Users Terms and Conditions
Last updated: April 2023
Welcome to Fair.xyz, owned and operated by FAIR.XYZ LIMITED, a company registered in England and Wales, with company number 13932039 and registered office at 35 Ballards Lane, London, United Kingdom, N3 1XW (we or us) .
These Terms and any documents referred herein (the Terms) govern your access to and use of our website at https://fair.xyz (the Website), our APIs, and any other solutions, software, tool, features or functionality in relation thereto, in order to, inter alia, view, explore, and trade NFTs (the Services).
By using our Services or expressly accepting our Terms, you agree to be bound by these Terms. You may not access or use our Services if you do not agree to or accept our Terms.
Definitions
In these Terms:
- (a)
“Account” refers to your account on our Services, which will be associated with your linked blockchain address when you connect your Wallet to our Services;
- (b)
“Collection” means a collection of NFTs sold by a Creator;
- (c)
“Commission” has the meaning given to it in Clause 10.3(b);
- (d)
“Creator Terms” means the contract between you and the Creator for the purchase of an NFT sold by a Creator;
- (e)
“Creators” are individuals or other persons selling a collection of NFTs or other collectibles using our Services;
- (f)
“Fees” means any fees, commissions, royalties and other charges established from time to time;
- (g)
“Gas” is a fee paid to Ethereum miners who perform transactions on your behalf, and which is paid through your own Wallet application;
- (h)
“IPFS” is a peer-to-peer protocol allowing the storage of NFTs’ metadata;
- (i)
“Mint Fees” are the service fees established by and payable to us on the purchase of NFTs, and may be amended by us from time to time in our absolute discretion;
- (j)
“NFTs” are non-fungible tokens or similar digital items implemented on a blockchain (such as the Ethereum blockchain) that can be sold and traded by using smart contracts to link or otherwise be associated with certain content or data;
- (k)
“Service Fees” has the meaning given to it in Clause 10.3(a);
- (l)
“Smart Contract” refers to computer program or transaction protocol intended to automatically execute a transaction between a User and a Creator, and which is stored on a decentralised blockchain network;
- (m)
“Wallet” means any device, program or services which allows you to store your public and/or private keys for cryptocurrency transactions;
- (n)
“you/r” or “User” means you as the user of our Services;
- (o)
references to Clauses are to clauses of these Terms;
- (p)
headings are used for ease of reference only and shall not affect the interpretation or construction of these Terms;
- (q)
words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, company, corporation, firm or partnership; and
- (r)
references to include or including or like words or expressions shall mean without limitation.
Your Status
By using our Services, you warrant that you are at least 18 years old. You must not access or use our Services if you are under 18 years old.
If you use the Services on behalf of another person, you are considered to be using the Services for both yourself and that person. In such a case, you represent and warrant that:
- (a)
you are an authorised representative of that person;
- (b)
you have authority to bind the person to these Terms; and
- (c)
you agree to these Terms on that person’s behalf.
Our Role
We are not a Wallet provider, exchange, broker, financial institution or creditor, and we do not provide any financial advice.
We are a platform facilitating transactions between Creators and Users, and we are not a party to any agreement between you and any Creators. You are responsible for reviewing any transactions, including verifying the identity, legitimacy and authenticity of any NFTs or other collectible, and any content associated with it, that you purchase from Creators using our Services. Whilst we do carry out certain checks on our Creators and their Collection, we do not warrant that Collections, or any content associated therewith, will be legitimate or authentic, or will function as expected.
Creating an Account
In order to create an Account with us, and use our Services, you must use a third party Wallet provider authorised by us. However, we do not recommend or endorse any Wallet providers, or have any sort of affiliations or connections with these providers. Your Account will be associated with your Wallet address; however, we allow Users to add a profile picture or a banner to their Account.
By using your Wallet to use the Services, you warrant that you comply with the terms and conditions of your Wallet provider. We do not operate, maintain or have any possession or control over your Wallet; we cannot retrieve or transfer any NFTs or other contents in your Wallet.
We have no responsibility over, and shall not be liable for, any issues relating to the Wallet. You are solely responsible for keeping your Account and Wallet secure, and ensuring that you do not share any passwords or seed phrases with any other person. We will never ask for your passwords or seed phrases relating to your Wallet. We will not be responsible for any acts or omissions by you, or an unauthorised third party, if your Account or Wallet has been compromised. Please immediately contact your Wallet provider in the event of an issue with your Wallet.
You must immediately contact us (here: [email protected]) in the event of any suspicious activities regarding our Services or your Account, or your Wallet.
We reserve the right to immediately suspend, disable or terminate your Account at any time and for any reason, in particular if, or if we suspect that:
- (a)
you are using your Account for money laundering purposes or any other illegal or fraudulent activities;
- (b)
you are providing us with false or concealed information;
- (c)
you are attempting to or have purchased NFTs using inappropriate methods, such as by using stolen funds, or by attempting to retain the Fees whilst executing a transaction;
- (d)
you are using bots or other forms of automation in using our Services;
- (e)
your Wallet has been compromised; or
- (f)
you have breached these Terms.
Acceptable Use Policy
Your use of the Services shall be in accordance with our Acceptable Use Policy (https://fair.xyz/acceptable) which form part of these Terms.
We reserve the right to hide or take down any Collection, NFT, contract or other any other items that are affected by any issues, or where we believe, at our absolute discretion, that they violate our Acceptable Use Policy. You agree that such event does not give rise to a ground for a claim against us. Even if the items are hidden or taken down from our Website or our Services, they are still on available on IPFS.
Smart Contracts and Creator Contracts
We provide Creators with a template Smart Contract, which they may use fully or partially to sell their Collection. We are not a party to any Smart Contract between you and a Creator.
