Terms of Service
Last Updated: May 26, 2022
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION AND AFFECT YOUR LEGAL RIGHTS. THESE TERMS INCLUDE A MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER WHICH REQUIRE ANY DISPUTES BETWEEN US TO BE RESOLVED THROUGH INDIVIDUAL ARBITRATION (WITH ONLY LIMITED EXCEPTIONS). BY CLICKING TO ACCEPT AND/OR USING OUR SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE. WE REQUIRE ALL USERS TO BE AT LEAST 18 YEARS OLD. IF YOU ARE AT LEAST 13 YEARS OLD BUT UNDER 18 YEARS OLD, YOU MAY ONLY USE OUR SERVICES THROUGH A PARENT OR GUARDIAN'S ACCOUNT AND WITH THEIR APPROVAL AND OVERSIGHT. THAT ACCOUNT HOLDER IS RESPONSIBLE FOR YOUR ACTIONS USING THE ACCOUNT. For purposes of these Terms, “Fractal,” “we,” “us” or “our” means Fractal Wagmi Inc., a Delaware corporation, and “user”, “you”, and “your” means you as the user of the Service.
These Terms of Service (these “Terms”) govern your access to and use of the Fractal website, our APIs, and any other software, tools, features, or functionalities provided on or in connection with our services, including using our services to connect directly with others to purchase, sell, or transfer “NFTs” (non-fungible tokens implemented on a blockchain such as Solana, Ethereum etc.) (collectively, the “Service”).
Fractal reserves the right to change or modify these Terms at any time in our sole discretion. If we make material changes to these Terms, we will use reasonable efforts to provide notice of such changes, such as by providing notice through the Service or updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Service, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference effective as of the date these Terms are updated. It is your sole responsibility to review the Terms from time to time to view such changes and to ensure that you understand the terms and conditions that apply when you access or use the Service.
Fractal is a platform that facilitates transactions between buyers and sellers in the buying and selling of NFTs. To use our Service, you must use a wallet which will allow you to engage in transactions on the blockchains. Your blockchain address associated with your linked wallet functions as your identity on Fractal and will establish your account with Fractal (“Account”). Your Account will display the NFTs for that blockchain address and any content associated with such NFTs.
While Fractal will take fees from transactions on the sale of NFTs on the platform, Fractal is not party to any agreement between any users. You bear full responsibility for verifying the identity, legitimacy, and authenticity of NFTs that you purchase from third-party sellers using the Service and we make no claims about the identity, legitimacy, functionality, or authenticity of users or NFTs (and any content associated with such NFTs) visible on the Service.
Fractal is not an exchange, broker, financial institution, or creditor. We do not have custody or control over the NFTs or blockchains you are interacting with.
License to Service
You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable, and personal license to access and use the Service provided, however, that such license is subject to your compliance with these Terms. If any software, content, or other materials owned by, controlled by, or licensed to us are distributed or made available to you as part of your use of the Service, we hereby grant you a non-commercial, personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content, and materials provided to you as part of the Service, in each case for the sole purpose of enabling you to use the Service as permitted by these Terms, provided that your license in any content linked to or associated with any NFTs is solely as set forth by the applicable seller or creator of such NFT.
Third-Party Content and Services
As a peer-to-peer web3 service, Fractal helps you explore NFTs created by third parties and interact with different blockchains. Fractal does not make any representations or warranties about this third-party content visible through our Service, including any content associated with NFTs displayed on the Service, and you bear responsibility for verifying the legitimacy, authenticity, and legality of NFTs that you purchase from third-party sellers. We also cannot guarantee that any NFTs visible on Fractal will always remain visible and/or available to be bought, sold, or transferred.
NFTs may be subject to terms directly between buyers and sellers with respect to the use of the NFT content and benefits associated with a given NFT (“Purchase Terms”). For example, you may notice a third party link to the creator's website with respect to certain NFTs. Such website may include Purchase Terms governing the use of the NFT that you will be required to comply with. Fractal is not a party to any such Purchase Terms, which are solely between the buyer and the seller. The buyer and seller are entirely responsible for communicating, promulgating, agreeing to, and enforcing Purchase Terms. You are solely responsible for reviewing such Purchase Terms. You also agree that you are solely responsible for determining whether any taxes apply to your transactions facilitated on the Fractal platform and the payment thereof.
