Date of publication: 02/10/2024
The General Conditions described below (hereinafter, the ‘General Conditions’) regulate the relations between TELEFÓNICA INNOVACIÓN DIGITAL S.L., a company with Tax ID No. B83188953, with registered office at Ronda de la Comunicación, s/n, Edificio Central, 28050, Madrid, and registered in the Madrid Mercantile Register in volume 42. 773, folio 213, inscription 79, sheet M-296237 (hereinafter, ‘TU.com’) and the user, both in their capacity as Creator User and Buyer User, (hereinafter referred to collectively and interchangeably as the ‘USER’) who accesses and uses the NFT Marketplace owned and operated by TU. com (hereinafter, ‘TU Gallery’), in all matters relating to access to and use of TU Gallery, its APIs, software, tools, features or functionalities provided or related to the services provided: the use to view, explore, create, edit, publish, unpublish, buy and sell NFTs (hereinafter, the ‘Service’).
In this clause the USER will find the main definitions of the terms used in the General Conditions, which will be complemented by all the definitions given throughout these General Conditions.
Underlying Asset: refers to the physical or digital asset, material or immaterial, tokenised in the NFT.
Blockchain: refers to Distributed Ledger Technology or DLT, which is a type of technology that supports the decentralised recording of encrypted data. DLT records, among other things, information related to NFT transactions and ownership. Specifically, the DLT to be used in TU Gallery will be Polygon's Blockchain network. https://polygon.technology/.
Content: refers to any content that the USER creates, sends, publishes, promotes or displays through TU Gallery, including that incorporated into the NFT.
Gas cost: refers to the cost of carrying out one or more operations on the Blockchain network. This cost is determined by the Blockchain network used, and is variable and independent of TU.com.
Cryptocurrency: refers to virtual currency managed by a network of decentralised computers that has an encryption system to secure transactions between users. TU Gallery will use Polygon (MATIC): https://polygon.technology/matic-token.
Intellectual and Industrial Property Rights: refers to all intellectual and industrial property and analogous rights over the Underlying Asset including, among others, the right of reproduction, distribution, transformation and communication to the public, as well as any industrial property right, trade secret or analogous right (patents, trademarks, utility models, trade secrets, databases, etc.). In any case, these rights must include those considered necessary to access and make proper use of the Service. In no case shall the sale and ownership of the NFT imply the transfer of the Intellectual and Industrial Property Rights over the Underlying Asset, which shall continue to be owned by the owner, unless the transfer of all or some of the associated Intellectual and Industrial Property Rights is expressly specified.
Financial instrument: refers to the contract between two parties, which gives rise to a financial asset for one party and a financial liability for the other.
TU Gallery: refers to the online intermediation platform offered by TU.com where the USER is allowed to view, explore, create, edit, publish, unpublish, buy and sell NFTs on public blockchains.
Minting: refers to the technical process of minting or creating, whether one or more NFTs, in TU Gallery, through the Smart Contracts enabled for this purpose.
NFT: stands for non-fungible token. It is a digital and cryptographic asset registered in Blockchain, being the result of tokenising an Underlying Asset, through its digital representation in Blockchain using a standard available for this purpose, and which includes a series of metadata with coded information of said asset, including in the metadata a link with the address to the distributed storage service (IPFS), in which the Underlying Asset that is being tokenised is stored. NFTs are non-fungible tokens, IPFS Distributed Storage Service: this refers to the service that allows the digital reproduction of an Underlying Asset to be hosted in a distributed peer-to-peer manner, using the IPFS (InterPlanetary File System) protocol. The service also allows addresses to be generated that are uniquely associated with that stored digital reproduction, with the aim of being able to access it and link it to the NFT through its metadata.
Smart Contract: refers to a programme that runs on a Blockchain. It is a set of code (functions) and data (statuses) that resides at a specific address on the Blockchain. For these purposes, they regulate certain NFT transactions or operations, such as their creation, destruction or transfer.