The Creator should not be able to amend the Smart Contract once the Collection has been launched and the minting process has started. However, we do not warrant that the Creator will not amend the Smart Contract in a way that is not authorised by us.
As a Smart Contract is a computer program, we may need, and reserve the right, to update, upgrade or replace any such Smart Contract to add features or fix bugs, and/or require that your NFTs be migrated to a new Smart Contract. In such a case, we will bear the costs of deployment, and you will bear the costs of the migration (and any associated costs thereof, such as Gas).
The Smart Contracts require all properties of an NFT to be stored on IPFS. Adding data to IPFS creates a content identifier (CID) which sets out information about each NFT, including the name and description of the NFT and the Collection to which it belongs, a uniform resource identifying number which identifies the image(s) of the NFT, and other metadata. Because each CID refers only to one piece of content, no Creator or third party should be able to replace or modify the content without breaking the link. Even if the Creator or its Collection disappears, the CID relating to the NFT you purchased should remain available on IPFS. Whilst using IPFS to store NFTs is relatively secure, it is not without risks, and you agree not to hold us responsible or liable for any loss of data in relation to any NFT stored on IPFS.
The Smart Contract allows for the transaction to take place, and shows ownership of an NFT. However, whilst you may own an NFT (which is represented on the blockchain), that ownership may be subject to licences relating to aspects of intellectual property rights and other rights in and to that NFT, which may be set out in the Creator Terms. We do not guarantee that NFTs sold by Creators on our Website will be unique, original or of quality.
Intellectual Property Rights
Our Website, Services, and all content or materials therein, including the “look and feel”, logos, trade names, trade marks, designs, texts, graphics, pictures, information, data, software, sounds and other files, and the arrangement thereof (Content) are owned by us, or our affiliates or licensors. You may not copy, distribute, communicate to the public, creative derivatives of or in any way use the Content whether in whole or in part, or use any framing techniques, without our prior written approval.
You may provide us with feedback, comments and suggestions for improvements of our Services or Website (Feedback) by sending us emails, or interacting with us through Twitter, Discord or other platforms. You hereby assign to us any rights, titles and interests you may have in any such Feedback, and waive any moral rights in relation thereto. You agree that we may use and disclose any such Feedback in our absolute discretion without any compensation to you, or attributing any such Feedback to you.
You are hereby granted a limited, non-exclusive, non-transferable, non-sublicensable and personal licence to access and use our Services and Website, subject to your compliance with these Terms. Any licence to or assignment of any rights in any NFTs or Collections is solely at the discretion of the Creator, in accordance with the Creator Terms.
You hereby grant us a limited, non-exclusive licence to use a representation of any NFT you purchase through our Services for the purpose of advertising and marketing our Website and/or Services.
Claim of Infringement of Intellectual Property Rights
If you believe that any Collection or NFT infringes your intellectual property rights, you must immediately inform us by writing to [email protected], and must provide all information we require to review your claim, including:
- (a)
your contact details and proof of ID;
- (b)
a description of the copyrighted work or mark that you claim has been infringed;
- (c)
proof of ownership of the original work which has been allegedly copied or used without permission;
- (d)
a written statement by you that: (i) you are making this claim in good faith, (ii) any information provided is accurate, and (iii) you are authorised to make such statement; and
- (e)
your signature,
(your Claim).
We aim to review your Claim as soon as reasonably practicable, and reserve the right, but shall not be obliged, to terminate, disable or suspend the account or Collection of the alleged infringer.
Third Party Links and Services
Our Website and/or Services may contain links or functionality to access or use third-party websites or platforms, or otherwise display materials of third parties. When you leave our Website and/or Services by clicking on any link, you do so at your own risk and must comply with the terms of these third party websites or platforms. We are not responsible or liable for any such third party websites, platforms of materials, and do not review, approve, monitor, endorse or make any representation in relation to these third party websites, applications or materials.
We offer the option for you to purchase NFTs using a credit or debit card through a third party supplier, Paella Inc. (trading as Crossmint) (Crossmint). Crossmint will convert your fiat currency to USD (insofar as you wish to pay with another currency), and then to ETH in order for you to purchase NFTs on our Website. Your use of Crossmint’s payment processing service will be subject to fees set out by Crossmint which may include fees payable to Crossmint to carry out the conversion into ETH on your behalf. We are not responsible or liable for Crossmint and do not review, approve, monitor, endorse or make any representation in relation to Crossmint. We encourage you to review Crossmint’s terms of service.
Fees, Commissions, Royalties and other Charges
In buying NFTs directly from Creators using our Services, you may be subject to Gas fees. We are not responsible for any Gas fees which you may be required to pay through any interactions with the blockchain in using our Services. You set the Gas fees through your own Wallet application, and based on the market conditions on Ethereum.
In buying NFTs through our Services, you will be subject to our Mint Fees, which will be collected immediately and automatically on the purchase of any NFT through our Services. Our Services are currently at 0.00087ETH per NFT purchased, but may change from time to time at our absolute discretion. For the avoidance of doubt, if you purchase several NFTs in one single transaction, you will be charged the above amount per NFT purchased. If you have purchased several NFTs in a one transaction, but only some NFTs were still available for purchase at the time of the transaction, we will automatically refund the Mint Fees paid for the NFTs you were unable to purchase. Refunds of Mint Fees in relation to NFTs purchased with credit or debit cards may take up to a few hours.
We do not currently allow secondary sales through our Services. However, when we do, you may be subject to other fees, a breakdown of which will be made available to you prior to your resale or transfer of an NFT. Such Fees may include:
- (a)
service fees established and payable to us (Service Fees) on resale. Service Fees may be amended by us from time to time in our absolute discretion;
- (b)
commissions on secondary sales of NFTs and other collectibles, established by and payable to the Creators of any such NFTs or collectibles (Commissions). Commissions are in the sole discretion of the Creator and may range from 0% to 100%. You understand that you will not make any proceeds of sale where an NFT or other collectible is subject to 100% of Commission; and
- (c)
Gas, for any transaction.