The Service may also contain links or functionality to access or use third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”), or otherwise display, include, or make available content, data, information, services, applications, or materials from third parties (“Third-Party Materials”). When you click on a link to, or access and use, a Third-Party Website or Third-Party Application, though we may not warn you that you have left our Service, you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications, and Third-Party Materials are not under the control of Fractal, and may be “open” applications for which no recourse is possible. Fractal is not responsible or liable for any Third-Party Websites, Third-Party Applications, and Third-Party Materials. Fractal provides links to these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or their products or services or associated Third-Party Materials. You use all links in Third-Party Websites, Third-Party Applications, and Third-Party Materials at your own risk.
For the sales of certain NFTs on the Fractal platform, the NFTs are new to the market and have been “minted” by the developers of video games (“Games”) for sale to users for the first time (the “Mint”). In many of these cases, the Game developer may be using the amounts raised from the Mint to fund the development of the Games.
Fractal makes no representation or warranty with regard to the Game development or the use of the NFTs in any such Games. Responsibility for the Game development lies entirely with the Game developer. Game development is inherently risky and it is possible that the developers fail to develop the Games they have described on the Fractal Platform or that the Game or the functionality of the NFT is different than as described. Fractal does not guarantee the development of any Game or the ability to use the NFTs. Fractal does not offer any refunds.
Fractal is not a party to any agreement among its users. Fractal is not liable for any damages or losses related to your use of the Services. We don't become involved in disputes between users, or between users and any third party relating to the use of the Services. When you use the Services, you release Fractal from claims, damages, and demands of every kind—known or unknown, suspected or unsuspected, disclosed or undisclosed—arising out of or in any way related to such disputes and the Services. All content you access through the Services is at your own risk. You're solely responsible for any resulting damage or loss you incur or suffered by any other party.
In the cases that Fractal becomes any misuse of the Fractal platform by Game developers minting their NFTs or any other users, Fractal may in its sole discretion terminate such user's account. In order to protect the integrity of the platform, Fractal reserves the right to de-list the sales of any NFTs on its platform at any time or for any reason. Fractal is not liable for any damages as a result of any de-listing of any NFT.
In connection with the launch of the Service, Fractal “dropped” their own NFTs called “Fractals” to certain users for no charge. Fractal makes no representation or warranty with regard to the usage of Fractal in any Game or any other aspect.
Fractals are intended for consumer enjoyment only. You represent and warrant that you are not acquiring Fractals for any other purpose, including but not limited to, for speculative and/or investment purposes, use as a substitute for currency or medium of exchange, resale or redistribution and that you are not acquiring any equity or other ownership or profit-sharing interest in Fractal, its affiliates or any game as a result of your acquisition of Fractals. You also recognize that Fractals are not financial instruments nor regulated digital assets.
You warrant and covenant that you will not portray Fractals as an opportunity to gain an economic benefit or profit, or as an investment, equity, or any other ownership or profit-sharing interest in Fractals, its affiliates or any Game.
Fractal makes available to users Fractal's unhosted browser-based wallet (the “Fractal Wallet“). The Fractal Wallet enables users to store locally on their own devices, tokens, cryptocurrencies and other crypto or blockchain-based digital assets (collectively, “Digital Assets“).
When setting up your Fractal Wallet, you will be asked to log in with a Google, Twitter or Discord account (“Social Login”). You will then be provided with 12 words that are used to cryptographically secure your Digital assets (the “Seed Phrase”). You are solely responsible for the retention and security of your Seed Phrase. Fractal does not store and is not responsible in any way for the security of your Seed Phrase. If you lose your Seed Phrase, you may not be able to access, transfer or spend your Digital Assets.
Fractal will not be liable for any loss or damage arising from your failure to maintain your Seed Phrase or the confidentiality of your login information. You agree to indemnify and hold Fractal, and its affiliates, representatives, agents and personnel, harmless from any losses from your failure to maintain and keep confidential your Seed Phrase and login information.
