Public NFT Sale Terms and Conditions
TERMS OF SALE PERTAINING TO THE SALE OF NON-FUNGIBLE TOKENS (NFTS)
Version date: 10th of July, 2022.
PLEASE READ THESE TERMS OF THE NFT SALE CAREFULLY.
NOTE THAT SECTION 17 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH MAY AFFECT YOUR LEGAL RIGHTS. IF YOU DO NOT AGREE TO THESE TERMS OF SALE, DO NOT PURCHASE NFTS.
Your purchase of Non-Fungible Tokens (collectively, “NFTs”) during the NFT sale (the “NFT Sale”) period (the “Sale Period”) from Empowa Technology Ltd, a Seychelles incorporated company (“Company”, “we”, or “us”), is subject to these Terms of Sale (“Terms”). Each of you and the Company is a “Party”, and together the “Parties”.
By purchasing NFTs from us during the Sale Period and/or using the Platform (as defined below), you will be bound by these Terms and all terms incorporated by reference. If you have any questions regarding these terms, please contact us at email@example.com.
THESE TERMS OF SALES ARE A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU AND THE COMPANY. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING TO PURCHASE NFTS. BY PURCHASING NFTS, YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PURCHASE ANY NFTS. PURCHASING NFTS MEANS THAT YOU AGREE TO THE TERMS OF THIS AGREEMENT.
BY PURCHASING NFTS, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT AND WARRANT THAT YOU ARE NOT PROHIBITED BY LAW FROM PURCHASING OR USING THE SERVICES IN YOUR JURISDICTION. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER. PLEASE READ THE “ARBITRATION” SECTION 17 BELOW FOR ADDITIONAL INFORMATION.
You and the Company agree as follows:
1. Purpose and Use of NFTs
The purpose of the NFTs is to fund affordable housing projects across the globe, starting with African countries. The Company and its affiliates are developing a platform (the “Platform”) to establish an ecosystem to support this purpose, as described further in the White Paper, accessible via a link at https://empowa.io (the “White Paper”).
The Platform is a system that utilises the Cardano blockchain that permits, among other things, the loan of money to developers and funders for housing in Africa and the management of returns (if any) from the provision of such loans. The funds raised through the NFT Sale are used to provide these loans, with some of the returns (if any) sent back to the NFT holders in the form of EMP, a fungible token on the Cardano blockchain with policy ID 6c8642400e8437f737eb86df0fc8a8437c760f48592b1ba8f5767e81, distributed by the Company for use with the Platform (“EMP”). The NFTs are available for purchase from an application (the “Site” or “App”), accessible via a link at https://empowa.io â€” and may include text, images, video, audio, code, and other materials (collectively, the “Content”). The Platform was developed by the Company.
Note: The Platform is an experimental prototype, and its use involves a high degree of risk. There are numerous ways the Platform could fail in an unexpected way, resulting in the total and absolute loss in the value of digital assets issued through or processed by the Platform, including but not limited to NFTs and EMP.
The funds raised by the Company through the sale of NFTs are used to extend unsecured loans from the Company to real-estate developers for the supply of affordable housing in Africa. You understand and accept that the NFT does not represent or confer any ownership right or stake, share or security or equivalent rights, or any right to receive future revenue shares, intellectual property rights, or any other form of participation in or relating to the housing, Platform, and/or the Company and its corporate affiliates. The NFTs are not intended to be a digital currency, security, commodity, or any other kind of financial instrument.
2. Scope of Terms
Unless otherwise stated herein, these Terms govern only your purchase of NFTs from the Company during the Sale Period.
3. Good Faith
The Parties shall, in exercising their respective rights and complying with their respective obligations hereunder, at all times act in good faith.
Purchase: To be eligible to purchase the NFTs, at this time you must have a wallet or other storage mechanism (“Wallet”) that supports Cardano native tokens on the Cardano mainnet blockchain in order to receive any NFTs you purchase from us and you must provide an address for your Wallet (the “Token Receipt Address”) if requested. The Company reserves the right to prescribe additional guidance regarding specific requirements with respect to a storage mechanism for the NFTs. You must have the ability to send ADA, EMP, or other specified currencies or tokens (“Payment Currency”) to the address that the Company provides (the “Payment Address”) or through other payment methods specified for the NFT Sale.
The Company is not responsible for any delays, losses, costs, non-delivery of refunds or of NFTs, or other issues arising from your failure to provide a Token Receipt Address or providing an inaccurate or incomplete Token Receipt Address.