Fees are paid or payable solely in the manner and currency we determine. We currently require all payments to be made automatically and immediately on purchase of an NFT in ETH.
All transactions carried out through our Services are final and binding. Unless otherwise set out in this agreement, all fees are non-refundable except at our absolute discretion (for Mint Fees, Service Fees and other fees within our control), or at applicable third parties’ discretion (Creators, Ethereum miners, etc.), even if you made a mistake, such as for example transferring NFTs to an incorrect Wallet address, or were hacked.
No Warranties
Except where otherwise expressly provided herein, to the maximum extent permitted by applicable law, our Services and Website are provided “as is” without warranty of any kind, either expressed or implied, including any implied warranty of merchantability, satisfactory quality, non-infringement or fitness for a particular purpose. Whilst we endeavour to make the Website and the Services available 24 hours a day, we cannot be liable if for any reason the Website or our Services are unavailable for any time or for any period. We do not guarantee that the Services or the Website will be uninterrupted or error-free, or comply with regulatory requirements, free of viruses or other harmful components. Due to the nature of the Internet, this cannot be guaranteed. In addition, we may occasionally need to carry out repairs, maintenance or introduce new facilities and functions.
We do not warrant that any information on our Website or Services is accurate, complete, reliable, current or error-free and we will not be liable for any loss taken in relation to any such information.
Limitation of liability
Nothing in these Terms shall exclude or limit our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, and/or any other liability which may not be limited or excluded by applicable law.
In performing any obligation under these Terms, our only duty is to exercise reasonable care and skill.
We are not selling any NFTs, or other items through our Services; we provide a marketplace for you to connect with Creators and other Users to purchase NFTs and other items directly from them. Subject to Clause 12.1:
- (a)
ownership of NFTs is maintained in the associated blockchain, i.e the Ethereum network; we do not control and cannot otherwise interfere with a transfer of title or right in any NFTs, and will not accept liability or be responsible for any losses, damages or costs incurred as a result of vulnerability or failure of any third party software (including Wallets), blockchains or other any features of any NFTs;
- (b)
we shall not accept any liability in relation to any NFTs or other items, or any loss thereof for any reason, including where such losses, damages or claims arise from:
- (i)
user errors, incorrectly constructed transactions, or mistyped Wallet addresses;
- (ii)
server failures or data loss;
- (iii)
unauthorised access or use of your Wallet or the Services; or
- (iv)
unauthorised third party activities, including the use of viruses, phishing, bruteforcing or other means of attack against the Services, the Website or NFTs;
- (c)
we shall not accept liability in respect of any Collections which we decide to take down from our Services, whether such take down is carried out before, during or after your purchase of any NFT in any such Collection where we believe that such Collection breached the Creator Terms and Conditions, or otherwise infringe the rights of any third parties. We reserve the right to take down any Collection at any time, without prior warning or consent;
- (d)
we do not warrant and we exclude all liability in respect of the accuracy, legitimacy, completeness, or legality of any information accessed using our Services, and we exclude all liability of any kind of any transmission or receipt of any material of whatever nature; and
- (e)
you should not rely on any information accessed using our Services to make a purchasing decision; you should make your own enquiries before forming your own opinion and taking an action based on any such information.
If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking these Terms or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you created your Account, both we and you knew it might happen.
We only provide access to the Services for domestic and private use. If you use the Services for any commercial, business or re-sale purpose (which include the sale or resale of NFTs for revenue or profits), we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
Save as provided in Clause 12.1, our maximum liability in relation to your use or inability to use, or delay in use of the Services, or any material in it or accessible from it, or from any action or decision taken as a result of using the Services or any such material, shall be the amount of Service Fees we took in relation to the transaction, in that cryptocurrency, to which your claim relates.
Risks of Blockchain Technology
You understand and agree that:
- (a)
there are currently no clear tax frameworks relating to NFTs. You are solely responsible for determining and paying any taxes that may apply to your transactions whilst using our Services. We are not responsible for determining taxes that may be applicable in your jurisdiction;
- (b)
the value of any NFT is directly affected by the price of cryptocurrency which is highly volatile. The fluctuation of the price of cryptocurrency may materially influence the price of NFTs, and you acknowledge that you may lose money as a result;
- (c)
the value of an NFT is subjective and dictated by the market. A lack of interest in any NFT, the Creator, or the public may influence the price of the NFT, and its potential utility, resulting in a loss of money;
- (d)
the United Kingdom does not currently impose any regulations on blockchain technologies, such as NFTs. The regulatory regime over blockchain technologies remains uncertain, and new laws and regulations which may come into force to regulate blockchain technologies in the near future may adversely impact the use of our Services, and the price or utility of NFTs;
- (e)
you must have undertaken sufficient research before buying, selling, transferring or otherwise using any NFTs or otherwise interacting with any NFTs, or other Users or Creators. There are risks associated with peer-to-peer transactions, such as buying and selling items as they may be counterfeited, infringe on the rights of others, be vulnerable to metadata decay, be transferred through smart contracts which may have bugs, and/or become impossible to transfer. We do not guarantee that the items you purchase using our Services will not be subject to any of the above-mentioned issues or other adverse issues;
- (f)
we do not control any public blockchains that you interact with in using our Services; similarly, unless otherwise stated, we do not control certain smart contracts and protocols which you will have to use in order to complete transactions on these public blockchains;
- (g)
blockchain transactions, by nature, are irreversible, and we cannot reverse any transactions on the blockchains. This also means that there is no option for you to return, cancel or exchange any items once you have accepted the contract and the transfer is completed;
- (h)
there are risks with using the Internet and blockchain technologies or blockchain-based products. We are not responsible for any issues associated with hardware, software or Internet connections in the event malicious software is introduced or unauthorised third parties access your Account or Wallet;
- (i)
we are not responsible for any communication failures, disruptions, errors, distortions or delays that you may experience when using our Services or any blockchain or other networks, howsoever caused; and
- (j)
our Services may rely on third party platforms and suppliers. Issues with these third party platforms and suppliers may affect your use of the Services.