Third Party Wallets
Fractal also makes available the ability to connect certain third party wallets to your Fractal account such as Phantom, Solflare, Torus, Ledger, Sollet and Slope (“Third Party Wallets”). You agree that Fractal has no responsibility for your use of Third Party Wallets and makes no representations or warranties regarding how the Service will operate with any Third Party Wallet.
By using your Third Party Wallet in connection with the Service, you agree that you are using that Third Party Wallet under the terms and conditions of the applicable provider of the Third Party Wallet. You are solely responsible for keeping your Third Party Wallet secure and you should never share your Third Party Wallet credentials with anyone. If you discover an issue related to your Third Party Wallet, please contact your Third Party Wallet provider. Likewise, you are solely responsible for your Account and we are not liable for any acts or omissions by you in connection with your Account or as a result of your Account or your Third Party Wallet being compromised. You agree to immediately notify us if you discover or otherwise suspect any security issues related to the Service or your Account.
Transactions on the Fractal platform may be subject to fees that Fractal collects or are self-executing as posted on the Fractal platform or otherwise set forth in these Terms. The fees that Fractal earns includes Transaction Fees (as described below) and in certain cases may include some of all of the royalties (as described below) payable on a transaction. If you are a seller of an NFT, you will receive the gross amount paid by a purchaser of a sale of your NFT (“Revenue”) on the Fractal platform less the Transaction Fee (as described below) any other applicable fees for each sale of your NFT on the Fractal platform.
“Transaction Fee” means the percentage of the Revenue generated from the sale of your NFT on the listing interface, as agreed by you, when determining to list your NFT for sale. The Transaction Fee may be, but is not required to be, the sale percentage for all sales of NFT and may be changed from time to time.
Other applicable fees may include “gas fees,” which are fees that fund the network of computers that run the decentralized blockchain network, and “royalties,” which are fees associated with the secondary sale of any NFT. You acknowledge and agree that the payment of some of such fees shall be programmed to be self-executing via a blockchain network's nonfungible token standard. Fractal does not have any control or ability to direct such funds or the obligation to collect such fees. We will have no insight into or control over these payments or transactions, nor do we have the ability to reverse any transactions. Accordingly, we will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions that you engage in via the Service.
Fractal makes no representation regarding any additional fees that you may have to pay to use an NFT in a Game. You are responsible for paying any fees imposed by Game developers for the use of the NFTs in any of their Games.
The Service provides links to our communication channels such Discord and Twitter (“Communication Channels”) designed to enable you to communicate with others in our community. Fractal has no obligation to monitor these communication channels but it may do so in connection with providing the Service. Fractal may also terminate or suspend your access to any Communication Channels at any time, without notice, for any reason. You acknowledge that any user content (including without limitation chats, postings, or materials posted by users) on the Communication Channels is neither endorsed nor controlled by us. Fractal will not under any circumstances be liable for any activity within Communication Channels. The Company is not responsible for information that you choose to share on the Communication Channels, or for the actions of other users. As a condition of your use of the Service, and without limiting your other obligations under these Terms, you agree to comply with the restrictions and rules of use set forth in these Terms as well as the terms of service and privacy policies of the Communication Channels. As an example, you agree that you will not violate any law, contract, intellectual property or other third-party right in your use of the Service, and that you are solely responsible for your conduct and content, while accessing or using the Service. You also agree that you will not:
- Use or attempt to use another user's Account without authorization from such user;
- Pose as another person or entity;
- Access the Service from a different blockchain address if we've blocked any of your other blockchain addresses from accessing the Service, unless you have our written permission first;
- Distribute spam, including through sending unwanted NFTs to other users;
- Use the Service — including through disseminating any software or interacting with any API — that could damage, disable, overburden, or impair the functioning of the Service in any manner;
- Bypass or ignore instructions that control access to the Service, including attempting to circumvent any rate limiting systems by using multiple API keys, directing traffic through multiple IP addresses;
- Use any data mining, robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Service, extract data, or otherwise interfere with or modify the rendering of Service pages or functionality;
- Reverse engineer, duplicate, decompile, disassemble, or decode any aspect of the Service, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Service;
- Sell or resell the Service or attempt to circumvent any part of the Service;
