Openfort Terms & Conditions
Last updated: July 13, 2023
This End User Terms of Service Agreement (this “Agreement”) governs your access to and use of certain products, services and properties made available by Alamas Labs Inc., d/b/a Openfort (“Openfort,” “we,” “us” or “our”), a Delaware corporation. Our products, services and properties include, without limitation, our website available at www.openfort.xyz (the “Site”), and the Openfort wallet (the “Wallet”), including related trademarks, software code, and other intellectual property (together, the “Services”).
OPENFORT IS NOT A BROKER, FINANCIAL INSTITUTION OR CREDITOR. OPENFORT FACILITATES TRANSACTIONS OF DIGITAL GOODS ON BEHALF OF USERS IN CONNECTION WITH THE PURCHASE, STORAGE, AND SALE OF SUCH DIGITAL GOODS. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, IF YOU USE THE SERVICE TO PURCHASE AN NFT, THE PLATFORM OR THIRD-PARTY SELLER ORIGINALLY OFFERING SUCH NFT (THE “ORIGINAL OFFEROR”) SHALL BE AN INTENDED THIRD-PARTY BENEFICIARY OF THIS AGREEMENT WITH RESPECT TO ANY SUCH PURCHASE. YOU AGREE THAT OPENFORT SHALL NOT BE A PARTY TO OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR, ARISING OUT OF, RELATING TO, ASSOCIATED WITH OR RESULTING FROM ANY DISPUTES BETWEEN YOU AND ANY ORIGINAL OFFEROR OF AN NFT IN RESPECT OF SUCH NFT OR SUCH NFT BEING CONSIDERED AN INVESTMENT CONTRACT OR ANY INTELLECTUAL PROPERTY OR OTHER RIGHTS EMBODIED THEREBY OR INCLUDED THEREWITH.
YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF DIGITAL GOODS YOU PURCHASE THROUGH THE SERVICE OR ANY CLAIMS MADE BY ANY ORIGINAL OFFEROR OF SUCH DIGITAL GOODS. NOTWITHSTANDING ANYTHING SET FORTH HEREIN OR THROUGH THE SERVICE, OPENFORT MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF DIGITAL GOODS THAT YOU MAY PURCHASE THROUGH THE SERVICE, OR ANY CLAIMS MADE BY ANY ORIGINAL OFFEROR OF SUCH DIGITAL GOODS.
PLEASE READ SECTION 17 OF THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE AGREEING TO MANDATORY INDIVIDUAL ARBITRATION FOR THE RESOLUTION OF DISPUTES AND WAIVING YOUR RIGHT TO A JURY TRIAL ON YOUR CLAIMS.
PLEASE BE AWARE THAT SECTION 3 OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US.
THIS AGREEMENT IS IMPORTANT AND AFFECTS YOUR LEGAL RIGHTS, SO PLEASE READ IT CAREFULLY. BY CLICKING ON ANY “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, PURCHASING ITEMS THROUGH THE SERVICE, AND/OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. If you do not agree to this Agreement, you may not access or use the Service or purchase any digital goods through the Service. For existing users of the Service, you acknowledge and agree that this Agreement is effective beginning on the date on which you first accessed and/or used any Service.
Openfort reserves the right to change or modify this Agreement at any time and in our sole discretion. If we make changes to this Agreement, we will provide notice of such changes, such as by sending an email notification, providing notice through the Service or updating the “Last Updated” date at the beginning of this Agreement. By continuing to access or use the Service at any point after such update, you confirm your acceptance of the revised Agreement and all of the terms incorporated therein by reference. We encourage you to review this Agreement frequently to ensure that you understand the terms and conditions that apply when you access or use the Service. If you do not agree to the revised Agreement, you may not access or use the Service.
1.1 Wallet Creation.
The Wallet is a set of SDKs and APIs that runs on any platform and provides users with access to the endpoints allowing them to execute instructions directly on a variety of Ethereum-compatible blockchain networks (“Supported Blockchain Networks”). The Wallet also allows users to create, authenticate accounts while also providing a view of balances for digital assets that are compatible with the Wallet (“Blockchain Assets”), initiate transfers and transactions involving Blockchain Assets, and potentially other products and games. The Wallet also allows users to access decentralized applications, including, without limitation, games (collectively "Blockchain Games") and engage in certain transactions, including swapping one Blockchain Assets for another Blockchain Asset on a peer-to-peer basis via such third-party protocol (a "Swap") and bridging Blockchain Assets from one Supported Blockchain Network to another (a “Bridge”).
