Terms and Conditions
We are Vertique – Darwish / Richter GbR, Stiftsplatz 5, 76829 Landau in der Pfalz, Germany (collectively referred to as „Artqey“ „we“ „our“ or „us“). You can contact us at firstname.lastname@example.org.
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 11 for details.
Artqey has created artworks, each of which has a unique 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 „FALLEN ECLIPSE NFT“). Each FALLEN ECLIPSE 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 FALLEN ECLIPSE NFT and/or the Artwork.
Old used objects such as antiques or works of art objects – especially if they are traded on the basis of their age and derive their value from it – are not newly manufactured objects despite restoration. With these objects, in addition to age-related deterioration, there is a risk of misjudgment regarding origin or authenticity that increases with age. Due to this, you acknowledge and agree that we limit our liability in this respect as a seller from warranty rights to this effect or arising therefrom.
4.1. When you purchase a FALLEN ECLIPSE NFT, the Artwork associated with the FALLEN ECLIPSE NFT will remain in our possession. The Artwork will be stored by us in a secure location (the „Studio“) which is located in Germany.
4.2. The owner of a FALLEN ECLIPSE NFT can redeem the FALLEN ECLIPSE NFT and withdraw the corresponding Artwork from the Studio at any time. Your FALLEN ECLIPSE NFT must be redeemed and burned before the corresponding Artwork can be withdrawn. We will take the necessary actions to burn the FALLEN ECLIPSE NFT. Failure to burn your FALLEN ECLIPSE NFT may mean that you cannot withdraw the corresponding Artwork.
4.3. 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 loss of connection to our website or Service unless caused by our gross negligence; (iii) a failure of any software or device used by you as part of the redemption process; or (iv) any other failure to execute your redemption request or for errors or omissions in connection with this activity unless caused by our gross negligence.
How to Withdraw an Artwork from the Studio
4.4. We may require you to verify your identity before an Artwork can be withdrawn from the Studio, which may include providing proof of identity to our satisfaction. You agree to submit any identification documents and other documents as may be required by us to verify your identity in order to withdraw an Artwork. If you do not provide complete and accurate information and documents in response to such request, we will not allow you to withdraw an Artwork from the Studio, and your sole remedy will be to retain the FALLEN ECLIPSE NFT that you purchased.
4.5. If you lose access to the FALLEN ECLIPSE NFT you own (including, but not limited to, circumstances where access to the digital wallet you used to access the FALLEN ECLIPSE NFT has been lost), you will lose all rights to the corresponding Artwork and will not be able to withdraw it from the Studio.
4.6. When a FALLEN ECLIPSE NFT is redeemed and an Artwork is withdrawn from the Studio, it will be shipped to you (or to a person chosen by you to take possession) by our chosen carrier.
4.7. If you withdraw an Artwork from the Studio, you agree to pay all costs and import duties and taxes payable to ship the Artwork to the address designated by you. See clause 8 for details.
5.2. 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 FALLEN ECLIPSE 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.
5.3. 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 a FALLEN ECLIPSE NFT or allow all possible transactions with a FALLEN ECLIPSE NFT.
5.4. You acknowledge and agree that we are not a party to any agreement or transaction where you trade on any Secondary Marketplace a FALLEN ECLIPSE 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.
6.1. In connection with the sale of a FALLEN ECLIPSE 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.
7.1. 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). 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.
7.2. 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.
FALLEN ECLIPSE NFT and Associated Artwork and Digital Artwork
7.3. You acknowledge that your purchase of a FALLEN ECLIPSE NFT means you have full ownership rights in the FALLEN ECLIPSE NFT itself, including the right to store, sell and transfer your FALLEN ECLIPSE NFT. However, your purchase of a FALLEN ECLIPSE 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.
7.4. 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.
7.5. You acknowledge that Digital Artworks can be copied and distributed and that we cannot guarantee that there will not be multiple copies of a Digital Artwork associated with your FALLEN ECLIPSE NFT. However, we will not sell more than one FALLEN ECLIPSE NFT associated with a particular Artwork.
7.6. You acknowledge that we 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
7.7. You have the right to display and share the Digital Artwork associated with your FALLEN ECLIPSE NFT: (i) for the purpose of sharing the Digital Artwork on Secondary Marketplaces in connection with the sale, transfer, or trade of your FALLEN ECLIPSE NFT and (ii) for the purpose of sharing your purchase or ownership of your FALLEN ECLIPSE 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.
7.8. Whilst you are permitted to sell, transfer or trade the FALLEN ECLIPSE 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.
7.9. Upon your sale, transfer or burning of the FALLEN ECLIPSE NFT or if your ownership of the FALLEN ECLIPSE NFT is relinquished for any other reason, your rights and interest in the FALLEN ECLIPSE NFT and Digital Artwork immediately and automatically terminate.
