or ownership of your 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.
  8. Whilst you are permitted to sell, transfer or trade the 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.
  9. Upon your sale, purchase, transfer or burning of the NFT or if your ownership of the NFT is relinquished for any other reason, your rights and interest in the NFT and Digital Artwork immediately and automatically terminate.
  10. Any Secondary Marketplace on which you sell, trade, or distribute your NFT must include terms of use that limit the acquiror's rights in the NFT in a manner that is consistent with clause 13.7 and 13.8.

14. COMPLAINTS

If you have any questions or complaints about the Service please email us at nft- [email protected].

15. BLOCKCHAIN AND SMART CONTRACTS – RISK OF USE

  1. 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.
  2. The Service, Palm blockchain and 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 Palm blockchain, your NFT or your Digital Artwork, your ability to transfer your NFT, or your ability to access or display the Digital Artwork. You acknowledge and agree that you that understand this risk.
  3. 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 NFT or your Digital Artwork, your ability to transfer your NFT, or your ability to access or display the Digital Artwork).
  4. 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.
  5. The sale and purchase of NFTs that take place through the Service are executed by one or more smart contracts on the Palm blockchain. Smart contracts may be subject to malfunctions, errors, including programming errors, hacking and theft, or changes to the protocol rules of the Palm 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 NFT or cryptocurrency or loss of opportunity to buy or Redeem your NFT. You acknowledge and agree that you that understand this risk.
  6. You acknowledge and agree that once the smart contract has been executed in connection with the sale and purchase of a NFT, it cannot be reversed and therefore there are no refunds.
  7. The Service and the Palm 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 NFT or your Digital Artwork, your ability to transfer your NFT, or your ability to access or display the Digital Artwork.
  8. You acknowledge and agree that transacting with 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.
  9. We do not own or control the Palm 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.
  10. 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 NFTs. You acknowledge and agree that you have obtained sufficient information to make an informed decision to purchase an NFT, including (if you choose to do so) reviewing the code of the smart contract, the NFT metadata, and the 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.
  11. By making a payment with a cryptocurrency, you acknowledge and agree that Heni has no liability for your payment not reaching the seller, including, but not limited to, instances where payment through the Palm blockchain was unsuccessful. It is solely your responsibility to confirm that your cryptocurrency payment was received and accepted by the seller.
  12. You acknowledge and agree that your purchase of an NFT complies with applicable laws and regulation in your jurisdiction.
  13. You acknowledge and agree that certain information about your transaction, including your digital wallet address, may be publicly available on the Palm blockchain.
  14. Any transfer of title that might occur in any NFT occurs on the Palm blockchain. We do not guarantee that we can affect the transfer of title in any NFT.Financial risks
  15. Use of the Service, including buying 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 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 NFTs.
  16. 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 NFT or your Digital Artwork indefinitely. We are not liable and accept no responsibility in connection with your use of the Service and transactions facilitated by it.

16. OUR LIABILITY AND GENERAL DISCLAIMERS

  1. References to liability in this clause 16 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.
  2. 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.
  3. Subject to clause 16.2, our total liability to you in connection with the purchase or sale of an NFT, including any claim in connection with the Artwork or the Digital Artwork, and your use of the Service, shall be limited to three thousand five hundred United States Dollars ($3,500) regardless of the cause of action brought. You acknowledge and agree that your agreement under this Terms of Service is directly with Heni, and that no other party associated or working with Heni shall have any liability to you, including, without limitation, the Artist. Any claims you may have can be brought only against Heni.
  4. Subject to clause 16.2, 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 NFT or your Digital Artwork, your inability to transfer your 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 NFTs and/or store the NFTs or Digital Artworks even where such third-party providers were retained by Heni; (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 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 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).
  5. 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 NFTs, the Artworks or the 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 NFTs, the Artworks, Digital Artworks or software or that the NFTs are free of viruses or other harmful components, or that the NFTs offered for sale on the Website by sellers are accurately or fairly priced, each of which is specifically disclaimed, and no statement anywhere whether oral or writing shall be deemed to be such a representation or warranty.
  6. Heni is a platform provider. We are not a broker, financial institution or creditor. The Service is an administrative platform only.
  7. 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.
  8. 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.
  9. 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 NFTs, the Digital Artwork, NFT metadata or any other content provided through the Service.
  10. You acknowledge and agree that we are not responsible for, nor do we have any control over, the pricing of NFTs offered for sale on the Website.

17. RESTRICTIONS

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 sell or buy an NFT on the Website if such purchase would be in breach of Export Control and Sanctions Laws.

18. PERSONAL INFORMATION

We will only use your personal information as set out in our Privacy Policy.

19. DISPUTE RESOLUTION

  1. 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.
  2. YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY.
  3. 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.
  4. 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 19. 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.

20. FINAL PROVISIONS

  1. 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.
  2. We may transfer any of our rights and obligations under this Terms of Service to another organisation.
  3. You may only transfer your rights and obligations under this Terms of Service if we agree in writing.
  4. 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.
  5. 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.
  6. This Terms of Service is between you and us and no other person shall have any rights to enforce any of its terms.
  7. 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.
  8. 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.
  9. 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.