In order to create an Account and open a Wallet, users must provide an email address or a user ID for either a Google, Facebook, Reddit, Discord or Twitch account (collectively “Login Credentials”) to be associated with the Wallet. For our Services, users are at least 13 years old and that if they are between 13 years and 18 years old, their legal guardian has reviewed and agrees to these terms and is happy for them to access and/or use the Services.
1.2 Wallet Access.
Your Wallet is web-based software that is accessible locally on your device. Part of that software is a “private key” system used to secure your Wallet. There are three private keys associated with your Wallet, and two private keys are required to access your Wallet at any given time. One private key is stored locally on your device. Another private key is generated using the Login Credentials you provided to open your Account (“Account”). The third private key is maintained by Openfort. When you log in to your Account/Wallet with your Login Credentials, you access the account using the private key stored on your device and the private key generated in connection with your Login Credentials.
If you lose your device, you may still access your account using your Login Credentials and the private key maintained by Openfort. If you cannot remember your Login Credentials, you may still access your account using your device and the private key maintained by Openfort.
The Wallet allows you to access and transfer your Blockchain Assets. You control the Blockchain Assets accessible through the Wallet at any time. Your ability to access and transfer Blockchain Assets you own exists independently of the Wallet and you may choose to transfer your Blockchain Assets to a different wallet at any time. With respect to the Blockchain Assets accessible through your Wallet, Openfort does not have custody of such assets, and does not have the ability to transfer such assets. Only you have the ability to transfer your Blockchain Assets or initiate other transactions recorded on the blockchain. As such, you acknowledge and assume the risks below regarding the use of the Wallet:
(a) A Wallet may be subject to certain exploits and Openfort is not responsible for any such exploits. While Openfort has taken a number of precautions to ensure the security of the Wallet, the technology is relatively new and it is not possible to guarantee that the code is 100% free from bugs or errors. Users accept all risks that arise from using the Wallet, including, and not limited to, the risk of any funds being lost due to an exploit.
(b) You are solely responsible for securing your Login Credentials and any device you use to access your Wallet. You understand that anyone who obtains your Login Credentials and access to your device may access your Wallet with or without your authorization and may transfer any Blockchain Assets accessible through your Wallet.
(c) The value of any Blockchain Asset, where value is attached to such an asset, may fluctuate. Openfort makes no guarantees as to the price or value of any Blockchain Asset accessible via a Wallet. You acknowledge and accept the risk that your Blockchain Assets, or any Blockchain Assets you may acquire, including by using the Wallet to access and interact with a third-party protocol, may lose some or all of their value and you may suffer loss due to the fluctuation of prices and/or significant price slippage and cost.
(d) The following risks are associated with using Blockchain Assets: the risk of losing private keys, theft resulting from third-parties discovering your private key, value fluctuation on the secondary market, disruptions to the relevant blockchain caused by network congestion, lack of usability of the assets due to a hard fork or other disruption to the relevant blockchain, or errors or vulnerabilities in the smart contract code associated with a given Blockchain Asset or transactions involving Blockchain Assets, including with respect to Transfer, Swap or Bridge transactions. Transfers on the Ethereum and other blockchains are generally irreversible. Once an instruction, signed by the required private key(s), to transfer a Blockchain Asset from one blockchain address to another has been executed, such a transaction cannot be undone.
(e) You are solely responsible for determining the tax implications and tax reporting requirements associated with transactions you engage in involving Blockchain Assets accessible through your Wallet, and for paying any applicable taxes. Openfort is not responsible for determining whether there are tax implications in connection with transactions involving Blockchain Assets accessible through Wallets, for reporting any such transactions, or for paying any applicable taxes.
(f) Openfort may modify or discontinue support for the Wallet at any time. Openfort reserves the right, at any time and without notice, in our sole and absolute discretion, to modify the Wallet.