Semi-fungible tokens: refers to the group of tokens that can be fungible and non-fungible during their life cycle. Initially, these tokens act as fungible tokens in the sense that they can be traded peer-to-peer with other identical tokens. The distinguishing factor is that, once redeemed, fungible tokens lose their face value. This loss of exchangeable value makes expired tokens non-fungible.
User Buyer: refers to the natural or legal person represented by a natural person with sufficient power of representation for these purposes, who acquires or buys NFTs available through TU Gallery under the terms and conditions established for this purpose at any given time. The purchasing user, like any other user of TU Gallery and of the services provided through it, undertakes to make legal and appropriate use of these services, in accordance with the existing regulatory conditions and applicable legislation.
User Creator: refers to the natural person of contact, authorised or otherwise acting legitimately on behalf of the creator Company that wishes to use the Service of TU. com for the purposes of this Contract, and who responsibly declares that they legitimately hold all the necessary rights to use the Service, including, without limitation, sufficient Intellectual and Industrial Property Rights over the Underlying Asset of the NFT that they are going to Mint through TU Gallery. In the event that the Underlying Asset is or incorporates a work, it shall be understood as a work as provided in Article 10 of Royal Legislative Decree 1/1996, of 12 April, which approves the revised text of the Intellectual Property Law, regularising, clarifying and harmonising the legal provisions in force on the matter (hereinafter, ‘TRLPI’).
Utility tokens: this is a type of crypto-asset whose purpose is to provide digital access to a good or service, available through Blockchain, and accepted only by the issuer of the token in question (‘service tokens’). Service tokens have non-financial purposes related to the operation of a digital platform and digital services, and should therefore be considered a specific type of crypto-asset.
Wallet: refers to the virtual portfolio, wallet or purse in which cryptographic assets (NFTs and cryptocurrencies) are stored and managed. In this MarketPlace, CREATORs can only connect MetaMask Wallets. https://metamask.io/.
The unreserved acceptance of these General Conditions is essential for the provision of the Service by TU.com. The USER declares, in this sense, to have read, understood and accepted these General Conditions, made available to them, at all times and prior to accessing and using the Service, on the website where TU Gallery is hosted.
The use of the Service is also subject to any notices, regulations of use and technical instructions made known to the USER by TU.com by any means, which complete the provisions of these General Conditions as long as they do not oppose them.
In the event that the USER accesses the platform in the name and on behalf of a legal entity, the USER accepts and declares that they have sufficient powers of representation to bind the legal entity they represent. In such cases, all actions carried out by the USER as a legal entity will be attributable to the legal entity, and TU.com will presume that they have been carried out by the latter.
1.4. Other related conditionsThese General Conditions apply to the provision of all the functionalities, whether proprietary or third-party, available in TU Gallery in general, including the Privacy Policy applicable to TU Gallery. However, certain functionalities may incorporate, if necessary, Particular Conditions that include specific conditions that will apply due to the use of said functionality. In any case, such conditions will be objective and non-discriminatory in accordance with the applicable regulations. Therefore, the use of the Service implies acceptance of the applicable General and/or Specific Conditions, as the case may be, which supplement these General Conditions in all matters not provided for therein. Such applicable Specific Conditions, as well as any others that may be linked to the Service, will also be made available to the USER in advance and at all times through the Marketplace website.
Therefore, the use of the Service implies acceptance of the applicable General and/or Specific Conditions, as the case may be, which supplement these General Conditions in all matters not provided for therein. These applicable Specific Conditions, as well as any others that may be linked to the Service, will also be made available to the USER in advance and at all times through the Marketplace website (www.gallery.tu.com).
TU Gallery is a digital marketplace that allows Creator Users to generate, sell and visualise NFTs and collections, as well as, in the case of Buyer Users, to purchase said NFTs as independent items.
On TU Gallery, the Creator User may only create and market NFTs that are unique, non-fungible and non-divisible, thus excluding fungible cryptoassets, semi-fungible tokens (SFT), utility tokens, financial instruments or tradable securities.
To use the Service, the USER must use a supported third-party Wallet that allows them to carry out transactions on the Blockchain. The USER may only link one Wallet and the USER's account in TU Gallery (hereinafter, the ‘Account’) will be associated with said USER's Wallet, which cannot be modified once it is linked to the Account.
