Powering the Fimi NFT Marketplace Learn More
This Terms and Conditions of Use (“Terms”), and all policies and additional terms posted on and in our sites, applications, tools and services (collectively “Services”) set out the terms on which Fimi Market, Inc./Fimi NFT Marketplace (“Fimi”) offers you access to and use of our Services. You can find an overview of our policies. All policies and additional terms posted on and in our Services are incorporated into this User Agreement. You agree to comply with all terms of this User Agreement when accessing or using our Services.
The entity you are contracting with is: Fimi Market Inc., 251 Little Falls Drive, Wilmington, DE 19808, USA.
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see “Disclaimer of Warranties; Limitation of Liability” and “Legal Disputes” provisions below). It also contains an Agreement to Arbitrate which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes, Section B, “Agreement to Arbitrate”). If you do not opt out: (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
Fimi is a NFT marketplace that allows users to offer, sell and buy non-fungible tokens (“NFTs”). Fimi is not a party to contracts for sale between third-party sellers and buyers, nor is Fimi a traditional auctioneer.
Fimi is a platform. We are not a broker, financial institution, or creditor. The Services are an administrative platform only. Fimi facilitates transactions between the buyer and seller in the auction but is not a party to any agreement between the buyer and seller of crypto assets or between any users.
Any guidance Fimi provides as part of our Services, such as pricing, listing, and sourcing etc. is solely informational and you may decide to follow it or not. Unless otherwise expressly provided, Fimi has no control over and does not guarantee: the existence, quality, safety or legality (copyright, trademark or otherwise) of items advertised; the truth or accuracy of users’ content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction.
You will need to register for an Account prior to using the Services. By creating an Account, you agree to (a) provide accurate, current and complete Account information about yourself, (b) maintain and promptly update from time to time as necessary your Account information, (c) maintain the security of your password and accept all risks of unauthorized access to your Account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Service, or your Account. Fimi may block multiple accounts found to be associated with the same user.
In connection with using or accessing our Services you agree to comply with this User Agreement, our policies, our terms, and all applicable laws, rules, and regulations, and you will not:
- breach or circumvent any laws, regulations, third-party rights or our systems, Services, policies, or determinations of your account status;
- use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our Services, or are a person with whom transactions are prohibited under economic or trade sanctions;
- fail to pay for items purchased by you, unless you have a valid reason as set out in an Fimi policy, for example, the seller has materially changed the item’s description after you bid;
- fail to deliver items sold by you, unless you have a valid reason as set out in a Fimi policy;
- manipulate the price of any item or interfere with any other user’s listings;
- engage in or knowingly facilitate any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities;
- take any action that may undermine the feedback or ratings systems;
- transfer your Fimi account (including feedback) and user ID to another party without our consent;
- post false, inaccurate, misleading, deceptive, defamatory, libelous, or pornographic content;
- distribute viruses or any other technologies that may harm Fimi or the interests or property of users;
- use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with the prior express permission of Fimi;
- circumvent any technical measures used to provide our Services;
- interfere with the functioning of our Services, such as by imposing an unreasonable or disproportionately large load on our infrastructure;
- log in or try to log in to access the Service through unauthorized third party applications or clients;
- export or re-export any Fimi application or tool, except in compliance with the export control laws, and rules and policies of any relevant jurisdictions;
- infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to Fimi. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Fimi or someone else;
- create another account if we have disabled one you had unless you have our written permission first;
- infringe any Intellectual Property Rights that belong to third parties affected by your use of our Services or post content that does not belong to you;
- buy, sell, rent or lease access to your Account or username;
- commercialize any Fimi application or any information, data or software associated with such application, except with the prior express permission of Fimi; or
- harvest or otherwise collect or use information about users without their consent;
- transact in securities, commodities futures, trading of commodities on a leveraged, margined or financed basis, binary options (including prediction-market transactions), real estate or real estate leases, equipment leases, debt financings, equity financings or other similar transactions.