(g) In the event of a change to an underlying blockchain network, or other network disruption, resulting in a fork of the existing blockchain into one (or more) additional blockchains, the Wallet may not support activity related to any new Blockchain Assets created as a result of the fork. In addition, in the event of a fork, transactions on the network may be disrupted.
You may be charged fees in connection with some of the Openfort Services available to you, including fees related to Swaps, Mints, Onramps or Bridges that you execute accessing third-party games. We reserve the right to change those fees at any time, in our sole and absolute discretion. We will disclose the amount of fees we will charge you for the applicable Openfort Service at the time that you access the Openfort Service.
You may incur charges from third-parties for use of Third-Party Services. For example, you may be charged fees via the protocol that you may access via the Wallet. Third-party fees are not charged by Openfort and are not paid to Openfort. Under no circumstances shall Openfort incur any liability, of any kind, to you arising from or relating to fees charged to you by Third-Party Services linked to or accessed through the Openfort Services.
Although we will attempt to provide accurate fee information, any such information reflects our estimate of fees, which may vary from the fees actually paid to use the Openfort Services and interact with the relevant blockchain. Digital asset pricing information may be higher or lower than prices available on platforms providing similar services.
In connection with each Swap, you understand and agree that swap rates and digital asset prices displayed are estimates only that are provided using third-party data feeds, and that they may change at any time. Accordingly, the swap rates or digital asset prices displayed via the Openfort Services, including on the Swap interface, are estimates only and may be inaccurate. Openfort is not liable for, and you hereby forever release Openfort from, any losses or claims arising out of inaccurate estimates of swap rates or digital asset prices displayed via the Openfort Services.
Each Supported Blockchain Network charges a fee for engaging in a transaction on the network. Those network transaction fees fluctuate over time depending on a variety of factors. You are solely responsible for paying network transaction fees associated with transactions you engage in on each blockchain network using the Wallet. You are also solely responsible for any other third-party fees that may be incurred in connection with your use of the Wallet.
1.4 Third-Party Services.
The Openfort Services may contain links or otherwise provide access to Third-Party Services (including, without limitation, games), and such Third-Party Services may enable certain features, such as Swaps and Bridges. When using a game or other Third-Party Services, you understand that you are at no time transferring your assets to us. Openfort provides access to Third-Party Services as a convenience. Openfort does not have control over the content provided by Third-Party Services, does not warrant or endorse any Third-Party Service, and is not responsible for the availability or legitimacy of, the content, products or services on or accessible from those Third-Party Services (including any related website, resources or links displayed therein). We make no warranties or representations, express or implied, about such linked Third-Party Services, the third-parties they are owned and operated by, the information contained on them or the suitability of their products or services. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party website, applications, or resources.
1.5 Other Disclaimers.
Openfort does not operate a Blockchain Asset exchange platform or offer trade execution or clearing services and, therefore, has no oversight, involvement, or control concerning your transactions using the Openfort Services. All transactions between users of Openfort Services are executed peer-to-peer directly between the users' Ethereum (or other network) addresses through third-party smart contracts. You are responsible for complying with all laws that may be applicable to or govern your use of the Openfort Services.
You understand that Openfort is not registered or licensed by the Securities and Exchange Commission ("SEC"), or any financial regulatory authority in the United States or any other jurisdiction. No financial regulatory authority has reviewed or approved the use of the Openfort Services. The Openfort Services do not constitute advice or a recommendation concerning any commodity, security, or other Blockchain Asset or instrument. Openfort is not acting as an investment adviser or commodity trading adviser to any person or entity. Openfort does not make any representations or warranties as to the functionality of any Supported Blockchain Network, or that any Supported Blockchain Network will operate free from interruptions, delays, defects and/or errors that may delay, hinder or prevent the transmission of transactions or messages to or on such Supported Blockchain Network. The Openfort Services rely on emerging technologies, such as the Ethereum network.