As per the applicable various international restrictions, the Company reserves the right to prohibit any and all sales to users domiciled or located in a country or territory it deems as restricted from any token sale activities or who are subject to regulatory requirements, including but not limited to Afghanistan, Congo-Brazzaville, Congo-Kinshasa, Cuba, Iran, Iraq, Libya, North Korea, Syria, and Tajikistan. The Company may cancel any sales to users domiciled or located in any such country.
5. Cancellation; Refusal of Purchase Requests
Your purchase of NFTs from us during the Sale Period is final, and there are no refunds or cancellations except as may be required by applicable law or regulation.
If this occurs, then the Payment Currency sent by you to purchase NFTs may be returned and the purchase and sale of the NFTs may be considered void and rescinded without further recourse against the Company. The Company reserves the right to refuse or cancel NFT purchase requests at any time at our sole and absolute discretion and to stop the NFT Sale entirely for any reason, or no reason. To the extent that the Company refuses or rejects a payment, the Company will exercise reasonable endeavours to secure that the payment is returned to the Wallet from which it was made. However, the Company does not warrant, represent, or offer any assurances that it will be able to successfully recover and/or return such payments, and, in any event, you accept that any return of your payment will be net of any fees applied at the time the payment is made and thereafter until returned (if so returned).
6. Sale Procedures and Specifications
Details of NFT Sale: The details of the NFT Sale including, but not limited to such information as commencement of the Sale Period, price, Impact Rewards and requirements will be advertised on the Company’s website.
Procedures for Purchasing: In order to purchase the NFT during the Sale Period, and to receive the NFT you purchase, you must have a Wallet that supports Cardano native tokens on the Cardano mainnet blockchain. The Company reserves the right to prescribe additional wallet requirements.
To initiate a purchase of the NFT during the Sale Period, you must send the specified amount of Payment Currency to the Payment Address specified to you after you agree to these Terms through the acceptance process described on the purchase App.
Sending a payment to any other address may result in the loss of Payment Currency. Attempted transactions to purchase NFTs may be rejected if the payment is sent to the Payment Address at any time before or after the Sale Period.
7. Impact Rewards
The holder of NFTs issued by the Company during the NFT Sale, may or may not be eligible to receive Impact Rewards. Impact Rewards may be issued to NFTs at different intervals, with the amount and eligibility to claim being subject to the NFT Sale details associated with the affordable housing project being financed.
Please see the Company’s NFT Sale Site for information and conditions regarding the issuance of Impact Rewards.
All Impact Rewards offered are subject to the Terms and Conditions of the Impact Rewards program (when available in due course), accessible via a link at https://impactrewards.io.
8. Acknowledgment and Assumption of Risks
You acknowledge and agree that there are risks associated with purchasing NFTs and holding NFTs, as disclosed and explained in the Risk Disclosures set forth in Schedule 1 hereto. If you have any specific questions regarding these risks, please contact the Company at firstname.lastname@example.org.
BY ACCEPTING THESE TERMS AND PURCHASING NFTS, YOU EXPRESSLY AND FINALLY ACKNOWLEDGE, ACCEPT AND ASSUME ALL OF THE RISKS SET FORTH IN SCHEDULE 1 HERETO. ALL RISK OF LOSS TRANSFERS TO YOU UPON PURCHASE OF THE NFTS.
9. Security; Information
Your Security: You are responsible for implementing reasonable measures for securing the wallet, vault, or other storage mechanisms you use to receive and hold NFTs you purchase from the Company, including any requisite private key(s) or other credentials necessary to access such storage mechanism(s). If your private key(s) or other access credentials are lost, you may lose access to your NFTs. The Company is not responsible for any such losses.
Your Information: The Company may use aggregate statistical information about your activity, including your activity on the Company Site, and logins to various websites, for marketing or any other purpose at our sole discretion. The Company may use your internet protocol address to verify your purchase of NFTs.
10. Personal Information
The Company may determine, at its sole discretion, that it is necessary to obtain certain information about you required to maintain compliance with any federal, state, local, domestic or foreign law, regulation or policy, including any KYC or AML requirements and policies, in connection with selling NFTs to you. You agree to provide the Company, or our nominee, such information promptly upon request, and you acknowledge that the Company may refuse to sell NFTs to you until you provide such requested information and the Company has determined that it is permissible to sell you NFTs under applicable law or regulation.