- Engage in behaviors that have the intention or the effect of artificially causing a listing to appear at the top of search results, or artificially increasing view counts, favorites, volume, or other metrics listed on the Service;
- Use the Service or data collected from our Service for any advertising or direct marketing activity (including without limitation, email marketing, SMS marketing, and telemarketing);
- Use the Service for money laundering, terrorist financing, or other illicit finance;
- Use the Service from a country sanctioned by the government of the United States or to facilitate transactions involving individuals sanctioned by the government of the United States or located in sanctioned countries;
- Use the Service to carry out any financial activities subject to registration or licensing, including but not limited to creating, selling, or buying securities, commodities, options, or debt instruments;
- Use the Service to create, sell, or buy NFTs or other items that give owners rights to participate in an ICO or any securities offering, or that are redeemable for securities, commodities, or other financial instruments;
- Use the Service to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity;
- Use the Service to buy, sell, or transfer stolen items, fraudulently obtained items, items taken without authorization, and/or any other illegally obtained items;
- Infringe or violate the intellectual property rights or any other rights of others;
- Create or display NFTs or other items that promote suicide or self-harm, incites hate or violence against others, or doxes another individual;
- Use the Service for any illegal or unauthorized purpose, including creating or displaying illegal content, such as content that may involve child sexual exploitation, or encouraging or promoting any activity that violates the Terms of Service; or
- Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service.
Fractal's name, logo, trademarks, and any Fractal product or service names, designs, logos, and slogans are the intellectual property of Fractal or our affiliates or licensors and may not be copied, imitated or used, in whole or in part, without our prior written permission in each instance. You may not use any metatags or other “hidden text” utilizing “Fractal” or any other name, trademark or product or service name of Fractal or our affiliates or licensors without our prior written permission.
The Service, including its “look and feel” (e.g., text, graphics, images, logos, page headers, button icons, and scripts), proprietary content, information and other materials, and all content and other materials contained therein, including, without limitation, the Fractal logo and all designs, text, graphics, pictures, data, software, sound files, other files, and the selection and arrangement thereof are the proprietary property of Fractal or our affiliates, licensors, or users, as applicable, and you agree not to take any action(s) inconsistent with such ownership interests. We and our affiliates, licensors, and users, as applicable, reserve all rights in connection with the Service and its content, including, without limitation, the exclusive right to create derivative works.
All other third-party trademarks, registered trademarks, and product names mentioned on the Service or contained in the content linked to or associated with any NFTs displayed on the Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable intellectual property rights holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by Fractal.
By using the Service in conjunction with creating, submitting, posting, promoting, or displaying content, or by complying with Fractal's metadata standards in your metadata API responses, you grant us a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, modify, and display any content, including but not limited to text, materials, images, files, communications, comments, feedback, suggestions, ideas, concepts, questions, data, or otherwise, that you submit or post on or through the Service for our current and future business purposes, including to provide, promote, and improve the Service. This includes any digital file, art, or other material linked to or associated with any NFTs that are displayed on the Service.
You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any content that you create, submit, post, promote, or display on or through the Service. You represent and warrant that such content does not contain material subject to copyright, trademark, publicity rights, or other intellectual property rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant Fractal the license described above, and that the content does not violate any laws.
You also represent and warrant that you will comply with all applicable laws when using the Service. Without limiting the foregoing, by using the Service, you represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo; and (b) you have not been identified as a Specially Designated National or placed on any U.S. Government list of prohibited, sanctioned, or restricted parties. If you access or use the Service outside the United States, you are solely responsible for ensuring that your access and use of the Service in such country, territory or jurisdiction does not violate any applicable laws.
Fractal may require you to provide additional information and documents in certain circumstances, such as at the request of any government authority, as any applicable law or regulation dictates, or to investigate a potential violation of these Terms. In such cases, Fractal, in its sole discretion, may disable your Account and block your ability to access the Service until such additional information and documents are processed by Fractal. If you do not provide complete and accurate information in response to such a request, Fractal may refuse to restore your access to the Service.