The creation of the Account will involve the creation of a profile with basic information about the USER, which the USER can edit, and about their activity in TU Gallery (e.g. favourite NFTs, NFTs purchased, etc.). This information may be publicly viewed via the internet by other USERS and any third parties who access TU Gallery.
TU.com facilitates transactions between the Creator and Buyer USER, but under no circumstances is it a party to any agreement in which both USERS participate, being an independent and external third party that only provides them with the technical means and functionalities necessary for this purpose, without intervening in this commercial relationship between these parties in any way.
For correct access to and/or provision of the Service, it is necessary and essential that the USER fulfils the following requirements:
The functionalities available in TU Gallery are:
In order to acquire the status of ‘Creator’, the USER must act on behalf of and in the name of a creative company that acts as a company in accordance with the applicable regulations (either as a legal entity or as a sole trader or self-employed individual) and, prior to participating in TU Gallery, said creative company must sign a contract with TU. com, which will specify the details of the relationship (hereinafter, the ‘Contract’). In the event of any discrepancy between the Contract and the General Terms and Conditions, the provisions of the Contract shall prevail.
The USER has the option of contacting TU.com via the ‘Contact us’ section located in the footer of the TU Gallery website to become an NFT creator on TU Gallery. To do so, they must complete the form that will be displayed in the aforementioned section and follow the steps indicated by TU.com for this purpose. Once TU.com confirms the user's creation, they will obtain their TU Gallery access credentials and the USER will have the status of ‘Creator’ for the purposes of these General Conditions.
The password may be freely modified by the USER through the procedures established by TU.com for this purpose.
The Creator USER has the option of creating collections made up of one or more NFTs (hereinafter, the ‘Collection’ or ‘Collections’). These Collections must have a title, description and header image.
The Creator USER has the option of creating NFTs (or items) within previously created Collections. To create an NFT, the USER must upload a file, name, description and Licence Terms and select the Collection to which they wish to add it.
The file provided by the Creator USER to be tokenised in the NFT will be hosted in an IPFS Distributed Storage Service, with the IPFS address being incorporated into the NFT metadata.
TU.com will establish and communicate to the Creator USER the number of NFTs that they are authorised to sell in TU Gallery, and this limit cannot be exceeded without prior authorisation from TU.com. Each Creator USER may have a different limit as provided in the Contract with the creator company.
The Creator USER has the option of editing the NFTs and the Collections made up of them with the following restrictions: (i) in the event that the Collection has been published, only the titles, associated images and description of the Collection may be edited free of charge. In the event that the USER wishes to modify any other data connected to Blockchain, this change will have an associated Gas Cost; and (ii) in the event that an NFT from a Collection has been purchased, it will not be possible to edit the Collection to which it belongs or the remaining NFTs that comprise it, with the exception of the price of the NFTs, which may be modified.
The Creator USER has the option of publishing the Collection(s) they have previously created on TU Gallery. To do so, the USER must (i) set the price of the NFTs in the Collection, (ii) select the ‘Publish’ option, (iii) pay the applicable Minteo fee and (iv) sign the transaction with their Wallet so that it is recorded on the Blockchain.
Once this action has been carried out, it can only be undone under the conditions indicated in the following section.
The Creator USER has the option of unpublishing a Collection as long as an NFT that is part of that Collection has not been sold.
The Creator USER has the option of republishing a previously unpublished Collection.
If the Collection has not been published, this transaction will not incur a Gas Cost. If the Collection has been published, the publication transaction will incur a Gas Cost and the USER must pay the Minting fee.
The Creator USER has the option of hiding an NFT provided that (i) it has not been purchased or (ii) it does not belong to a Collection containing a purchased NFT.
The USER may hide the NFT, subject to the provisions of the preceding paragraph, from TU Gallery or from Blockchain. In the latter case, the action will incur a Gas Cost.