The purchase price that you pay for NFTs is exclusive of all applicable taxes. You are solely responsible for determining what, if any, taxes apply to your purchase of NFTs, including, for example, sales, use, value-added, and similar taxes. It is also your responsibility to withhold, collect, report, and remit the correct taxes to the appropriate tax authorities. The Company is not responsible for withholding, collecting, reporting or remitting any sales, use, value-added or similar tax arising from your purchase of NFTs. You agree not to hold the Company or any Company Parties (defined below) liable for any tax liability associated with or arising from the creation, ownership, use, or liquidation of NFTs, or any other action or transaction related to the Platform.
12. Representations and Warranties
By purchasing NFTs, you represent and warrant that:
- You have sufficient understanding of NFTs, token storage mechanisms (such as token wallets), and distributed ledger technology to understand these Terms and to appreciate the risks and implications of purchasing the NFTs;
- You have read and understood these Terms (including the totality of the White Paper to which these Terms also apply);
- You have obtained sufficient information about the NFTs to make an informed decision to purchase the NFTs;
- YOU UNDERSTAND THAT THE NFTS CURRENTLY ONLY FUND AFFORDABLE HOUSING IN AFRICA AND CONFER NO OTHER RIGHTS OF ANY FORM WITH RESPECT TO THE PLATFORM OR THE COMPANY, INCLUDING, BUT NOT LIMITED TO, ANY VOTING, PROFITS AND/OR DISTRIBUTION, REDEMPTION, LIQUIDATION, PROPRIETARY (INCLUDING ALL FORMS OF INTELLECTUAL PROPERTY), OR ANY OTHER FINANCIAL OR LEGAL RIGHTS;
- You are not purchasing NFTs for investment, speculative, or any other financial purposes.
- Your purchase of NFTs complies with applicable law and regulation in your jurisdiction, including, but not limited to (i) legal capacity and any other threshold requirements in your jurisdiction for the purchase of the NFTs and entering into contracts with the Company, (ii) any foreign exchange or regulatory restrictions applicable to such purchase, and (iii) any governmental or other consents that may need to be obtained;
- You are legally permitted to receive the NFTs;
- You will comply with any applicable tax obligations in your jurisdiction that may be relevant to your purchase, holding, redemption, sale, or transfer of the NFTs;
- You agree to promptly provide to the Company or its nominee, upon request, proof of identity and/or source of funds and/or other documentation or other information that the Company may request from time to time in connection with the Company’s obligations under, and compliance with, applicable laws and regulations, including but not limited to anti-money laundering legislation, regulations or guidance and/or tax information reporting or withholding legislation, regulations or guidance;
- You are at the age of majority in your country of residence and are legally able to obtain the NFTs;
- You understand with regard to NFTs, that the Company make no guarantees that you will be able to resell NFTs, or as to their future value, that no market liquidity may be guaranteed, and that the value of NFTs over time may experience extreme volatility or depreciate in full;
- You understand that you bear the sole responsibility to determine whether the ownership or use of the NFTs, the potential appreciation or depreciation in the value of the NFTs over time, the sale and purchase of the NFTs and/or any other action or transaction related to the Platform may have tax implications; further, by obtaining, holding or using the NFTs, and to the extent permitted by law, you agree not to hold any third party (e.g. developers, auditors, contractors, or founders) liable for any tax liability associated with or arising from the ownership or use of the NFTs or any other action or transaction related to the Platform;
- You waive the right to participate in a class-action lawsuit or a class-wide arbitration against any entity or individual involved with the creation of the NFTs, as discussed more fully herein;
- You understand that the purchase of NFTs does not involve the purchase of shares or any equivalent in any existing or future public or private company, corporation, or other entity in any jurisdiction;
- You understand that the transfer of the Payment Currency, the transfer of the NFTs, and the maintenance of the Platform carry significant financial, regulatory, and reputational risks as further set forth in the Terms;
- You understand that you have no right against any other party to request any refund of contributions submitted for the purchase of NFTs under any circumstance;
- If you are purchasing NFTs on behalf of a legal entity, you are authorised to accept these Terms on such entity’s behalf and that such entity will be responsible for breach of these Terms by you or any other employee or agent of such entity (references to “you” in these Terms refer to you and such entity, jointly);
- You are not (i) a citizen or resident of a geographic area in which access to or use of the Platform or purchase of NFTs is prohibited by applicable law, decree, regulation, treaty, or administrative act, (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes, or (iii) an individual, or an individual employed by or associated with an entity, identified on BIS’s Denied Persons, Unverified, or Entity Lists, or OFAC’s List of Specially Designated Nationals, Foreign Sanctions Evaders, or List of Consolidated Sanctions, or DDTC’s Debarred Parties List.