Fractal complies with the Digital Millennium Copyright Act (the “DMCA”). The DMCA lays out a system of legal requirements for dealing with allegations of copyright infringement. We respond to notices of alleged infringement if they comply with the law. We reserve the right to delete or disable content alleged to be infringing, and to terminate accounts for repeat infringers. Fractal does this when appropriate and at its sole discretion.
If you'd like to submit a claim of copyright infringement or you believe your content has been copied in a way that constitutes copyright or trademark infringement, or violates your publicity or other intellectual property rights, please use this form. You may also contact our designated agent for notice of alleged copyright infringement at:
Fractal Wagmi Inc.
Attn: Copyright Agent
1031 E Brandon BLVD #2468 Brandon FL 33511
If you choose to write to us, your notice must include:
- Identification of the copyrighted work and the rights that you claim are being infringed;
- Identification of the allegedly infringing material, including a description of the specific location (i.e., urls) on the Service;
- Your contact information — at a minimum, your full legal name (not pseudonym) and email address;
- A declaration that contains all of the following:
- A statement that you have a good faith belief that use of the material is not authorized by the intellectual property rights owner, its agent, or the law;
- A statement that the information in the notice is accurate; and
- A statement under penalty of perjury that you are authorized to act on behalf of the intellectual property owner of the intellectual property that is allegedly being infringed.
- Your physical or electronic signature.
Please note that we will forward your notice of intellectual property infringement, including your contact information, to the alleged infringing party so they have notice of the claim and can contact you directly to resolve any dispute.
By agreeing to these Terms and accessing the Service, you agree, to the fullest extent permitted by applicable law, to indemnify, defend, and hold harmless Fractal, 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 (individually and collectively, the “Fractal Parties”), from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, 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 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”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Service, content, NFTs, or content linked to or associated with any NFTs, (b) your violation or breach of any term of these Terms or applicable law, (c) your violation of the rights of or obligations to a third party, including another user or third-party, and (d) your negligence or willful misconduct. You agree to promptly notify Fractal of any Claims and cooperate with the Fractal Parties in defending such Claims. You further agree that the Fractal Parties shall have control of the defense or settlement of any Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND FRACTAL.
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND FRACTAL EXPRESSLY DISCLAIMS WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. FRACTAL (AND ITS SUPPLIERS) MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY FOR WHETHER THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. FRACTAL DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FRACTAL WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. WHILE FRACTAL ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE SAFE, FRACTAL CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, CONTENT LINKED TO OR ASSOCIATED WITH ANY NFTS, OR ANY NFTS YOU INTERACT WITH USING OUR SERVICE OR OUR SERVICE PROVIDERS' SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. NO ADVICE OR INFORMATION, WHETHER ORAL OR OBTAINED FROM THE FRACTAL PARTIES OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD FRACTAL RESPONSIBLE FOR ANY BREACH OF SECURITY.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF NFTS, CONTENT, AND/OR CONTENT LINKED TO OR ASSOCIATED WITH NFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (A) USER ERROR, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) UNAUTHORIZED ACCESS OR USE; (D) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR NFTS.
NFTS EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ASSOCIATED BLOCKCHAIN (E.G., SOLANA, ETHEREUM ETC.). ANY TRANSFERS OR SALES OCCUR ON THE ASSOCIATED BLOCKCHAIN. FRACTAL AND/OR ANY OTHER FRACTAL PARTY CANNOT EFFECT OR OTHERWISE CONTROL THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS OR UNDERLYING OR ASSOCIATED CONTENT OR ITEMS.
NO FRACTAL PARTY IS RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE NFTS. NO FRACTAL PARTY IS RESPONSIBLE FOR LOSSES OR INJURY DUE TO LATE REPORTS BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING LOSSES OR INJURY AS A RESULT.
Some jurisdictions do not allow the exclusion of implied warranties in contracts with consumers, so the above exclusion may not apply to you.
Assumption of Risk
You accept and acknowledge:
- The value of an NFTs is subjective. Prices of NFTs are subject to volatility and fluctuations in the price of cryptocurrency can also materially and adversely affect NFT prices. You acknowledge that you fully understand this subjectivity and volatility and that you may lose money.