Modification of the Services
We may change or update our Website or Services and any content therein without warning to you.
As we grow and develop our Services, we might sometimes need to provide additional terms for a specific service, and such services will be deemed part of the Services and subject of to the Terms. In the event of a conflict between these Terms and the specific terms, the specific terms will prevail for the specific services.
Data Protection
Please see our Privacy Policy (https://fair.xyz/privacy) which forms part of these Terms.
Notices
Any notice you wish to send us under these Terms shall be in writing and may be sent by personal delivery, or pre-paid or recorded delivery at our registered address set out at the beginning of these Terms or by email to [email protected]. Any such notice will be deemed to have been served two business days after the same has been posted if you are sending the notice from the UK, or if by email, on the date of transmission provided that no notice of failure to transmit the email is received.
If we are to provide you with any notice under these Terms, any such notice will be made available on our Website or Services and/or to any email address that you have provided with us in contacting us or sending us a notice. Any such notice will be deemed to have been served when posted on our Website, or if by email on the date of transmission provided that no notice of failure to transmit the email is received.
Non-Waiver of Rights
If either party fails or delays in exercising any of its rights under the Terms, it will not prevent either party from taking any steps against the other party at a later stage; unless any such rights have been waived.
Severability
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.
Non-Assignment
You shall not assign, transfer, novate, charge, sub-contract, create any trust over, or deal in any manner with these Terms or all or any of your rights, interests or obligations under these Terms.
No Partnership
Nothing in these Terms shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between you and us.
No Third Party Rights
A person who is not a party to these Terms shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
Dispute Resolution
If you have a potential claim against us, you shall first, prior to initiating any proceedings, contact us by sending an email to [email protected] (Claim Notice) describing the nature of your claim and provide us with as much information, documentation and evidence we reasonably require for us to assess your claim. If so requested by us, the parties will negotiate in good faith to seek resolution of your claim. In which case, you agree not to bring proceedings against us for at least 60 days from the date of your Claim Notice.
Governing Law and Jurisdiction
These Terms and all non-contractual relationships arising out of or connected to them shall be governed and construed in accordance with English Law.
You submit to the exclusive jurisdiction of the English courts to settle any dispute or claim which may arise under, or in respect of, these Terms, except where by law, such dispute or claim must be brought in the jurisdiction in which you are domiciled, or where the relevant law contains mandatory provisions that override such exclusive jurisdiction.
Amendment to these Terms
We reserve the right to amend these Terms at any time. All amendments to these Terms will be posted online. Continued use of the Services will be deemed to constitute acceptance of the new Terms. If you do not agree with any amendments to our Terms, you must immediately stop using our Services.
Creator Terms and Conditions
Last updated: April 2023
Welcome to Fair.xyz, owned and operated by FAIR.XYZ LIMITED, a company registered in England and Wales, with company number 13932039 and registered office at 35 Ballards Lane, London, United Kingdom, N3 1XW (we or us) .
These Terms and any documents referred herein (the Terms) govern your access to and use of our website at https://fair.xyz (the Website), our APIs, and any other solutions, software, tool, features or functionality in relation thereto, in order to, inter alia, view, explore, and trade NFTs (the Services).
By using our Services or expressly accepting our Terms, you agree to be bound by these Terms. You may not access or use our Services if you do not agree to or accept our Terms.
Definitions
In these Terms:
- (a)
“Account” refers to your account on our Services;
- (b)
“Collection” means a collection of NFTs sold by you;
- (c)
“Confidential Information” means any information in any form or medium obtained by or on behalf of one party from or on behalf of the other in relation these Terms which is expressly marked as confidential or which a reasonable person would reasonably consider to be confidential whether disclosed or obtained before, on or after the date on which you became bound by these Terms, together with any reproductions of such information or any part of this information;
- (d)
“Creator Terms” means the contract between you and the User for the sale of an NFT from your Collection;
- (e)
“Creator” or “you/r” means you, an individual or other persons selling a collection of NFTs or other collectibles using our Services;
- (f)
“Fees” means any fees and other charges established from time to time;
- (g)
“Gas” is a fee paid to Ethereum miners who perform transactions on your behalf, and which is paid through your own Wallet application;
- (h)
“IPFS” is a peer-to-peer protocol allowing the storage of NFTs’ metadata.
- (i)
“NFTs” are non-fungible tokens or similar digital items implemented on a blockchain (such as the Ethereum blockchain) that can be sold and traded by using smart contracts to link or otherwise be associated with certain content or data;
- (j)
“Service Fees” are the service fees established and payable to us on the sale NFTs, and may be amended by us from time to time in our absolute discretion;
- (k)
“Smart Contract” refers to computer program or transaction protocol intended to automatically execute a transaction between a User and a Creator, and which is stored on a decentralised blockchain network;
- (l)
“User” means a user of our Services, who buys NFTs using our Services;
- (m)
“Wallet” means any device, program or services which allows you to store your public and/or private keys for cryptocurrency transactions;
- (n)
references to Clauses are to clauses of these Terms;
- (o)
headings are used for ease of reference only and shall not affect the interpretation or construction of these Terms;
- (p)
words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, company, corporation, firm or partnership; and
- (q)
references to include or including or like words or expressions shall mean without limitation.