The USER has the option of becoming a TU Gallery buyer by accessing TU Gallery with their Wallet credentials through the ‘Connect your Wallet’ section or by connecting their Wallet through an NFT purchase link published on TU Gallery. This action will make the USER a ‘Buyer’ for the purposes of these General Conditions.
The Buyer USER must identify themselves in order to purchase NFTs on TU Gallery. To do so, they must complete the form that will be displayed before making a purchase and follow the steps indicated by TU.com for this purpose. Once their identity has been verified, the Buyer USER may continue with the purchase.
Within the framework of TU Gallery, the Buyer USER will only carry out transactions directly with the Creator USER, with TU.com remaining outside of any agreement or relationship established between the two.
The Buyer USER has the option to purchase the NFTs published in Collections on TU Gallery, but does not have the option to purchase an entire Collection of NFTs through a single purchase action. The USER Purchaser will also have the option to view the purchased NFTs and those marked as favourites.
To make a purchase, the USER must accept the terms presented and connect their Wallet if they have not already done so.
The USER will be able to view all the Collections and NFTs that make them up that have been published in TU Gallery.
The following are excluded from the object of these General Conditions:
These General Conditions between TELEFÓNICA and the USER shall come into force and effect from the date on which the USER first accepts them by clicking on the button provided by TELEFÓNICA for this purpose.
From the moment of acceptance of these General Conditions, the provision of the Service shall be understood to commence indefinitely, as long as the USER does not request cancellation or any of the circumstances that entail the definitive interruption of the Service in accordance with what is described in these General Conditions arise.
The USER Purchaser is obliged to pay the price indicated in each NFT in accordance with these General Conditions and the Licence Terms provided by the USER Creator. In the event of a conflict between the General Conditions and the Licence Terms, the provisions of the General Conditions shall prevail.
The USER Purchaser shall also bear the Gas Cost applicable to the transaction they carry out, which shall be indicated approximately during the purchase process, since it is not a fixed price, but may vary depending on the type of transaction or operation in question.
The USER is aware of and accepts that transactions made on TU Gallery have an associated Gas Cost that is variable and independent of TU.com, and therefore it is the USER's responsibility to find out about the application of these costs.
It is the sole responsibility of the USER to determine if, and to what extent, taxes are applicable to any transaction made through TU Gallery and to report or pay the correct amount of taxes to the corresponding tax authorities. All this in accordance with the applicable regulations in each case.
The USER undertakes:
For security reasons and to better control fraud, TU.com may ask the USER for certain information and documentation to verify their identity in accordance with applicable law:
Likewise, TU.com may request additional information and documents from the USER as a result of certain circumstances, including to comply with applicable regulations, to comply with the requirement or request of a competent authority, or to prevent, detect or investigate a possible violation of these General Conditions, as well as the commission of allegedly illegal or fraudulent acts.
In such cases, TU.com may, at its discretion, disable the Account and block all access to the Service by the USER until TU.com receives and processes the information and/or documents. In the event that the USER does not provide the information and document in a complete and accurate manner, TU.com may refuse to restore access to the Service. In these cases, such actions will exclude the possibility of the USER being able to claim any right to compensation against TU.com.
The conditions of protection of personal data applicable to the Service, access and use of TU Gallery by the USER are regulated by the applicable Privacy Policy, available at all times for consultation in the footer of the TU Gallery website.
The applicable Privacy Policy forms an integral part of the General Terms and Conditions and must be accepted by the USER together with the General Terms and Conditions, in the same act of acceptance.
The USER undertakes to make reasonable use of the functionalities and services included in the Service, as well as any other related services or functionalities that TU.com and/or its third party collaborators provide through TU Gallery. The USER shall be liable to TU.com for any use other than the above that may cause damage or harm to TU.com or to third parties and, in particular, for any use of the TU.com Service that involves the resale or subsequent commercialisation of said Service.