- You agree not to allow anyone to use your Wallet or share your credentials with any other person for the purpose of facilitating their unauthorised access to the NFT Sale. If you do share your credentials with anyone, the Company will consider their activities to have been authorised by you. You alone are responsible for any acts or omissions that occur during the NFT Sale through the use of your credentials or Wallet. The Company reserves the right to suspend or block your access to the NFT Sale upon suspicion of any unauthorised access or use, or any attempted access or use, by anyone associated with your credentials.
1. To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless the Company and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (the “Company Parties”) from and against all actual and threatened claims, lawsuits, demands, actions, investigations (whether formal or informal), liabilities, obligations, judgments, damages, penalties, interests, fees, losses, expenses (including attorneys’ fees and expenses), and costs (including, without limitation, court costs, costs of settlement, and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether claimed by Company Parties or third parties including governmental authorities, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract, or otherwise (collectively “Claims”) arising from or relating to (i) your acquisition or use of NFTs, (ii) the performance or non-performance of your responsibilities or obligations under these Terms, (iii) your breach or violation of these Terms, (iv) any inaccuracy in any representation or warranty made by you, (v) your violation of any rights (including, but not limited to, intellectual property rights) of any other person or entity or (vi) any act or omission of yours that is negligent, unlawful, or constitutes willful misconduct. This foregoing indemnity is in addition to, and not in lieu of, any other remedies that may be available to the Parties under applicable law.
2. The Company reserves the right to exercise sole control over the defense, at your expense, of any claim subject to indemnification under Section 13.1. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and the Company.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE SPECIFIED IN WRITING BY THE COMPANY, (A) THE NFTS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, AND WE EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS RELATING TO THE NFTS (WHETHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE; (B) THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE NFTS ARE RELIABLE, CURRENT, ERROR-FREE, OR DEFECT-FREE, MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) THE COMPANY CAN NOT AND DOES NOT REPRESENT OR WARRANT THAT THE NFTS OR THE DELIVERY MECHANISM FOR NFTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NO REGULATORY AUTHORITY HAS EXAMINED OR APPROVED ANY OF THE INFORMATION SET FORTH IN THESE TERMS OR ANY RELATED DOCUMENTATION OR COMMUNICATION BY THE COMPANY. NO SUCH ACTION HAS BEEN OR WILL BE TAKEN UNDER THE LAWS, REGULATORY REQUIREMENTS, OR RULES OF ANY JURISDICTION.
NEITHER THESE TERMS NOR ANY RELATED DOCUMENTATION OR COMMUNICATION BY THE COMPANY CONSTITUTES A PROSPECTUS OR OFFERING DOCUMENT AND IS NEITHER AN OFFER TO SELL NOR THE SOLICITATION OF AN OFFER TO BUY ANY INVESTMENT OR FINANCIAL INSTRUMENT IN ANY JURISDICTION.
Some jurisdictions do not allow the exclusion of certain warranties or disclaimer of implied terms in contracts with consumers, so some or all of the exclusions of warranties and disclaimers in this Section may not apply to you.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT WILL COMPANY OR ANY OF THE COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, WHERE RELATED TO LOSS OF REVENUE, INCOME OR PROFITS, DIMINUTION OF VALUE, LOSS OF USE OR DATA, LOSS OR DEPLETION OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF CONTRACT, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, OR THE LIKE) ARISING OUT OF OR IN ANY WAY RELATED TO THE SALE OR USE OF THE NFTS OR OTHERWISE RELATED TO THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), 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); AND (II) IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY AND THE COMPANY PARTIES (JOINTLY), WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF OR INABILITY TO USE THE NFTS, EXCEED THE AMOUNT YOU PAY TO US FOR THE NFTS.
THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL, WILLFUL, OR RECKLESS MISCONDUCT OF THE COMPANY.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations of this Section may not apply to you.
To the fullest extent permitted by applicable law, you release the Company and the other Company Parties from responsibility, liability, claims, losses, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between you and the acts or omissions of third parties.
A general release does not extend to claims that the creditor does not know or suspects to exist in his or her favour at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
17. Dispute Resolution; Arbitration
1. Proof of ownership of Wallet: In the event of any dispute arising out of or in connection with these Terms, you will be required to prove ownership of the Wallet used to complete the purchase of your NFTs. You and the Company agree that this requirement is the only means available to establish conclusively that you are the proper counterparty to these Terms. Consequently, if you are not able to prove ownership of the Wallet used to complete the purchase of your NFTs, you agree that you may not initiate any dispute resolution process against the Company and that you waive any and all rights to do so. You and the Company also agree that any rights under these Terms may only be exercised by you, to the exclusion of all and any assignees of your NFTs.