If we believe you are engaging in any action, designed to encourage or facilitate a transaction outside of Fimi, with a user on Fimi, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user Account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
If we believe you are engaging in any action, designed to encourage or facilitate a transaction outside of Fimi, with a user on Fimi, you may be subject to a range of actions, including limits on your buying and selling privileges, restrictions on listings and account features, suspension of your account, application of fees, and recovery of expenses for policy monitoring and enforcement.
We may cancel unconfirmed accounts or accounts that have been inactive for a substantial period of time. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion.
When a buyer or seller issue arises, we may consider the user’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers. The foregoing does not limit or impair our right to refuse, modify, or terminate all or part of our Services to anyone, or to terminate this agreement with anyone, for any reason at our discretion.
Fimi shall have the right, but not the obligation, to monitor the content of NFTs on its platform to determine compliance with this policy and any operating rules established by Fimi and to satisfy any law, regulation or authorized government request. Fimi shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted through its platform. Without limiting the foregoing, Fimi shall have the right to remove any material that Fimi, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
Fees and Taxes
Creating, buying, selling or transferring NFTs may subject you to fees, commissions etc. (“Fees”) established from periodically at the sole discretion of Fimi, a Collection creator, or by the blockchain. The fees we charge for using our Services are listed in the FAQs. We may change our selling fees from time to time by posting the changes on the Fimi site fourteen (14) days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.
Fees include but are not limited to: (a) service fees established by and payable to Fimi; (b) commissions on secondary sales of NFTs, established by and payable to the creators of such NFTs; and (c) “gas” fees (fees paid to blockchain validator through Users’ independent wallet applications as consideration for validating the Users’ transactions). Service fees may be adjusted from time to time at the sole discretion of Fimi. “Gas” fees are defined by the blockchain and based on market conditions.
Fees may be paid or are payable solely in the manner determined at the sole discretion of Fimi.
In any jurisdiction where Fimi has an obligation to collect sales taxes on sales you make using our Services, we may collect such sales taxes from you via the payment method on file.
Selling fees do not purchase exclusive rights to item exposure on our Services. We may display third-party advertisements (including links and references thereto) or other content in any part of our Services, including your listing, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, sellers.
ALL TRANSACTIONS ARE FINAL. ALL FEES RELATING TO ANY TRANSACTION ARE NON-REFUNDABLE EXCEPT AT THE SOLE DISCRETION OF FIMI (FOR SERVICE FEES AND OTHER FEES WITHIN ITS CONTROL).
When listing an item for sale on our Services, you agree that:
- You assume full responsibility for the item offered and the accuracy and content of the listing,
- Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). Fimi cannot guarantee exact listing duration,
- The content does not infringe third-party rights and the content follows our policy on offensive materials,
- Content that violates any of Fimi’s policies may be modified, obfuscated or deleted at Fimi’s sole discretion,
- We may revise product data associated with listings to supplement, remove, or correct information,
- We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
- Buyer’s location, search query, browsing site, and history;
- Item’s listing format, price, terms of service, end time, history, and relevance to the user query;
- Seller’s history, including listing practices, Seller Rating/Popularity, Fimi policy compliance, feedback; and,
- number of listings matching the buyer’s query,
- To drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer,
- Some advanced listing upgrades will only be visible on some of our Services,
- Metatags and URL links that are included in a listing may be removed or altered,
- We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and/or current listings; results may vary for individual listings. To drive the recommendations experience, you agree that we may display the sales and performance history of your individual listings to other sellers,
- You will not sell and will promptly remove all listings for any content that is prohibited by law or regulation. Fimi has no responsibility or liability for the safety or performance of any product that you list or sell using our Services. You are solely responsible for any non-conformity or defect in, or compliance with any public or private challenge to content you list or sell using our Services,
- Fimi may publish and promote your listings, including related content such as username, content reviews and feedback on the websites or in the applications, services and tools of other Fimi Market Inc. corporate family members or cooperating third-party operators of websites, applications, services and tools.