In the event that the USER fails to comply with the commitments contained in this clause, TU. com reserves the right to (i) definitively suspend or interrupt the Service to said USER (being able, if it so decides, to make the re-establishment of the Service conditional upon the USER providing the information, documentation and, in general, guarantees requested by TU.com), (ii) remove or block any TU Gallery Content created or published by said USER, (iii) the limitation of access by said USER to certain functionalities of TU Gallery, (iv) the limitation of viewing, buying, selling, transferring available NFTs by said USER and, specifically, to the removal of files that have been tokenised from the distributed storage service if possible, and (v) any other action arising from the improper use of the Service by the USER.
In general, the USER agrees that they will not violate any law, contract, intellectual or industrial property of TU.com and/or third parties during the use of the Service, and declares that they are solely responsible for their conduct and content during their use of the Service. In line with the above, in particular, the USER undertakes not to:
The USER accepts that all the elements integrated in TU Gallery of TU.com, including, without limitation, appearance, images, materials, logos, texts, files and designs, are protected by legislation on Intellectual and Industrial Property Rights and that the rights over them correspond either to TU.com and/or, where applicable, to its affiliates, collaborators or licensors.
In this respect, TU.com and/or, where applicable, such affiliates, collaborators or licensors, shall retain full ownership of the Intellectual and Industrial Property Rights belonging to them at the time of executing these General Conditions and shall also be entitled to the Intellectual and Industrial Property Rights relating to any content, software, technology and/or documentation, created, developed, modified, improved or transformed as a consequence of the provision of the Service.
The USER may not copy, imitate or use, partially or in their entirety, the elements subject to Intellectual and Industrial Property Rights of TU.com without their prior written authorisation.
Notwithstanding the above, TU.com grants the USER a limited, non-exclusive, non-transferable, non-sublicensable, personal licence, for as long as these General Conditions are in force, to access or use the Intellectual and Industrial Property Rights relating to the Service solely and exclusively for the development of the Service, in accordance with the provisions of these General Conditions. TU.com does not grant any other licence or authorisation of use of any kind over its Intellectual or Industrial Property Rights or over any other property or right related to the Service.
TU.com is exempt from any responsibility with respect to the fulfilment and guarantee of the Intellectual and Industrial Property Rights associated with the NFT and/or the Underlying Asset, in accordance with the provisions of applicable law, with the Creator USER being solely liable to the Buyer USER, or any other third party that may be affected, for any breach in this area.
The USER is solely responsible for the use of the Service and any information provided, as well as for compliance with applicable laws and these General Conditions.
The USER grants TU.com a worldwide, free, exclusive, irrevocable, indefinite in time, transferable and sub-licensable licence to use, reproduce, copy, modify and display any Content, without prejudice to the intellectual and industrial property rights over the same, which shall belong to its owner.
The USER declares and guarantees that they possess the necessary rights (including intellectual and industrial property rights), licences, consents and permissions to grant the rights set out in these General Conditions with respect to any Content.
The Content may not be copied, imitated or used, in whole or in part, without the permission of the owner of the rights to said Content. TU.com does not provide the USER with any guarantee regarding this Content and the Intellectual and Industrial Property Rights of third parties, and the USER is responsible for verifying the legitimacy, authenticity, identity, legality and other details of the NFTs displayed in TU Gallery.
The NFTs do not imply the assignment or transfer of the Intellectual and Industrial Property Rights over the Underlying Asset to the Purchasing USER. These rights will be reflected in the Licence Terms agreed directly between the Purchasing USERS and the Creator USERS. TU.com is not a party to these Licence Terms, which are established solely between the buyer and seller of the NFT through TU Gallery.
If a USER or any third party outside the Service requests the removal of Content for infringement of Intellectual or Industrial Property Rights, TU.com will assess the request and, where appropriate, remove said Content.
In order to evaluate the removal of the Content, TU.com will require said USER or said third party outside the service to send an email to marketnft@telefonica.com with the following information:
When submitting a request to remove Content for infringement of Intellectual or Industrial Property Rights, the USER or any third party outside the Service who makes the request declares and accepts that:
The claim will be brought to the attention of the allegedly infringing User who uploaded the claimed Content without identifying the USER or third party outside the Service who submitted it, so that the alleged infringer can argue what they deem appropriate to defend their rights over the claimed Content.