2. Notice and Negotiations: In the event of any dispute arising out of or in connection with these Terms, either party shall invite the other party in writing to commence good faith negotiations to resolve the dispute within 30 days from the date on which the dispute arose.
a. Notice to the Company shall be sent by e-mail to the Company at email@example.com. Notice to you shall be by email to the then-current email address registered with the Company.
b. A notice of dispute must include (i) the name, postal address, email address and telephone number of the person making the notification, (ii) a description in reasonable detail of the nature or basis of the dispute, and (iii) the specific relief that you are seeking.
3. Mediation: If you and the Company cannot agree on how to resolve the dispute within 30 days after the date on which notice was received by the applicable Party, then either you or the Company may initiate a mediation. The Parties agree to submit the dispute for resolution through mediation to the Centre for Effective Dispute Resolution (CEDR in London, United Kingdom). The Company will contact the CEDR and all costs related to such a mediation process will be shared between the Parties, as per the standards of the industry.
4. Binding Arbitration: If you and the Company cannot reach a mediated resolution to the dispute within 30 days following the date on which the mediation started, the dispute shall be exclusively and finally resolved by arbitration in accordance with the rules of arbitration of an arbitral institution located in Paris (France) or elsewhere in continental Europe in force on the date of commencement of the arbitration.
a. For the avoidance of doubt, you and the Company (i) waive your and the Company’s respective rights to have any and all disputes arising out of or in connection with these Terms resolved in a court, and (ii) waive your and the Company’s respective rights to a jury trial.
b. The seat of arbitration shall be Paris (France) or another capital city in continental Europe, but the parties agree to hold hearings and/or meetings (if any) in any suitable location and/or by any suitable means of simultaneous communication (online). The language of arbitration is to be English. The arbitration tribunal shall consist of a sole arbitrator appointed in accordance with the rules of arbitration of the selected institution.
c. By submitting their dispute to arbitration, the parties agree to comply with any award without delay and waive their right to any form of recourse insofar as such waiver can validly be made.
d. The parties agree to keep confidential the existence and contents of the arbitration and the written and oral pleadings and all documents produced for or arising from the arbitration, save as may be required by legal or regulatory duty or to protect or pursue a legal right.
e. You and the Company agree that neither the arbitral institution nor the tribunal shall be entitled to conduct a class arbitration or a representative action as defined in these Terms, and they may not either consolidate any claims or arbitrations. To the extent you attempt to initiate a class arbitration or a representative action as defined in these Terms, you and the Company agree that such an action may be dismissed for lack of jurisdiction with you to bear all of the Company’s legal and other costs incurred in connection with this action.
5. Injunctive relief: Without prejudice to this agreement to submit disputes to binding arbitration, you and the Company agree that either Party may seek injunctive relief from the relevant courts to prevent the unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents.
6. No Class Arbitration Class Actions or Representative Actions: Any dispute arising out of or in connection with these Terms is personal to you and the Company and will not be brought as a class arbitration, class action or any other type of representative proceeding. There will be no class arbitration or arbitration in which an individual attempt to resolve a dispute as a representative of another individual or group of individuals. Further, a dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
7. Compliance Reinforcement Mechanism: The Parties agree to the Compliance Reinforcement Mechanism under the DELOS Rules of Arbitration, including all related disclosures of information.
18. Governing Law
These Terms shall be governed by, and construed in accordance with, the laws of England and Wales disregarding its conflict of laws and jurisdiction provisions.
If any term, clause, or provision of these Terms is held to be illegal, invalid, void, or unenforceable (in whole or in part), then such term, clause, or provision shall be severable from these Terms without affecting the validity or enforceability of any remaining part of that term, clause, or provision, or any other term, clause, or provision in these Terms, which will remain in full force and effect. Any invalid or unenforceable provisions will be interpreted to affect the intent of the original provisions. If such construction is not possible, the invalid or unenforceable provision will be severed from these Terms, but the rest of these Terms will remain in full force and effect.
These Terms constitute the entire agreement between you and us relating to your purchase of NFTs from the Company. The Company may assign its rights and obligations under these Terms. The Company’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The Company will not be liable for any delay or failure to perform any obligation under these Terms where the delay or failure results from any cause beyond our reasonable control. Purchasing NFTs from the Company does not create any form of partnership, joint venture or any other similar relationship between you and the Company. Except as otherwise provided herein, these Terms are intended solely for the benefit of you and the Company and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree and acknowledge that all agreements, notices, disclosures, and other communications that the Company provides to you, including these Terms, will be provided in electronic form.