Your Status
By using our Services, you warrant that you are at least 18 years old. You must not access or use our Services if you are under 18 years old.
If you use the Services on behalf of another person, you are considered to be using the Services for both yourself and that person. In such a case, you represent and warrant that:
- (a)
you are an authorised representative of that person;
- (b)
you have authority to bind the person to these Terms; and
- (c)
you agree to these Terms on that person’s behalf.
Our Role
We are not a Wallet provider, exchange, broker, financial institution or creditor, and we do not provide any financial advice.
We are a platform facilitating transactions between Creators and Users, and we are not a party to any agreement between you and any Users. We provide a venue for Creators and Users to complete transactions in accordance with the provisions of these Terms and the Creator Terms. We do not verify the identity of any of our Users and are not responsible for their use of the NFTs they purchase from you.
We are not your agent and shall have no liability (subject to Clause 14.1) for the NFTs or the Collections. The enforcement of any Creator Terms is your responsibility, notwithstanding that the sale was carried out through our Services. We are not obliged to mediate between you and a User or to enforce or execute fulfilment of any Creator Terms.
Creating an Account
In order to create an Account with us, and use our Services, you must use a third party Wallet provider authorised by us. However, we do not recommend or endorse any Wallet providers, or have any sort of affiliations or connections with these providers. Your Account will be associated with your Wallet address; however, we allow Creators to add a profile picture (or a banner) to their Account.
By using your Wallet to use the Services, you warrant that you comply with the terms and conditions of your Wallet provider. We do not operate, maintain or have any possession or control over your Wallet; we cannot retrieve or transfer any NFTs or other contents in your Wallet.
We have no responsibility over, and shall not be liable for, any issues relating to the Wallet. You are solely responsible for keeping your Account and Wallet secure, and ensuring that you do not share any passwords or seed phrases with any other person. We will never ask for your passwords or seed phrases relating to your Wallet. We will not be responsible for any acts or omissions by you, or an unauthorised third party, if your Account or Wallet has been comprised. Please immediately contact your Wallet provider in the event of an issue with your Wallet.
In order to sell your Collection as a Creator, we will require you to provide us with your full name, email address, your Twitter handle or other social media platforms. We will also ask you to provide us information so that we can perform certain “Know Your Customer” (KYC) and other checks. You will not be able to launch your Collection without having first passed our KYC checks. We may require you to provide additional information and documents in certain circumstances, such as at the request of any court of competent jurisdiction, if required under applicable law, or in order to protect our interests. We may also ask you to update the information you have provided to us at any time during your use of the Services. In such a case, we reserve the right to suspend your Account and any Collection until any such additional information is received and processed. We may refuse to restore your access to your Account and Services if you fail to comply with our request.
You must maintain and update information and content you provide us as applicable. You shall not impersonate any person or use a name that you are not legally authorised to use. If you provide us with false or incorrect information or do not notify us of any change to your information or content immediately, we reserve the right to terminate your use of our Services immediately and without notice to you.
You must immediately contact us (here: [email protected]) in the event of any suspicious activities regarding our Services or your Account, or your Wallet.
We reserve the right to immediately suspend, disable or terminate your Account at any time and for any reason, in particular if, or if we suspect that:
- (a)
you are using your Account for money laundering purposes or any other illegal or fraudulent activities;
- (b)
you are providing us with false or concealed information;
- (c)
you are attempting to or are using stolen funds, or are attempting to retain NFTs or other collectibles whilst executing a transaction;
- (d)
you are using bots or other forms of automation in using our Services;
- (e)
your Wallet has been compromised; or
- (f)
you have breached the terms of Clause 5.
If we suspend, disable or terminate your Account, you must not attempt to use our Website or Services under any other name or user.
Your use of our Services
You will be entitled to create a page within our Website for your Collection, wherein you will be able to provide a description of your Collection, some information about yourself, images and links to social media platforms, in accordance with the Terms.
Prior to launching a Collection, you will be required to provide us with samples of the Collection (the Samples) for us to review and approve. You warrant that the Samples you provide us with represent a fair, accurate and true representation of your Collection. If your Samples breach the Terms, we will not allow you to proceed with the launch of your Collection using our Services, and may disable or terminate your Account.
You may use the tool we provide to create randomly generated NFTs based on your Samples and/or the specific traits provided to us which are to be included in your Collection. We are not responsible for the originality, quality or uniqueness of the NFTs generated through our tool. Subject to Clause 14.1, we shall not be liable for any infringement of any third party rights, including any intellectual property rights, in relation to any NFTs generated through our tool.
Once your Samples are approved, you will be authorised to upload all of your Collection onto the Services. The Collection will be stored on our Services until launch. Immediately prior to launch, the Collection will be transferred to IPFS, a decentralised server. Once the Collection is launched, you will not be able to make any changes to your NFTs. We are not responsible for any failures of IPFS.
We will only allow the launch of your Collection once your KYC has been approved and the Collection has been pushed onto IPFS.
By listing a Collection or any other NFTs using our Services, you warrant to us and the User that:
- (a)
you are the true owner of the NFTs, and Collection, or are properly authorised to display and sell it by the true owner and able to transfer good title to the NFT or Collection free from any third party claims, liens or encumbrances; and
- (b)
the information provided with the NFTs or Collection is true, accurate, current and complete, is not misleading or otherwise deceptive and is up-to-date;
- (c)
the NFTs will conform with all applicable laws, and not infringe rights of any third parties.
Your use of the Services shall be in accordance with our Acceptable Use Policy at https://fair.xyz/acceptable which forms part of these Terms.