Any complaint will be dealt with as quickly as possible by TU.com, giving a reasoned response to the USER or third party outside the Service, as well as to the USER who uploaded the Content.
TU Gallery may contain links to third-party websites, as well as display third-party content, which is not under the control of TU.com. If the USER accesses this third-party content, the USER will be subject to the terms governing said content. TU.com is not responsible for such content and offers no guarantee regarding it.
Additionally, NFTs may be subject to additional conditions established directly between buying USERS and selling USERS with regard to the use and benefits associated with the NFT and/or the Underlying Asset (hereinafter, the ‘Licence Terms’). TU.com is not a party to these Licence Terms, which are established solely between the buyer and seller of the NFT. TU.com therefore excludes any liability arising from compliance or non-compliance, in whole or in part, with such Licence Terms.
These General Conditions shall be terminated, with the consequent definitive interruption of the Service, for the general causes admitted by law and, especially, for the following:
In these cases, the USER's NFTs will no longer be visible on TU Gallery of TU.com, without any type of compensation, indemnity or cost to be assumed by TU.com.
In this case, TU.com will proceed to cancel the USER and will definitively eliminate the NFTs, without any type of compensation, indemnity or cost that should be assumed by TU.com against the USER, so that they will no longer be visible in any digital market.
The USER agrees to indemnify, defend and hold harmless TU.com, as well as its current and future employees, directors, contractors, consultants, shareholders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (hereinafter, individually and collectively, the ‘Parties of TU. com ‘), against all claims, damages, awards, judgements, losses, liabilities, obligations, fines, interest, fees, expenses (including, but not limited to, attorneys’ fees and expenses) and related costs (including, but not limited to, court costs, administrative fees, settlement costs, and any other costs incurred in the course of pursuing compensation or as a result of the activation of insurance premiums for such a cause), of every kind and nature, whether known or unknown, foreseen or unforeseen (hereinafter, the ‘Claims’), including, but not limited to, damage to property or personal injury, caused by, arising from or related to (a) your use or misuse of the Service, TU Gallery, the NFTs and their Content (b) any comment or action you take against TU.com in relation to the subject matter of these General Conditions, (c) your violation or breach of any clause of these General Conditions or applicable law, (d) violation of the rights or obligations of a third party, or (e) negligence or wilful misconduct. The USER agrees to immediately notify TU.com of the existence of any claim or similar to those previously mentioned, and to cooperate with the TU.com Parties in the defence of such Claims. Furthermore, the USER agrees that the TU.com Parties will have control over the defence or settlement of any Claim. This indemnity is in addition to any other indemnity established in a written agreement between the USER and TU.com.
The USER accesses and uses the Service and the various elements of TU Gallery at their own risk, and the USER is solely responsible for any damage to their computer system or mobile device or loss of data that may result.
The USER understands and accepts that (a) the Service and TU Gallery are provided by TU.com to the USER as described in these General Conditions, without further guarantees or functionalities additional to those described; (b) their Wallet is not operated by TU. com and TU.com (i) do not have custody of or control over the content or crypto-assets of the Wallet or (ii) have the capacity to recover or transfer its content or crypto-assets, therefore TU.com does not accept any responsibility or liability to the USER in relation to their use of the Wallet and does not guarantee the use of the Service in relation to any specific Wallet; (c) TU. com (i) does not hold in custody or have control over the NFTs or the Blockchain with which the USER interacts and does not execute or carry out purchases, transfers or sales of NFTs; and (d) TU. com does not guarantee (i) that TU Gallery's NFTs will always be visible and/or available to be bought, sold or transferred and (iii) the availability of or access to tokenised assets through the IPFS Distributed Storage Service.
Likewise, the USER understands that NFTs exist only by virtue of the property record maintained on the associated Blockchain network and any transfer or sale thereof takes place on said Blockchain network. Therefore, TU.com cannot effect or otherwise control the transfer of title or right of any NFT, underlying or associated content or element.