- A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility of NFTs.
- The regulatory regime governing blockchain technologies, non-fungible tokens, cryptocurrency, and other crypto-based items is uncertain, and new regulations or policies may materially adversely affect the development of the Service and the utility of NFTs.
- You are solely responsible for determining what, if any, taxes apply to your transactions. Fractal is not responsible for determining the taxes that apply to your NFTs.
- There are risks associated with purchasing items associated with content created by third parties through peer-to-peer transactions, including but not limited to, the risk of purchasing counterfeit items, mislabeled items, items that are vulnerable to metadata decay, items on smart contracts with bugs, and items that may become untransferable. You represent and warrant that you have done sufficient research before making any decisions to sell, obtain, transfer, or otherwise interact with any NFTs or accounts/collections.
- We do not control the public blockchains that you are interacting with and we do not control certain smart contracts and protocols that may be integral to your ability to complete transactions on these public blockchains. Additionally, blockchain transactions are irreversible and Fractal has no ability to reverse any transactions on the blockchain.
- There are risks associated with using Internet and blockchain based products, including, but not limited to, the risk associated with hardware, software, and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to your wallet or Account. You accept and acknowledge that Fractal will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Service or any Blockchain network, however caused.
- The Service relies on third-party platforms and/or vendors. If we are unable to maintain a good relationship with such platform providers and/or vendors; if the terms and conditions or pricing of such platform providers and/or vendors change; if we violate or cannot comply with the terms and conditions of such platforms and/or vendors; or if any of such platforms and/or vendors loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and use of the Service will suffer.
- Fractal reserves the right to hide collections, contracts, and items affected by any of these issues or by other issues. Items you purchase may become inaccessible on Fractal. Under no circumstances shall the inability to view items on Fractal or an inability to use the Service in conjunction with the purchase, sale, or transfer of items available on any blockchains serve as grounds for a claim against Fractal.
- If you have a dispute with one or more users, YOU RELEASE US FROM CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN ENTERING INTO THIS RELEASE YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL FRACTAL OR ITS SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM THESE TERMS OR THE SERVICE, PRODUCTS OR THIRD-PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF FRACTAL OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) FOR ANY OTHER CLAIM, DEMAND, OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF THE DELIVERY, USE, OR PERFORMANCE OF THE SERVICE. ACCESS TO, AND USE OF, THE SERVICE, PRODUCTS OR THIRD-PARTY SITES, AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF FRACTAL ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO AND USE OF THE SERVICE, CONTENT, NFTS, OR ANY FRACTAL PRODUCTS OR SERVICES EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT RECEIVED BY FRACTAL FOR ITS SERVICE DIRECTLY RELATING TO THE ITEMS THAT ARE THE SUBJECT OF THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
Modifications to the Service
We reserve the right in our sole discretion to modify, suspend, or discontinue, temporarily or permanently, the Service (or any features or parts thereof) at any time and without liability as a result. In addition, Fractal in its sole discretion may conduct periodic updating, maintenance, or repair of the Service, and as a result your access and use of the Service may be interrupted. The Service may also be interrupted for other reasons such as equipment malfunction or as a result of disruption of services provided by third parties.
Notwithstanding anything contained in these Terms, we reserve the right, with or without notice and in our sole discretion, to suspend, disable, terminate, or delete your Account and/or your ability to access or use the Service (or any part of the foregoing) at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid. If you breach any of the provisions of these Terms, all licenses granted by Fractal will terminate automatically.
Dispute Resolution; Arbitration
Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Fractal and limits the manner in which you can seek relief from us. This section does not govern disputes between users or between users and third parties.. Fractal does not provide dispute resolution services for such disagreements and the parties must resolve those disputes directly.
Applicability of Arbitration Agreement. You agree that any dispute, controversy, or claim relating in any way to your access or use of the Service, to any products sold or distributed through the Service, or to any aspect of your relationship with Fractal, will be resolved by binding arbitration, rather than in court, including threshold questions of the arbitrability of such dispute, controversy, or claim except that (1) you or Fractal may assert claims in small claims court, but only if the claims qualify, the claims remain only in such court, and the claims remain on an individual, non-representative, and non-class basis; and (2) you or Fractal may seek injunctive or equitable relief in a court of proper jurisdiction if the claim relates to intellectual property infringement or other misuse of intellectual property rights.