When buying an item using our Services, you agree that:
- You are responsible for reading the full item listing before making a bid or offer, buying, or committing to buy,
- You enter into a legally binding contract to purchase an item when you buy, commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted),
- We do not transfer legal ownership of items from the seller to you,
- Utah Code Annotated § 70A-2-401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the buyer and the seller, unless the buyer and the seller agree otherwise.
International Buying and Selling;
Given the nature of Fimi's global marketplace, listings may be viewed and purchased by, and transferred to, buyers around the world. Many of our Services are accessible internationally. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and transfer of items.
When you provide content using our Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights you have in that content in connection with our provision, expansion, and promotion of our Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights in that content against Fimi, our assignees, our sublicensees, and their assignees in connection with our, those assignees’, and those sublicensees’ use of that content in connection with our provision, expansion, and promotion of our Services.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. Fimi takes no responsibility and assumes no liability for any content provided by you or any third party.
We offer product data (including images, descriptions and specifications) that are provided by third parties (including Fimi users). You may use that content solely in your Fimi listings. Fimi may modify or revoke that permission at any time in our sole discretion. The product data includes copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings).
We try to offer reliable product data, but cannot promise that the content provided through our Services will always be available, accurate, complete, and up-to-date. You agree that Fimi is not responsible for examining or warranting the listings or content provided by third parties through our Services, and that you will not attempt to hold us or our data providers liable for inaccuracies.
All content on Fimi is created by Users. Fimi makes no representations or warranties as to the quality, origin, or ownership of any content found on its platform. Fimi shall not be liable for any errors, misrepresentations, or omissions in, of, and about, the content, nor for the availability of the content. Fimi shall not be liable for any losses, injuries, or damages from the purchase, inability to purchase, display, or use of content.
The name “Fimi” and other Fimi marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of Fimi in the U.S. and other countries. They may not be used without the express written prior permission of Fimi.
Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act (“DMCA”). Fimi’s DMCA program works to ensure that items and content using our Services do not infringe upon the copyright, trademark, or certain other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify our DMCA team and we will investigate. https://fimi.market/contact.
For Fimi to respond, the complaint must provide the following information:
- a physical or electronic signature of the copyright owner or of a person authorized to act on behalf of the copyright owner;
- a clear identification of the copyrighted work that is claimed to be infringed upon;
- identification of the online material that is claimed to be infringing, including a URL representing a link to the material on Fimi NFT Marketplace;
- information sufficient to permit Fimi to contact the complainant (email address, physical address, and/or telephone number);
- a statement that the complainant has a good-faith belief that the relevant material is being used in a way that is not authorized by the copyright owner, its agent, or under any applicable law; and
- a statement, made under penalty of perjury, that the above information is accurate, and the complainant is the copyright owner or is authorized to act on behalf of the copyright owner.
Submission of Takedown Requests. Users may submit their takedown requests using the following contact information:
Email: [email protected] Physical address: 16701 Melford Blvd, Suite 400, Bowie, MD 20715
- the User’s name, address, telephone number, and email address;
- a description of the material that was removed, along with the URL where the content was posted on Fimi prior to its removal;
- the following statement: “I swear, Under Penalty Of Perjury, that I have a good-faith belief that the material was removed or disabled due to a mistake or misidentification of the material to be removed or disabled”;
- a statement that the User consents to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if the User’s address is outside of the United States, any jurisdiction in which the User may be properly served, and that the User will accept service of process from the person (or their agent) who filed the original DMCA notice; and
- the User’s electronic or physical signature.
Upon receipt of a valid counter notification, Fimi will forward it to the party who submitted the original DMCA notification. The original party (or their representative) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If Fimi does not receive any such notification within 10 days, Fimi may restore the material.
Repeat Infringers. Fimi reserves the right to terminate the accounts or block usage of its platform to any party who is a repeat infringer or who is repeatedly charged with infringement.
Authorization to Contact You; Recording Calls; Analyzing Message Content
Fimi may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Fimi or its agents for quality control and training purposes, or for its own protection.