SCHEDULE 1 – RISK DISCLOSURES
1. Risk of Losing Access to NFTs Due to Wallet Incompatibility: A valid Cardano address from a native token compatible wallet (e.g. Yoroi, Eternl) is required to receive your NFT and any EMP tokens sent to the NFT. Non-compatible wallet addresses will not be accepted. In addition, the Cardano address used must not be associated with a third-party exchange or service that has custody over the private key (e.g. Coinbase, etc.). You must own the private key if your address is an exchange address.
2. Risks Associated with the Cardano Blockchain: NFTs, EMP tokens and the Platform operate on the Cardano blockchain. As such, any malfunction, unintended function, unexpected functioning of or attack on the Cardano blockchain may cause the Platform, NFTs and/or EMP to malfunction or function in an unexpected or unintended manner. Cardano may be the target of malicious attacks seeking to identify and exploit weaknesses in the software, which may result in the loss or theft of NFTs. For example, if Cardano and its native tokens are subject to unknown and/or known security attacks (such as double-spend attacks, 51% attacks, or other malicious attacks), such attacks may materially and adversely affect the Platform and associated tokens.
3. Inherent Risks with Internet Connectivity: There are risks associated with using an Internet-based token, including, but not limited to, the risk of hardware, software, and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorised access to information stored within your electronic wallet. You accept and acknowledge that we will not be responsible for any communication failures, disruptions, errors, distortions, or delays you may experience when using the Platform and associated tokens, however caused.
4. Access Risks: There are a series of inherent risks with the use of mobile and/or web-based technology such as latency and other issues that are a result of connectivity (including, without limitation, the use of mobile networks). The Platform may utilise public communication network circuits for the transmission of messages. The Company shall not be liable for any and all circumstances in which you experience a delay or an inability to purchase caused by network transmission problems or restrictions or any other problems outside the Company’s direct control, which include but are not limited to the strength of the mobile signal, network latency, or any other issues that may arise between you and any internet service provider, phone service provider or any other service provider. Please note further that some of the features available on the Platform may not be available on any mobile application. Future applications may require you to download and install updates to the application or to their device’s operating system as such updates are made available. Failure to do so might lead to certain parts of the Services becoming inaccessible to you until such an update has been successfully downloaded and installed. Performance issues and security risks may arise if mobile applications are used on devices with customised or otherwise non-standard operating software or as a result of other software installed on such devices.
5. Risks Associated with Purchaser Credentials: Any third party that gains access to or learns of your wallet credentials or private keys may be able to dispose of your NFTs. To minimise this risk, you should guard against unauthorised access to your electronic devices. Best practices dictate that you safely store private keys in one or more backup locations geographically separated from the working location. In addition, you are responsible for giving us the correct Token Receipt Address to send you your NFT. If you give us the incorrect Token Receipt Address to send your NFT to, we are not responsible for any loss of NFTs that may occur.
6. Risk of Unknowable or Unfavourable Regulatory Action in One or More Jurisdictions: Regulation of NFTs, token offerings, SAFT offerings, cryptocurrencies, blockchain technologies, and cryptocurrency exchanges is not yet mature and likely to rapidly evolve, vary significantly among international, federal, state and local jurisdictions, and is subject to significant uncertainty. Various legislative and executive bodies in the United States and in other countries may in the future adopt laws, regulations, guidance, or other actions, which may severely impact the development and growth of the Platform and the adoption and utility of the NFTs. Failure by the Company or certain users of the Platform to comply with any laws, rules, and regulations, some of which may not exist yet or are subject to interpretation and may be subject to change, could result in a variety of adverse consequences, including civil penalties and fines. As distributed ledger networks and distributed ledger assets have grown in popularity and in market size, federal and state agencies have begun to take an interest in and, in some cases, regulate their use and operation. To the extent that a domestic government or quasi-governmental agency exerts regulatory authority over a distributed ledger network or asset, the Platform and NFTs may be materially and adversely affected. Distributed ledger networks also face an uncertain regulatory landscape in many jurisdictions such as the United States, the European Union, China, and Russia. Various foreign jurisdictions may, in the near future, adopt laws, regulations or directives that affect the Platform. Such laws, regulations or directives may be in conflict with each other or may directly and negatively impact our business. The effect of any future regulatory change is impossible to predict, but such change could be substantial and materially adverse to the development and growth of the Platform and the adoption and utility of the NFTs. New or changing laws and regulations or interpretations of existing laws and regulations, in the United States and other jurisdictions, may materially and adversely impact the value of the currency in which the NFTs may be exchanged, the liquidity and use of the NFTs, and the structure, rights, and transferability of NFTs. This risk may vary from market to market, and it is solely your responsibility to assess and mitigate such a risk.