8.1 Transacting on the blockchain, including the purchase and transfer of FALLEN ECLIPSE NFTs, may require the payment by you of a transaction fee („Gas Fee“) on blockchain. The amount of the Gas Fee will vary and is determined by the manner of operation of the Blockchain. Gas Fees are paid to miners on the 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 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 FALLEN ECLIPSE NFT is exclusive of the Gas Fees that you may need to pay.
Taxes and customs duties
8.2. If you withdraw an Artwork from the Studio, 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 Studio nor reclaim your burned FALLEN ECLIPSE NFT.
8.3. 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.
9.1. 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.
9.2. The Service, the blockchain and FALLEN ECLIPSE 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 blockchain, your FALLEN ECLIPSE NFT or your Digital Artwork, your ability to transfer your FALLEN ECLIPSE NFT, or your ability to access or display the Digital Artwork. You acknowledge and agree that you that understand this risk.
9.3. 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 FALLEN ECLIPSE NFT or your Digital Artwork, your ability to transfer your FALLEN ECLIPSE NFT, or your ability to access or display the Digital Artwork).
9.4. 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.
9.5. The purchases of FALLEN ECLIPSE NFTs that take place through the Service are executed by one or more smart contracts on the blockchain. Smart contracts may be subject to malfunctions, errors, including programming errors, hacking and theft, or changes to the protocol rules of the 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 FALLEN ECLIPSE NFT or cryptocurrency or loss of opportunity to buy or redeem your FALLEN ECLIPSE NFT. You acknowledge and agree that you that understand this risk.
9.6. You acknowledge and agree that once the smart contract has been executed in connection with the purchase of a FALLEN ECLIPSE NFT, it cannot be reversed and therefore there are no refunds.
9.7. The Service and the 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 FALLEN ECLIPSE NFT or your Digital Artwork, your ability to transfer your FALLEN ECLIPSE NFT, or your ability to access or display the Digital Artwork.
9.8. You acknowledge and agree that transacting with FALLEN ECLIPSE 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.
9.9. We do not own or control the blockchain 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.
9.10. 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 FALLEN ECLIPSE NFTs. You acknowledge and agree that you have obtained sufficient information to make an informed decision to purchase a FALLEN ECLIPSE NFT, including (if you choose to do so) reviewing the code of the smart contract, the FALLEN ECLIPSE NFT metadata, and the FALLEN ECLIPSE 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.
9.11. By making a payment with a cryptocurrency, you acknowledge and agree that we have no liability for your payment not reaching us, including, but not limited to, instances where payment through the blockchain was unsuccessful. It is solely your responsibility to confirm that your cryptocurrency payment was received and accepted by us.
9.12. You acknowledge and agree that your purchase of a FALLEN ECLIPSE NFT complies with applicable laws and regulation in your jurisdiction.
9.13. You acknowledge and agree that certain information about your transaction, including your digital wallet address, may be publicly available on the blockchain.
9.14. Use of the Service, including buying FALLEN ECLIPSE 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 FALLEN ECLIPSE 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 FALLEN ECLIPSE NFTs.
9.15. 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 FALLEN ECLIPSE 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.
10.1. References to liability in this clause 10 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.
10.2. 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.
10.3. Subject to clause 10.2, our total liability to you in connection with the purchase or sale of a FALLEN ECLIPSE 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 ($2,000) regardless of the cause of action brought.
10.4. Subject to clause 10.2, 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 FALLEN ECLIPSE NFT or your Digital Artwork, your inability to transfer your FALLEN ECLIPSE 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 FALLEN ECLIPSE NFTs and/or store the FALLEN ECLIPSE NFTs or Digital Artworks even where such third-party providers were retained by us; (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 FALLEN ECLIPSE 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 FALLEN ECLIPSE 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).
10.5. 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 FALLEN ECLIPSE 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 FALLEN ECLIPSE NFTs, Digital Artworks or the Artwork or software or that the FALLEN ECLIPSE 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.
10.6. 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.
10.7. 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.
10.8. 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 FALLEN ECLIPSE NFTs, the Digital Artwork or any other content provided through the Service.
11.1. 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 FALLEN ECLIPSE NFT from us if such purchase would be in breach of Export Control and Sanctions Laws.
13.1. 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.
13.2. YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY.
13.3. 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.
13.4. 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 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.
14.1.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.
14.2. 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.
14.3. 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.
14.4. This Terms of Service and its subject matter and formation (and any non-contractual disputes or claims) shall be governed by the laws of Germany. The appropriate court is the Regional Court of Cologne.