Fimi’s automated systems scan and analyze the contents of every message sent through its messages platform, including messages between users, to detect and prevent fraudulent activity or violations of Fimi’s User Agreement, including the incorporated terms, notices, rules, and policies. This may result in a manual review of messages sent through our messaging tools. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. Fimi may store message contents, including to conduct this scanning and analysis.
Privacy of Others; Marketing
If Fimi provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose or distribute a user’s information to a third party for purposes unrelated to our Services. Additionally, you may only send marketing communications to users who have consented to receive them in accordance with applicable laws, and only using Fimi Services.
Cancellations for sellers
Sellers can cancel orders and issue refunds under certain circumstances; such as, a dispute in accordance with section ten (10) above. When a transaction is cancelled after payment has been completed, Fimi may issue a refund to the buyer on the seller’s behalf and charge the seller for the amount of the refund.
Additionally, Fimi may charge sellers other reasonable fees from sellers when the item is not as described in the listing.
Returns and cancellations for buyers
Buyers generally do not have the right to cancel an order. Buyers can request to cancel an order on Fimi within the five (5) days of purchase, and the seller will have 3 days to accept or decline the request.
Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in Fimi’s applications may not occur in real time. Such functionality is subject to delays beyond Fimi’s control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
Fimi has no responsibility for the NFTs created or traded by Users on its Platform. Fimi does not investigate and cannot guarantee or warrant the authenticity, originality, uniqueness, marketability, legality or value of any NFT created or traded by Users on Fimi.
All information provided by or on behalf of Fimi is for informational purposes only and should not be construed as professional, accounting or legal advice. Users should not take or should refrain from taking any action in reliance on any information contained in this Policy or provided by or on behalf of Fimi. Before Users make any financial, legal, or other decisions involving any NFT/NFT Collection, Users should seek independent professional advice from persons licensed and qualified in the area for which such advice would be appropriate.
In addition, to the extent permitted by applicable law, in no event will Fimi (including our subsidiaries, and affiliates, and our and their officers, directors, agents and employees) be liable to you or any third party under any claim at law or in equity for any consequential damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages), and all such damages or losses are expressly excluded by this agreement whether or not they were foreseeable or Fimi was advised of such damages or losses. Without limiting the generality of the foregoing, we (including our subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
- the content you provide (directly or indirectly) using our Services;
- your use of or your inability to use our Services;
- pricing, transfer, format, or other guidance provided by Fimi;
- delays or disruptions in our Services;
- viruses or other malicious software obtained by accessing or linking to our Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Services;
- damage to your hardware device from the use of any Fimi Service;
- the content, actions, or inactions of third parties, including items listed using our Services;
- a suspension or other action taken with respect to your account or breach of the Using Fimi Section above;
- the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
- your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) any amounts up to the price the item sold for on Fimi (including any applicable sales tax) and its original transfer costs, (b) the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability, or (c) $100.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of our Services or your breach of any law or the rights of a third party.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND FIMI HAVE AGAINST EACH OTHER ARE RESOLVED.
In this Legal Disputes Section, the term “related third parties” includes your and Fimi’s respective affiliates, subsidiaries, predecessors, successors, assigns, as well as your, Fimi’s, and these entities’ respective employees and agents.
You and Fimi agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Fimi (or any related third parties) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of Fimi or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Delaware without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and Fimi, except as otherwise stated in this User Agreement.
Agreement to Arbitrate
You and Fimi each agree that any and all disputes or claims that have arisen, or may arise, between you and Fimi (or any related third parties) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to our Services, the actions of Fimi or its agents, or any products or services sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court.
Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act (“FAA”), and to the extent not inconsistent with the FAA, the laws of the State of Delaware, without regard to principles of conflict of laws, governs the interpretation and enforcement of this Agreement to Arbitrate.