7. Risk of Alternative Platform: It is possible that alternative platforms could be established that utilise the same or similar open-source code underlying the Platform and attempt to facilitate services that are materially similar to the Services on the Platform. The Platform may compete with these alternative platforms, which could negatively impact the Platform and the NFTs.
8. Risk of Insufficient Interest in the Platform: It is possible that the Platform will not be used by a large number of businesses, individuals, and other organisations and that there will be limited public interest in purchasing NFTs to fund housing developments. Because the success of the Platform also depends, in part, on the growth and adoption of the use of the Cardano blockchain, such a lack of interest could negatively impact the NFT, EMP and the Platform.
9. Risk that the Platform, as Developed, Will Not Meet the Expectations of the Company or the Purchaser: The Platform may undergo significant changes over time. Moreover, we may limit control over how other participants will use the Platform, what services may be offered through the Platform by third parties, or how third-party services will utilise the NFTs (if at all). This could create the risk that NFTs or the Platform may not meet your expectations at the time of purchase, for any number of reasons including mistaken assumptions or analysis, a change in the design and implementation plans, and execution of the Platform. Furthermore, despite our good faith efforts to develop, complete, and participate in the Platform, it is still possible that the Platform will experience malfunctions or otherwise fail to be adequately developed or maintained, which may negatively impact the Platform and NFTs, and your NFTs may become useless due to technical, commercial, regulatory or any other reasons.
10. Risks from Taxation: The tax characterisation of NFTs is uncertain. You must seek your own tax advice in connection with the acquisition, storage, transfer, and use of the NFTs and any EMP sent to the NFT, which may result in adverse tax consequences to you, including, without limitation, withholding taxes, transfer taxes, value-added taxes, income taxes and similar taxes, levies, duties, or other charges and tax reporting requirements.
11. Risk of Theft and Hacking: Hackers or other groups or organisations or countries may attempt to interfere with the Platform or the availability of the NFT and EMP in any number of ways, including service attacks, denial of service attacks, Sybil attacks, spoofing, smurfing malware attacks, or consensus-based attacks, or phishing, or other novel methods that may or may not be known to steal NFTs and/or EMP. Any such successful attacks could result in theft or loss of your payment or your NFTs.
12. Risk of Security Weaknesses in the Platform Core Infrastructure Software: The Platform will operate using open-source software maintained by the Company and other contributors. As an open-source project, some core infrastructure elements of the Platform may not be represented, maintained, or monitored by an official organisation or authority. The open-source nature of such software means that it may be difficult for the Company or contributors to maintain or develop it and the Company may not have adequate resources to address emerging issues or malicious programs that develop within the Platform or its core infrastructure software adequately or in a timely manner. Third parties not affiliated with the Company may introduce weaknesses or bugs into the core infrastructure elements of the Platform and open-source code which may negatively impact the Platform. Such events may result in a loss of trust in the security and operation of the Platform, and a decline in user activity and could negatively impact the NFTs.
13. Risk of Weaknesses or Exploitable Breakthroughs in the Field of Cryptography: Advances in cryptography, or technical advances such as the development of quantum computers, could present risks to NFTs, EMP and the Platform by rendering ineffective the cryptographic consensus mechanism that underpins the Cardano blockchain. Smart contracts and their underlying software application are still in an early development stage and may be unproven. There is no warranty or assurance that the process for obtaining or using NFTs and/or EMP will be uninterrupted or error-free, and there is an inherent risk that the software could contain defects, weaknesses, vulnerabilities, viruses, or bugs causing, inter alia, the complete loss of your payment, the theft or loss of your NFTs, or a reduction in the utility of your NFTs.
14. Risk of Lack of Adoption or Use of the Platform: While the NFTs and/or EMP should not be viewed as an investment, it may have value over time due to its utility on the Platform. That value may be limited or non-existent if the Platform lacks use and adoption. If this becomes the case, there may be few or no markets in which the NFTs and/or EMP may be sold following the launch of the Platform, potentially having an adverse impact on the NFTs and/or EMP.