You warrant to us that you will not, in any event, create or upload onto our Services, or to your Collection any illegal or immoral content, including content that:
- (a)
may involve child sexual exploitations;
- (b)
promotes suicide or self-harm, incites hate or violence against others;
- (c)
is offensive, or promotes discrimination based on race, sex, religion, national origin, physical ability, sexual orientation or age;
- (d)
infringes on third parties intellectual property rights;
- (e)
doxes individuals (i.e. revealing their identity), or contains personal data of third parties without their prior written consent, in accordance with applicable data protection laws;
- (f)
is obscene, including pornographic content (including material rated R+18, home porn and hardcore material), indecent, vulgar, profane, harmful, harassing, threatening, embarrassing, malicious, abusive, menacing, defamatory, untrue or political;
- (g)
encourages others to engage in illegal activities, or any activities that violate these Terms;
- (h)
is in breach of any law, statute, regulation or byelaw of any applicable jurisdiction;
- (i)
is fraudulent, criminal or unlawful;
- (j)
is inaccurate or out-of-date;
- (k)
impersonates another person or body, or misrepresents a relationship with any person or body;
- (l)
may be contrary to our interests;
- (m)
is contrary to any specific rule or requirement that we stipulate on our Website or Services, or any part thereof, or generally; or
- (n)
involves your use, delivery or transmission of any viruses, unsolicited emails, Trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
You will ensure that any link (graphical, text or otherwise) that you (or a third party on your behalf) post to our Website and/or the Services (including any pages of our Website and/or Services containing your Collections) links Users directly to the Website and/or Services without displaying or performing any other advertisement, promotion or content (whether audio, visual, audio-visual or otherwise). You shall not take any action, or assist, authorise or encourage any third party to take any action, that would cause the appearance or presentation of the Website as seen by Users linking to the Website to be different from that seen by Users who access the Website and/or Services by hand-entering the applicable URL into a generally commercially available browser which has not been customised for a particular person. You shall not, at any time, make use of any framing techniques or technologies, interstitial advertisements, pop-up windows or consoles or other similar items or techniques in connection with any link to or on the Website and/or Services.
We do not accept any liability (subject to Clause 14.1) for information or content that you provided to us that is in breach of any provision of these Terms and that is subsequently posted on the Website and/or the Services.
We reserve the right to refuse the listing of any Collection or particular NFTs where they violate these Terms, or where we object to how you identify yourself on our Services or on the Website (including your name or use of your intellectual property rights) and/or where we believe that you are making inappropriate use of our Services or Website contrary to the terms set out herein. We reserve the right to hide or remove any Collections, NFTs, contracts and other items that are affected by any issues, or where we believe, at our absolute discretion, that they violate these Terms, in particular this Clause 5. You agree that such event does not give rise to a ground for a claim against us. Even if the items are hidden, they are still on available on IPFS.
Smart Contracts and Creator Contracts
We provide you with a template Smart Contract, which you may use fully or partially to sell your Collection. The Smart Contract requires all properties of the NFTs you wish to sell to be stored on IPFS. You may not, in any event, modify or replace, or attempt to modify or replace, any content identifier of any NFT you have sold.
As a Smart Contract is a computer program, we may need, and reserve the right, to update, upgrade or replace any such Smart Contract to add features or fix bugs, and/or require that NFTs be migrated to a new Smart Contract. In such a case, we will bear the costs of deployment, and you will bear the costs of the migration (and any associated costs thereof, such as Gas).
The Smart Contract allows for the transaction to take place, and shows ownership of an NFT. However you must ensure that you include your Creator Terms, or a link to them, setting out the terms of sale, including any intellectual property rights or other rights in and to the NFT you are selling.
Intellectual Property Rights
You grant us and our affiliates a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licensable right to exercise all intellectual property rights over the information and content that you provide us with under these Terms, including the right to use a representation of any NFT in your Collection for the purpose of advertising and marketing our Website and/or Services. You shall ensure that we retain the right to use a representation of any NFT in your Collection for such purposes after the launch and sale of any such NFTs.
Our Website, Services, and all content or materials therein, including the “look and feel”, logos, trade names, trade marks, designs, texts, graphics, pictures, information, data, software, sounds and other files, and the arrangement thereof (Content) are owned by us, or our affiliates or licensors. You may not copy, distribute, communicate to the public, creative derivatives of or in any way use the Content whether in whole or in part, or use any framing techniques, without our prior written approval.
You may provide us with feedback, comments and suggestions for improvements of our Services or Website (Feedback) by sending us emails, or interacting with us through Twitter, Discord or other platforms. You hereby assign to us any rights, titles and interests you may have in any such Feedback, and waive any moral rights in relation thereto. You agree that we may use and disclose any such Feedback in our absolute discretion without any compensation to you, or attributing any such Feedback to you.
You hereby grant us a limited, non-exclusive licence to use a representation of any NFT you purchase through our Services for the purpose of advertising and marketing our Website and/or Services.
- (a)
any resale or commercial use of our Website and Services;
- (b)
modifying, distributing, copying, republishing or making derivatives of our Website or Services; and
- (c)
the collection and use of Users wallet address or other information, or any data extraction or data mining whatsoever.
- (d)
your signature,
Claim of Infringement of Intellectual Property Rights
If you believe that any Collection or NFT infringes your intellectual property rights, you must immediately inform us by writing to [email protected], and must provide all information we require to review your claim, including:
- (a)
your contact details and proof of ID;
- (b)
a description of the copyrighted work or mark that you claim has been infringed;
- (c)
proof of ownership of the original work which has been allegedly copied or used without permission;
- (d)
a written statement by you that: (i) you are making this claim in good faith, (ii) any information provided is accurate, and (iii) you are authorised to make such statement; and
- (e)
your signature,
(your Claim).
We will aim to review your Claim as soon as reasonably practicable, and reserve the right, but shall not be obliged to terminate, suspend or disable the account or Collection of the alleged infringer.