- Prohibition of Class and Representative Actions and Non-Individualized Relief YOU AND FIMI AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND FIMI AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim or a particular request for a remedy (such as a request for injunctive relief), then that claim or that remedy request (and only that claim or that remedy request) must be severed from the arbitration and may be brought in court (pursuant to Section 17.C below), subject to your and Fimi’s right to appeal the court’s decision. All other claims will be arbitrated.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individualized basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be administered by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules and the AAA’s Commercial Arbitration Rules, and the AAA’s International Centre for Dispute Resolution Rules (as applicable), as modified by this Agreement to Arbitrate. Absent agreement of the parties, the AAA shall decide which AAA rules apply to the arbitration. The AAA’s rules are available at www.adr.org and www.icdr.org If the AAA is unavailable to administer the arbitration, another administrator will be selected by the parties or, if the parties cannot reach the agreement, the court (pursuant to Section 17.C below) shall select the administrator.
A party who intends to seek arbitration must first send to the other, by certified mail, a valid Notice of Dispute (“Notice”). The Notice must, at a minimum, contain any relevant user name(s), a physical address, contact number, and email address. The Notice to Fimi must be sent to Fimi Market Inc., Attn: Litigation Re: Notice of Dispute, 16701 Melford Blvd, Suite 400, Bowie, MD 20715. Fimi will send any Notice to you to the physical address we have on file associated with your Fimi account—if any; it is your responsibility to keep your physical address up to date. To be valid, you must personally sign the Notice and provide all relevant information, including a description of the nature and basis of the claims you are asserting, the specific relief sought, and the email address and phone number associated with your account.
If you and Fimi are unable to resolve the claims described in a valid Notice within 30 days after Fimi receives that Notice, you or Fimi may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Fimi at the following address: Fimi Market, Inc. 16701 Melford Blvd, Suite 400, Bowie, MD 20715. In the event Fimi initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Fimi account. Any settlement offer made by you or Fimi shall not be disclosed to the arbitrator.
If you are a resident of the United States, then the arbitration hearing shall be held in a county in Delaware or Maryland or at another mutually agreed location. If you are not a resident of the United States, then the arbitration hearing will be held in Wilmington, DE, Bowie, MD, United States, or another mutually agreed location. Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Fimi may attend by telephone, unless the arbitrator requires otherwise. The language of the arbitration will be English.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users but is bound by rulings in prior arbitrations involving the same Fimi user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Fimi for all fees associated with the arbitration paid by Fimi.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE ("OPT-OUT") BY MAILING US A WRITTEN OPT-OUT NOTICE ("OPT-OUT NOTICE"). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO FIMI MARKET INC., ATTN: LITIGATION, RE: OPT-OUT NOTICE, 16701 Melford Blvd, Suite 400, Bowie, MD 20715.
Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Fimi prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Fimi. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.fimi.market at least 30 days before the effective date of the amendments and by providing notice through the Fimi Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
Judicial Forum for Legal Disputes
All claims or disputes that are not subject to the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate and all matters brought pursuant to and in aid of the Agreement to Arbitrate will be resolved exclusively by a state or federal court located in Wilmington, Delaware. You and Fimi agree to submit to the personal jurisdiction of the courts located within Wilmington, Delaware for the purpose of litigating all such claims, disputes, or matters.
Certain Uses and Risks of Blockchain Technology.
- Use of Blockchain Technology. Fimi utilizes experimental cryptographic technologies and blockchain technologies, including tokens, cryptocurrencies, stablecoins, “smart contracts,” consensus algorithms, voting systems and distributed, decentralized or peer-to-peer networks or systems in operating its Services. Each User acknowledges and agrees that such technologies are novel, experimental, and speculative, and that therefore there is significant uncertainty regarding the operation and effects and risks thereof and the application of existing law thereto.