Dispute resolution process. You and Fractal both agree to engage in good-faith efforts to resolve disputes prior to either party initiating an arbitration, small claims court proceeding, or equitable relief for intellectual property infringement. You must initiate this dispute resolution process by sending a letter describing the nature of your claim and desired resolution to 1031 E Brandon BLVD #2468 Brandon FL 33511. Both parties agree to meet and confer personally, by telephone, or by videoconference (hereinafter “Conference”) to discuss the dispute and attempt in good faith to reach a mutually beneficial outcome that avoids the expenses of arbitration or, where applicable, litigation. If you are represented by counsel, your counsel may participate in the Conference as well, but you agree to fully participate in the Conference. Likewise, if Fractal is represented by counsel, its counsel may participate in the Conference as well, but Fractal agrees to have a company representative fully participate in the Conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process and Conference required by this paragraph. If the parties do not reach agreement to resolve the dispute within thirty (30) days after initiation of this dispute resolution process, either party may commence arbitration, file an action in small claims court, or file a claim for injunctive or equitable relief in a court of proper jurisdiction for matters relating to intellectual property infringement, if the claims qualify.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding after participating in the dispute resolution process, you must send a letter requesting arbitration and describing your claim to 1031 E Brandon BLVD #2468 Brandon FL 33511. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS's most current version of the Streamlined Arbitration Rules and the JAMS Consumer Minimum Standards then in effect; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards then in effect. JAMS's rules are available at jamsadr.com or by calling JAMS at 800-352- 5267. If JAMS is not available to arbitrate, the parties will mutually select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS filing, administrative, hearing, and/or other fees and cannot obtain a waiver from JAMS, Fractal will pay them for you if you complied with the dispute resolution process set forth above. In addition, Fractal will reimburse all such JAMS filing, administrative, hearing, and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous or you did not comply with the dispute resolution process set forth above, except that if you have initiated the arbitration claim, you will still be required to pay the lesser of $250 or the maximum amount permitted under the JAMS Rules for arbitration claims initiated by you. You are still responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses. You may choose to have the arbitration conducted by telephone or videoconference, based on written submissions, in person in your hometown area (if you live in the United States), or at another mutually agreed upon location that is reasonably convenient to you. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Waiver of Jury Trial. YOU AND FRACTAL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Fractal are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified above (“Applicability of Arbitration Agreement”). An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class Actions and Class Arbitrations. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A REPRESENTATIVE OR COLLECTIVE CLASS BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER, PERSON, OR ENTITY CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER, PERSON, OR ENTITY. Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party's claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and Fractal agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties. If a decision is issued stating that applicable law precludes enforcement of any part of this subsection's limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the state or federal courts located in San Francisco County in the State of California. All other claims shall be arbitrated.
Governing Law and Venue
These Terms and your access to and use of the Service shall be governed by and construed and enforced in accordance with the laws of the State of California without regard to conflict of law rules or principles. Any dispute between the parties that is not subject to arbitration as set forth above shall be resolved in the state or federal courts of San Francisco County in California.
If any term, clause, or provision of these Terms is held invalid or unenforceable, then that term, clause, or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause, or provision, or any other term, clause, or provision of these Terms.
You agree that a breach of these Terms will cause irreparable injury to Fractal for which monetary damages would not be an adequate remedy and Fractal shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
You agree that you will not export or re-export, directly or indirectly, the Service, and/or other information or materials provided by Fractal hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by Fractal or you. Termination will not limit any of Fractal's other rights or remedies at law or in equity.
These Terms constitute the entire agreement between you and Fractal relating to your access to and use of the Service. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Fractal, but may be transferred or assigned by us without notice or restriction.
Fractal's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect.
The Service is operated by us in the United States. Those who choose to access the Service from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. You and Fractal agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.