Third Party Links and Services
Our Website and/or Services may contain links or functionality to access or use third-party websites or platforms, or otherwise display materials of third parties. When you leave our Website and/or Services by clicking on any link, you do so at your own risk and must comply with the terms of these third party websites or platforms. We are not responsible or liable for any such third party websites, platforms or materials, and do not review, approve, monitor, endorse or make any representation in relation to these third party websites, applications or materials.
Sale and taxes
You decide the price at which you want to sell the NFTs in your Collection. Such price will be inclusive of our Service Fees, VAT and any other applicable taxes.
The amounts you earn on the sale of NFTs will go directly into the Wallet that you provide us with and which is set out in the Smart Contract linked to your Collections. We do not act as a fee-collecting agent and do not hold any of your sale proceeds on your behalf.
You are responsible to determine whether VAT or other taxes apply to the sale of NFTs to the Users, and to collect, report and remit the correct tax, as applicable, to the appropriate tax authorities. You agree that we are not obliged to determine whether VAT or other taxes apply to any sale of any NFTs by you, and we are not responsible for collecting, remitting or reporting any VAT or other taxes arising from such sales.
Where applicable, you shall provide us or Users with VAT invoices on request.
Fees and other charges
In selling NFTs through our Services, you will be subject to our Service Fees, which will be collected immediately and automatically on the sale of any NFT through our Services by means of the Smart Contract. We do not currently charge Service Fees to the Creators, but this may change from time to time at our absolute discretion.
We are not responsible for any Gas fees which you may be required to pay through any interactions with the blockchain in using our Services. You set the Gas fees through your own Wallet application, and based on the market conditions on Ethereum.
Fees are paid or payable solely in the manner and currency we determine. We currently require all payments to be made automatically and immediately on the purchase of an NFT in ETH.
All transactions carried out through our Services are final and binding. All Fees are non-refundable except at our absolute discretion (for Service Fees and other fees within our control), or at applicable third parties’ discretion (Ethereum miners, etc.), even if you made a mistake, such as for example inputting an incorrect Wallet address, or were hacked.
Confidentiality
Each party shall keep and procure to be kept secret and confidential the Confidential Information of the other party and shall not use nor disclose the same save:
- (a)
for the purposes of the proper performance of its obligations or exercise of its rights under these Terms;
- (b)
as other permitted by these Terms; or
- (c)
with the prior written consent of the other party.
Where one party discloses Confidential Information of the other party to its employees, consultants, subcontractors, suppliers, customers, agents, professional advisers or insurers (Specified Persons), it shall do so subject to obligations equivalent to those set out in this Clause 12. Each party shall use its reasonable endeavours to ensure that any Specified Person complies with such obligations.
Each party shall at all times:
- (a)
adopt, retain and keep updated adequate procedures and physical security measures which protect the Confidential Information of the other party from inadvertent disclosure or release to unauthorised persons; and
- (b)
hold the Confidential Information of the other party in strict confidence and in any event with no less standard of confidentiality than that which it applies to its own confidential information.
The obligations of confidentiality in this Clause 12 shall not extend to any matter which either party can show:
- (a)
is in, or has become part of, the public domain other than as a result of the breach of the confidentiality obligations of these Terms;
- (b)
was in its written records prior to receipt other than as a result of a breach of confidentiality;
- (c)
was independently developed by it; or
- (d)
was independently disclose by a third party entitled to disclose the same.
If either party is required to disclose the Confidential Information of the other party under applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then the party so required may disclose the Confidential Information to the extent required by shall, prior to any disclosure where practicable and consult with the other party, and at the other party’s request and cost, reasonably co-operate with and assist that other party in opposing such disclosure.
The obligations of this Clause 12 shall survive termination of these Terms for whatever reason.
No Warranties
Except where otherwise expressly provided herein, to the maximum extent permitted by applicable law, our Services and Website are provided “as is” without warranty of any kind, either expressed or implied, including any implied warranty of merchantability, satisfactory quality, non-infringement or fitness for a particular purpose. Whilst we endeavour to make the Website and the Services available 24 hours a day, we cannot be liable if for any reason the Website or our Services are unavailable for any time or for any period. We do not guarantee that the Services or the Website will be uninterrupted or error-free, or comply with regulatory requirements, free of viruses or other harmful components. Due to the nature of the Internet, this cannot be guaranteed. In addition, we may occasionally need to carry out repairs, maintenance or introduce new facilities and functions.
We do not warrant that any information on our Website or Services is accurate, complete, reliable, current or error-free and we will not be liable for any loss taken in relation to any such information.
Limitation of liability
Nothing in these Terms shall exclude or limit our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, and any other liability which may not be excluded by applicable law.
In performing any obligation under these Terms, our only duty is to exercise reasonable care and skill in providing our Website and Services.
We are not purchasing or selling any NFTs, or other items through our Services, we provide a marketplace for you to connect with Users to sell NFTs and other items directly to them. Subject to Clause 14.1:
- (a)
we shall not be responsible or have any liability regarding any advice, or failure to give advice on any matters, or doing or failing to do anything, including in relation to any laws, rules, regulations, bye-laws or codes of practice;
- (b)
ownership of NFTs is maintained in the associated blockchain, i.e the Ethereum network; we do not control and cannot otherwise interfere with a transfer of title or right in any NFTs, and will not accept liability or be responsible for any losses, damages or costs incurred as a result of vulnerability or failure of any third party software (including Wallets), blockchains or other any features of any NFTs;
- (c)
we shall not accept any liability in relation to any such NFTs or other items, or any loss thereof for any reason, including where such losses, damages or claims arise from:
- (i)
user errors, incorrectly constructed transactions, or mistyped Wallet addresses;
- (ii)
server failures or data loss;
- (iii)
unauthorised access or use of your Wallet or the Services; or
- (iv)
unauthorised third party activities, including the use of viruses, phishing, bruteforcing or other means of attack against the Services, the Website or NFTs;
- (d)
we shall not accept liability in respect of any Collection which we decide to take down from our Services, whether such take down is carried out before, during or after the sale of any NFTs in any such Collection where we believe that you breached our Terms or otherwise infringed the rights of any third parties; and
- (e)
we do not warrant and we exclude all liability in respect of the accuracy, legitimacy, completeness, or legality of any information accessed using our Services, and we exclude all liability of any kind of any transmission or receipt of any material of whatever nature.