2. Acceptable Use Policy
You agree that you are solely responsible for your conduct while participating in the purchase or sale of NFTs or otherwise accessing or using the Service. You agree that you will abide by this Agreement and will not:
For the avoidance of doubt, you represent and warrant that the NFTs you purchase, sell or otherwise use through our the Service are pure “utility” in nature, and bear no resemblance to a security as may currently be defined by law or regulation, in neither form nor function; specifically, the transactions to be performed through the Service will not constitute an “investment contract”, and thus they would fail the “Howey Test” as set forth in SEC v. W.J. Howey Co, 328 U.S. 293 (1946) so that the NFTs are not considered securities under any circumstances.
3. Website Terms
3.1 Access to the Website.
(a) License. Subject to these Openfort User Terms, Openfort grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Websites for your own personal and non-commercial use.
(b) Certain Restrictions. The rights granted to you in these Openfort User Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Websites, whether in whole or in part, or any content displayed on the Websites; (b) you shall not (directly or indirectly) modify, decipher, disassemble, reverse compile or reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Openfort Services; (c) you shall not access the Websites in order to build a similar or competitive website, product, or service; (d) you shall not translate, or otherwise create derivative works, adaptations, translations or compilations of any part of the Openfort Services; (e) you shall not rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder; (f) you shall not frame or mirror any part of the Websites without Openfort’s express prior written consent; (g) you shall not create a database by systematically downloading and storing content related to the Openfort Services; (h) you shall not use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, harvest, index, “scrape,” “data mine” or in any way gather content related to the Openfort Services or reproduce or circumvent the navigational structure or presentation of the Openfort Services without Openfort’s express prior written consent; and (i) except as expressly stated herein, no part of the Websites may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Websites shall be subject to these Openfort User Terms. All copyright and other proprietary notices on the Websites (or on any content displayed on the Websites) must be retained on all copies thereof.
(c) Modification of the Websites. Openfort reserves the right, at any time, to modify, suspend, or discontinue the Websites (in whole or in part) with or without notice to you. You agree that Openfort will not be liable to you or to any third-party for any modification, suspension, or discontinuation of the Websites or any part thereof.
(d) No Support or Maintenance. You acknowledge and agree that Openfort will have no obligation to provide you with any support or maintenance in connection with the Websites, unless specifically contracted for under a separate agreement.
(e) Ownership. Excluding any User Content that you may provide, you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Websites and their content are owned by Openfort. Neither these Openfort User Terms nor your access to the Websites transfers to you or any third-party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in these Openfort User Terms. Openfort reserves all rights not granted in these Openfort User Terms. There are no implied licenses granted under these Openfort User Terms.
3.2 Accuracy of Information. We attempt to ensure that the information that we provide on the Websites is complete, accurate and current. Despite our efforts, the information on Websites may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or correctness of any information on any Website.
THE SERVICE AND CONTENT CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. OPENFORT (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT 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. OPENFORT 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 AS TO THE SERVICE OR ANY CONTENT CONTAINED THEREIN. OPENFORT DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. WE 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 OPENFORT ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT SAFE, OPENFORT CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, OR ANY NFT LISTED ON OUR SERVICE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU SUSTAIN AS A RESULT OF YOUR USE OF THE SERVICE. WE TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF ITEMS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED DIGITAL WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR ITEMS.
OPENFORT DOES NOT ENDORSE ANY OTHER THIRD-PARTY AND SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY TRANSACTIONS YOU ENTER INTO WITH OTHER USERS. YOU AGREE THAT OPENFORT WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGES OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS BETWEEN YOU AND OTHER USERS.
Openfort is not responsible for any losses or harms sustained by you due to vulnerability or any kind of failure, abnormal behavior of software (e.g., smart contract), blockchains, or any other features of or inherent to the NFTs. Openfort is not responsible for casualties due to any delay or failure to report any issues with any blockchain supporting NFTs, including without limitation forks, technical node issues, or any other issues that result in losses of any sort.