The USER waives any compensation from TU.com on the grounds that the Service and/or TU Gallery: (a) does not comply with the description and functionalities contained in these General Conditions or does not meet the expectations of the USER; (b) is not available in an uninterrupted, timely, secure or error-free manner; (c) is not accurate, reliable, complete, legal or secure; or (d) cannot be used on any particular device or is not available in any particular geography.
Although TU.com makes every effort to ensure that the USER's access to and use of the Service is secure, TU.com cannot guarantee that the Service, TU Gallery, NFTs or their Content, as well as any action by the USER using the Service or the servers of TU.com's service providers, are free of viruses or other harmful or malicious components. Likewise, the USER understands the inherent security risks of providing information and operating online via the internet, especially with regard to their use of the Blockchain, which is why TU.com cannot guarantee the security of the data that the USER discloses online through TU Gallery. No advice or information, whether oral or obtained from TU.com (or the TU.com Parties) through the Service, may be construed as a warranty if not directly derived from the provisions of these General Terms and Conditions.
To the extent permitted by law, the USER accepts that under no circumstances will TU.com or its service providers be held responsible to him or any third party for (a) any loss of earnings or any indirect or consequential damage arising from these General Conditions or the Service, products or sites and third-party products; (b) unavoidable events due to force majeure; (c) any damages related to loss of income, loss of production, loss of profits, loss of business, loss of anticipated savings, loss of opportunity, loss of goodwill or loss of data, whether direct or indirect, and even if foreseeable or if TU. com or its service providers have been advised of the possibility of such damages; and/or (d) any other claim, demand or damage of any kind resulting from or related to these General Conditions arising from: (i) USER errors, even if unintentional or without bad faith, such as, for example, unintentional payments or incorrectly constructed transactions, or with misspelled addresses; (ii) failure of the TU Gallery server or interruption of data processes; (iii) unauthorised access or use; (iv) any unauthorised activity by third parties, including, but not limited to, the use of viruses, phishing, brute force or other means of attack against the Service or TU Gallery itself; (v) any vulnerability or any type of failure, abnormal behaviour of the software involved (for example, in the Wallet or the Smart Contract), the Blockchain network or any other feature of the NFTs; and/or (vi) late reports by developers or representatives (or any other reports) of any problems with the Blockchain network supporting the NFTs, including forks, technical node problems or any other problems resulting in losses or injuries.
The Service offered through TU Gallery complies with the provisions of Spanish law. TU.com is not responsible for those services that do not comply with the provisions of the legal system of other countries from which the Service could be accessed.
WITHOUT PREJUDICE TO ANY PROVISION TO THE CONTRARY CONTAINED IN THESE GENERAL CONDITIONS, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM TOTAL LIABILITY OF TU. com THAT ARISES FROM OR IS RELATED IN ANY WAY TO THESE GENERAL CONDITIONS, THE ACCESS TO AND USE OF THE SERVICE, CONTENT, NFT, THE UNDERLYING ASSET, OR ANY PRODUCT OR SERVICE OF TU.com SHALL EXCEED THAT RECEIVED BY TU. com FOR THE SERVICE PROVIDED DIRECTLY RELATED TO THE SUBJECT OF THE CLAIM.
With regard to the regulations on the Prevention of Money Laundering and/or the Financing of Terrorism, although the activity of creating and publishing NFTs is not included as a subject activity within Law 10/2010, given the nature of the risk of Money Laundering and/or Terrorist Financing, the Creator User guarantees that the addresses associated with their Wallet used for connection and interaction with TU Gallery of TU. com, as well as the creation and reception of NFTs, are not directly or indirectly associated with risky entities or events such as hacking, darknet markets, fraud or terrorist financing, among others.
In this sense, TU.com reserves the right to analyse the risks associated with the addresses linked to the creators and may restrict such interaction if risks related to money laundering and/or terrorist financing, as well as other possible illicit associations, are detected.
The USER accepts and acknowledges that:
TU.com may assign the General Conditions or the rights arising from them to any company in the TELEFÓNICA GROUP that may provide the Service in the future, in which case the USER will be notified in the terms provided in these General Conditions, without prejudice to the USER's right to request cancellation of the Service.