- Certain Risks of Blockchain Technology. The technology utilized in delivering the Services depends on public peer-to-peer networks such as Stellar that are not under the control or influence of Fimi and are subject to many risks and uncertainties. Such technologies include systems which Fimi may have limited or no ability to change, other than ceasing to support certain “smart contracts” and adding support for new “smart contracts”. Users are solely responsible for the safekeeping of the private key associated with the blockchain address used to participate in the Services. Fimi will not be able to restore or issue any refund in respect of any NFT, Cryptocurrency etc. due to lost private keys. If a User is not able to spend or use a NFT or cryptocurrency due to loss or theft of the corresponding private key or otherwise, a User will be unable to exercise their rights with respect to such.
- Certain Risks of Smart Contract Technology. Digital assets relevant to Systems depend on the smart contracts deployed to Blockchains, some of which may be coded or deployed by persons other than Fimi. Once deployed to those blockchains, the code of smart contracts cannot be modified. In the event that the smart contracts are adversely affected by malfunctions, bugs, defects, malfunctions, hacking, theft, attacks, negligent coding or design choices, or changes to the protocol rules of any blockchain, Users may be exposed to a risk of total loss and forfeiture of all NFTs and other relevant digital assets. Fimi assumes no liability or responsibility for any of the foregoing matters, except as otherwise expressly provided herein or required by applicable law.
- Asset Prices. The fiat-denominated prices and value in public markets of digital assets, such as NFTs have historically been subject to dramatic fluctuations and are highly volatile. As relatively new products and technologies, blockchain-based assets are not widely accepted as a means of payment for goods and services. A significant portion of demand for these assets is generated by speculators and investors seeking to profit from the short- or long-term holding of blockchain assets. The market value of any blockchain based digital asset may decline below the price for which a User acquires such asset. User acknowledges and agrees that the costs and speeds of transacting with cryptographic and blockchain-based systems are variable and may increase or decrease dramatically at any time, resulting in prolonged inability to access or use any digital assets associated with the Services.
- Regulatory Uncertainty. Blockchain technologies and digital assets are subject to many legal and regulatory uncertainties, and the Services (and its offerings) could be adversely impacted by one or more regulatory or legal inquiries, actions, suits, investigations, claims, fines or judgments, which could impede or limit the ability of User to continue the use and enjoyment of such assets and technologies.
Fimi shall not incur any liability or penalty for not performing any act or fulfilling any duty or obligation hereunder or in connection with the matters contemplated hereby by reason of any occurrence that is not within its control (including any provision of any present or future law or regulation or any act of any governmental authority, any act of God or war or terrorism, any epidemic or pandemic, or the unavailability, disruption or malfunction of the Internet, the World Wide Web or any other electronic network, blockchain or any aspect thereof, or any consensus attack, or hack, or denial-of-service or other attack on the foregoing or any aspect thereof, or on the other software, networks and infrastructure that enables Fimi to provide the Services.), it being understood that Fimi shall use commercially reasonable efforts, consistent with accepted practices in the industries in which Fimi operates, as applicable, to resume performance as soon as reasonably practicable under the circumstances.
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice on www.fimi.market.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.fimi.market. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you with 30 days’ notice by posting the amended terms. Additionally, we will notify you through the Fimi Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and a Fimi representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
Without limiting Fimi’s ability to refuse, modify, or terminate all or part of our Services, Fimi may also terminate this Agreement with anyone at any time for any reason, at our sole discretion, by giving notice of such termination.
The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the Fimi Service.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and Fimi, and supersede all prior understandings and agreements of the parties.
All Sections survive any termination of this User Agreement.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Rules of Interpretation
- “hereof,” “herein,” “hereunder,” “hereby” and words of similar import will, unless otherwise stated, be construed to refer to these Terms as a whole and not to any particular provision of these Terms;
- “include(s)” and “including” shall be construed to be followed by the words “without limitation”;
- “or” shall be construed to be the “inclusive or” rather than “exclusive or” unless the context requires otherwise;
- ) any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of these Terms/Policy/Language;
- section titles, captions and headings are for convenience of reference only and have no legal or contractual effect.;
- whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders; and
- except as otherwise indicated, all references in these Terms to “Sections,” “clauses,” etc., are intended to refer to Sections of Sections, clauses, etc. of these Terms.