Nothing in this Agreement shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded under the laws applicable to your jurisdiction. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
5. Term and Termination
These Openfort User Terms will remain in full force and effect while you use the Openfort Services. We may suspend or terminate your rights to use the Openfort Services at any time for any reason at our sole discretion, including for any use of the Openfort Services in violation of these Openfort User Terms. Upon termination of your rights under these Openfort User Terms, your right to access and use the Openfort Services will terminate immediately. You understand that any termination of your rights may involve removal of your User Content from our live databases. Openfort will not have any liability whatsoever to you for any termination of your rights under these Openfort User Terms, including for deleting your account or blacklisting any network address you provide to us. Even after your rights under these Openfort User Terms are terminated, the following provisions of these Openfort User Terms will remain in effect: Section 4, Section 6, Section 7, Section 8, and Section 11.
You agree to indemnify and hold Openfort (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third-party due to or arising out of: (i) your use of the Openfort Services; (ii) your violation of these Openfort User Terms; (iii) your violation of applicable laws or regulations; (iv) your User Content; or (v) Third-Party Services. Openfort reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Openfort. Openfort will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
7. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL OPENFORT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY LOST PROFITS, LOST DATA, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF YOUR USE OF THE OPENFORT SERVICES, EVEN IF OPENFORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. OPENFORT SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO SOFTWARE, PRODUCTS, SERVICES, AND/OR INFORMATION OFFERED OR PROVIDED BY THIRD-PARTIES AND ACCESSED THROUGH THE OPENFORT SERVICES.
OPENFORT SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR FAILURE TO KEEP YOUR PRIVATE KEYS OR LOGIN CREDENTIALS TO YOUR WALLET SECURE OR ANY OTHER UNAUTHORIZED ACCESS TO OR TRANSACTIONS INVOLVING YOUR WALLET.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
8. Dispute Resolution
Please read the arbitration agreement in this Section (“Arbitration Agreement”) carefully. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Service, to any products sold or distributed through the Service, to any NFTs, or to any aspect of your relationship with Openfort, will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims or seek relief in small claims court if your claims qualify; and (ii) you or Openfort may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to us at firstname.lastname@example.org. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief 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 procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Openfort will pay them for you. In addition, we will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND OPENFORT 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 we are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.a (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement 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 or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to email@example.com within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Severability. Except as provided in Section 17.e (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with us.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing us at firstname.lastname@example.org and expressly opting out of this Arbitration Agreement.
EU Users. In addition to the above, if you are a user accessing or using our services from within the European Union, pursuant to Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (i.e. the Digital Services Act or “DSA”), the following applies: we will endeavor to resolve any complaint or dispute you may have with us in relation to our services through our internal complaint-handling system. If we are unable to resolve the complaint or dispute to your satisfaction, you have the right to seek to resolve the dispute through an alternative dispute resolution (ADR) procedure, facilitated by an EU-approved ADR provider. Further, you may be eligible to use the European Online Dispute Resolution (ODR) platform, available at http://ec.europa.eu/consumers/odr/, to resolve any dispute with us. The use of an ADR or the ODR platform does not prohibit you from pursuing legal remedies in your local jurisdiction.
9. Electronic Communications.
The communications between you and Openfort use electronic means, whether you use the Openfort Services or send us emails, or whether Openfort posts notices on the Openfort Services or communicates with you via email. For contractual purposes, you: (i) consent to receive communications from Openfort in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Openfort provides to you electronically satisfy any legal requirement as if they were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
We reserve the right in our sole discretion to modify, suspend, or discontinue the Service, or any features or parts thereof, whether temporarily or permanently, at any time with or without notice to you in our sole discretion. this Agreement, and your access to and use of the Service, shall be governed by and construed and enforced in accordance with the laws of New York, without regard to any conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of New York, New York. Notwithstanding anything contained in this Agreement, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Service 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 to us, to the fullest extent permitted by applicable law. Whenever the word “including” or any derivative thereof is used herein, it shall be construed as if followed by the phrase “without limitation.” If any term, clause or provision of this Agreement is held invalid or unenforceable, then that term, clause or provision will be severable from this Agreement 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 this Agreement. Your relationship to Openfort is that of an independent contractor, and neither party is an agent or partner of the other. this Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Openfort. Openfort’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Except as otherwise provided herein, this Agreement are intended solely for the benefit of Openfort and you and are not intended to confer third party beneficiary rights upon any other person or entity.
11. Contact Information. You may contact us at any time regarding these Openfort User Terms at email@example.com.