15. Risk of an Illiquid Market for the NFT: NFT exchanges may be relatively new and subject to poorly understood regulatory oversight. Such exchanges may, therefore, be more exposed to fraud and failure than established, regulated exchanges for other products, and such exposure may have a negative impact on the NFT. Furthermore, to the extent that third parties do ascribe an external exchange value to the NFT (e.g. as denominated in a crypto or fiat currency), such value may be extremely volatile and diminish to zero. You should not purchase an NFT as a form of investment on a speculative basis or otherwise, or for a financial purpose, with the expectation or desire that their inherent, intrinsic, or cash-equivalent value may increase over time. You assume all risks associated with such speculation or actions and any errors associated therewith, and you accept that the NFT is not offered by the Company or its affiliates on an investment basis or for such purpose. You further acknowledge that any funds that you consider to be invested in the NFT will not be protected, guaranteed, or reimbursed by any governmental, regulatory, or other entity.
16. Risk of Uninsured Losses: Unlike bank accounts or accounts at some other financial institutions, funds held using the Platform or Cardano blockchain are generally uninsured. In the event of any loss, there is no public insurer, such as the Federal Deposit Insurance Corporation, or private insurer, to offer recourse to the purchaser.
17. Risk of Dissolution of the Empowa Project: It is possible that, due to any number of reasons, including, but not limited to, a decrease in utility due to (i) negative adoption of the Platform, (ii) the failure of commercial relationships, or (iii) intellectual property ownership challenges, the Platform may no longer be viable to operate, and the Empowa project may dissolve.
18. Risk of Malfunction in the Network: It is possible that the Platform malfunctions in an unfavourable way, including one that results in loss.
19. Risks Arising from Lack of Governance Rights: Because NFTs or any EMP sent to the NFTs currently confer no governance rights of any kind with respect to the Platform or the Company, all decisions involving the Company’s products or services within the Platform or the Company itself will be made by the Company at its sole discretion, including, but not limited to, decisions to discontinue its products or services on the Platform, to create and sell more NFTs for use on the Platform, or to sell or liquidate the Company. These decisions could adversely affect the Platform and the utility of any NFTs you own, including their utility for obtaining Services.
20. Risk of Token Upgrades: The Cardano blockchain and/or Platform may be subject to significant conceptual, technical and commercial changes. An upgrade to how NFTs are used may be required and, if you decide not to participate in such an upgrade, you may no longer be able to use your NFTs, and any non-upgraded NFTs may lose their functionality in full.
21. Risks Associated with Our Intellectual Property: The Company may consider some technology that it develops to be proprietary. Our ability to compete depends in part upon our ability to protect our rights to the technology that we develop. The Company may also rely on trademark, copyright, and trade secret law to protect its rights. However, these laws offer only limited protection. In addition, other countries may provide the Company with little to no intellectual property right protection. As the number of distributed ledger products and services available to consumers increase, and as the uses of such products and services overlap, companies in the industry may become subject to additional intellectual property disputes. Any litigation to protect our intellectual property rights would be expensive, time-consuming, and unpredictable. Such litigation could adversely affect our business, including our financial condition, regardless of the outcome. There can be no assurances that any steps taken to protect intellectual property rights will be successful in deterring misappropriation or independent third-party development of our technology. Similarly, third parties may assert infringement and misappropriation claims against us. Regardless of the merit, these actions could distract management from our business and adversely affect our financial condition and operating revenues. The Company may need to enter into confidentiality agreements with its consultants, business partners and investors in an attempt to protect the Company’s proprietary rights. Nevertheless, these attempts to protect our proprietary rights may be inadequate. If the Company is unable to protect its intellectual property, the utility of the NFTs may decline or diminish and the Platform may fail.
22. Risks Associated with Data Privacy Laws: There are a number of data protection, security, privacy and other government- and industry-specific requirements, including those that require companies to notify individuals of data security incidents involving certain types of personal data. Security compromises could harm the Platform’s reputation, erode user confidence in the effectiveness of its security measures, negatively impact its ability to attract new users, or cause existing users to stop using the Platform, which would reduce or diminish the utility of the NFTs and cause the Platform to fail.
23. No Personal Advice: The Company does not provide personal advice in relation to its products or services. The Company sometimes provides factual information, information about transaction procedures and information about the potential risks. However, any decision to use the Company’s products or services is made by you only. No communication or information provided to you by the Company is intended as, or shall be considered or construed as, investment advice, financial advice, trading advice, or any other sort of advice. You are solely responsible for determining whether any investment, investment strategy or related transaction is appropriate for you according to your personal investment objectives, financial circumstances, and risk tolerance.
24. Unanticipated Risks: Cryptographic NFTs are a relatively new and untested technology. In addition to the risks discussed in these Terms, there are risks that the Company cannot anticipate. Further risks may materialise as unanticipated combinations or variations of the discussed risks or the emergence of new risks.