Subject to Clause 14.1:
- (a)
we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms; and
- (b)
our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of Terms shall be limited to the total amount in Ethereum, of Service Fees you paid for Collections to which your claim relates.
Risks of Blockchain Technology
You understand and agree that:
- (a)
there are currently no clear tax frameworks relating to NFTs. You are solely responsible for determining and paying any taxes that may apply to your transactions whilst using our Services. We are not responsible for determining taxes that may be applicable in your jurisdiction;
- (b)
the value of an NFT is directly affected by the price of cryptocurrency which is highly volatile. The fluctuation of the price of cryptocurrency may materially influence the price of NFTs, and you acknowledge that you may lose money as a result;
- (c)
the value of an NFT is subjective and dictated by the market. A lack of interest in an NFT, the Creator, or the public may influence the price of the NFT, and its potential utility, resulting in a loss of money;
- (d)
the United Kingdom does not currently impose any regulations on blockchain technologies, such as NFTs. The regulatory regime over blockchain technologies remains uncertain, and new laws and regulations which may come into force to regulate blockchain technologies in the near future may adversely impact the use of our Services, and the price or utility of NFTs;
- (e)
you have must have undertaken sufficient research before buying, selling, transferring or otherwise using any NFTs or otherwise interacting with any NFTs, or Users. There are risks associated with peer-to-peer transactions, such as buying and selling items as they may be counterfeited, infringe on the rights of others, be vulnerable to metadata decay, be transferred through smart contracts which may have bugs, and/or become impossible to transfer;
- (f)
we do not control any public blockchains that you interact with in using our Services; unless otherwise provided, similarly we do not control certain smart contracts and protocols which you will have to use in order to complete transactions on these public blockchains;
- (g)
blockchain transactions, by nature, are irreversible, and we cannot reverse any transactions on the blockchains. This also means that there is no option for you to cancel or exchange any items once you have accepted the contract and the transfer is completed;
- (h)
there are risks with using the Internet and blockchain technologies or blockchain based products. We are not responsible for any issues associated with hardware, software or Internet connection in the event malicious software is introduced or unauthorised third parties access your Account or Wallet;
- (i)
we are not responsible for any communication failures, disruptions, errors, distortions or delays that you may experience when using our Services or any blockchain or other networks, howsoever caused; and
- (j)
our Services may rely on third party platforms and suppliers. Issues with these third party platforms and suppliers may affect your use of the Services.
Modification of the Services
We may change or update our Website or Services and any content therein without warning to you.
As we grow and develop our Services, we might sometimes need to provide additional terms for a specific service, and such services will be deemed part of the Services and subject of to the Terms. In the event of a conflict between these Terms and the specific terms, the specific terms will prevail for the specific services.
Data Protection
Please see our Privacy Policy (https://fair.xyz/privacy) which forms part of these Terms.
Notices
Any notice you wish to send us under these Terms shall be in writing and may be sent by personal delivery, or pre-paid or recorded delivery at our registered address set out at the beginning of these Terms or by email to [email protected]. Any such notice will be deemed to have been served two business days after the same has been posted if you are sending the notice from the UK, or if by email, on the date of transmission provided that no notice of failure to transmit the email is received.
If we are to provide you with any notice under these Terms, any such notice will be made available on our Website or Services, and/or to your Account, and/or to any email address that you have provided us with in contacting us or sending us a notice. Any such notice will be deemed to have been served when posted on our Website, or your Account, or if by email, on the date of transmission provided that no notice of failure to transmit the email is received.
Non-Waiver of Rights
If either party fails or delays in exercising any of its rights under the Terms, it will not prevent either party from taking any steps against the other party at a later stage; unless any such rights have been waived.
Severability
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.
Non-Assignment
You shall not assign, transfer, novate, charge, sub-contract, create any trust over, or deal in any manner with these Terms or all or any of your rights, interests or obligations under these Terms.
No Partnership
Nothing in these Terms shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between you and us.
No Third Party Rights
A person who is not a party to these Terms shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
Dispute Resolution
If you have a potential claim against us, you shall first, prior to initiating any proceedings, contact us by sending an email to [email protected] (Claim Notice) describing the nature of your claim and provide us with as much information, documentation and evidence we reasonably require for us to assess your claim. If so requested by us, the parties will negotiate in good faith to seek resolution of your claim. In which case, you agree not to bring proceedings against us for at least 60 days from the date of your Claim Notice.
Governing Law and Jurisdiction
These Terms and all non-contractual relationships arising out of or connected to them shall be governed and construed in accordance with English Law.
You submit to the exclusive jurisdiction of the English courts to settle any dispute or claim which may arise under, or in respect of, these Terms, except where by law, such dispute or claim must be brought in the jurisdiction in which you are domiciled, or where the relevant law contains mandatory provisions that override such exclusive jurisdiction.
Amendment to these Terms
We reserve the right to amend these Terms at any time. All amendments to these Terms will be posted online. Continued use of the Services will be deemed to constitute acceptance of the new Terms. If you do not agree with any amendments to our Terms, you must immediately stop using our Services.