The USER may not transfer or assign these General Conditions or the rights and licences granted by TU.com under them without the consent of TU.com.
All notifications, modifications and communications from TU.com to the USER will be made in one of the following ways, as appropriate: (a) by email to any of the email addresses provided by the USER; (b) on the screen of the Service itself; or (c) by publication on the TU.com websites when such information is of a general nature for all USERS. TU.com may also report on issues relating to the Service by posting on its website when such information is of a general nature for all USERS. For these purposes, the USER declares that all the data provided by him/her is true and correct and undertakes to notify TU.com of any changes to the information necessary for the management and maintenance of the contractual relationship between TU.com and the USER.
TU.com shall make, as long as it deems it necessary, at its sole discretion, any change, correction, improvement or modification in the information regarding the object and content of these General Conditions without granting the USER any right of claim or compensation or recognition of an obligation. In the event of making material changes, TU.com will make its best efforts to duly publicise and disseminate these modifications, as soon as possible and through the means it deems appropriate in each case.
By continuing to access or use the Service, the USER confirms their acceptance of the revised General Conditions and all the terms incorporated in them by reference in force from the date on which these General Conditions are updated. It is the sole responsibility of the USER to review the General Conditions from time to time to see such changes and ensure that they understand the terms and conditions that apply when accessing or using the Service.
TU.com has implemented robust measures to guarantee the security, confidentiality and privacy of information. Similarly, we may establish policies of reasonable use of TU Gallery in order to prevent possible fraud, or illicit and/or abusive use. Excessive or unreasonable use is understood to be that which is significantly above the average use made by USERS in general.
In these cases, TU.com may notify the USER, and also reserves the right to suspend the service to the USER, either temporarily or permanently.
TU.com may inform the competent authorities or collaborate with them in the event of any possible infringement of current legislation that is detected and/or investigated, especially in the event that such an infringement could imply or be related to the commission of a crime.
In the event that any of the clauses (or part of them) of these General Conditions is declared contrary to equity or law and is invalidated by a judicial body or other competent authority, such invalidity shall not affect the rest of the clauses, which shall remain in force in all their terms.
These General Conditions and all the terms to which they refer constitute the entire agreement and commitment between the USER and TU.com with regard to the subject matter hereof.
The failure of TU.com to exercise any right or provision of these General Conditions shall not constitute a waiver of such right or provision.
All clauses which, by their nature, should survive the termination of the General Conditions will continue in full force and effect after any termination of these General Conditions by TU.com or the USER. Termination will not limit the rights that TU.com may have by law.
In the event of any contradiction between the Spanish, English and Portuguese versions of the General Conditions, the provisions of the Spanish General Conditions shall prevail.
Unless another address is indicated for a specific purpose throughout these General Conditions, all communications from the USER to TU.com should be sent to the following email address: marketnft@telefonica.com.
For these purposes, USERS' support and customer service will be provided online through this address and will be dealt with as soon as possible, during working hours from Monday to Friday, provided that it is not a public holiday.
Likewise, the USER may submit any request or complaint related to these General Conditions to this email address.
In any case, TU.com reminds USERS that, in the event of wanting to make a complaint regarding purchases made through TU Gallery, it will be the responsibility of and should be addressed to the Creator USER.
If the response from the Creator USER does not satisfy the Buyer USER or the Creator USER does not reply to the Buyer USER, there are various channels that the Buyer USER could activate against the Creator USER, namely:
If the response of the Creator USER does not satisfy the Buyer USER or the Creator USER does not reply to the Buyer USER, there are various courses of action that the Buyer USER could take against the Creator USER, namely:
To this end, TU.com will not deal with nor be liable for any complaints related to purchases made by USERS, and hereby declines and excludes any liability to this effect.
These General Conditions shall be governed by Spanish law. In the event of any dispute regarding the interpretation or execution of these conditions, the USER shall submit to the jurisdiction of the Courts and Tribunals of the city of Madrid, Spain, with the exclusion and waiver of any other jurisdiction that may correspond.