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FUNGI Terms of Service

Effective: January 1, 2022

Last Updated: January 1, 2022

Welcome to FUNGI

If you have any questions, would like to provide feedback, or would like more information about FUNGI, please feel free to contact our support team (support@fun.gi) below.

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Introduction

FUNGI is an NFT marketplace operating on the Ethereum blockchain. Collectors may trade, transfer, sell, or display their collected works on the FUNGI platform.

Please read these Terms of Use ("Terms", "Terms of Use", or "Agreement") very carefully. This Agreement is between you (the "User(s)," "Artist(s)," "Collector(s)," "Owner(s)," and collectively with others using the site - ("Users") and Fungi Labs Oy ("FUNGI LABS"), a company operating the FUNGI platform ("we," "us" or "our"). Fungi Labs Oy is located in Finland and organized under the laws of Finland.

These Terms set forth a legally binding agreement and govern your use of the website located at www.fun.gi and all related tools, mobile applications, web applications, decentralized applications, smart contracts, and APIs located at any of the websites of FUNGI LABS, including without limitation, successor website(s) or application(s) thereto (the "Platform", "FUNGI" or "FUNGI platform").

By accessing or using the FUNGI platform, site, services, or smart contracts you are accepting these terms (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement (on behalf of yourself or the entity that you represent).

If you do not agree with all of the provisions of these Terms, you are prohibited from accessing, using, or transacting on the site or FUNGI platform.

Privacy Notice

Our Privacy Notice describes how we collect, use, store and disclose your personal information, and is hereby incorporated by this reference into these Terms.

You agree to the collection, use, storage, and disclosure of your data in accordance with our Privacy Notice.

Service

We are a platform. We are not sellers, buyers or creators. We are not a broker, financial institution, or creditor. We are a platform, doing purely platform things, such as facilitating transactions.

These Terms of Use govern your access to and use of the FUNGI platform, including without limitation the creation, purchase, sale, exchange, or modification of certain digital assets; our online and/or mobile services, and software provided on or in connection with those services (collectively, the "Service").

The Service allows you to sell and purchase Crypto Assets (as defined below) via auction ("Auction") or by other means as set out in the FUNGI platform. You may only participate in the Auction or other sales by linking your digital wallets on supported bridge extensions such as MetaMask (https://metamask.io/).

"Crypto Assets" refers to unique non-fungible tokens, implemented on the Ethereum blockchain using smart contracts. MetaMask is an electronic wallet, which allows you to purchase, store, and engage in transactions using Ethereum cryptocurrency.

FUNGI platform facilitates transactions between the buyer and seller in the Auction. FUNGI or FUNGI LABS is not a party to any agreement between the buyer and seller of Crypto Assets or between any users.

All transactions initiated through FUNGI platform are facilitated and run by third-party electronic wallet extensions, and by using the Services, you agree that you are governed by the terms of service and privacy policies for the applicable extensions.

We have no control over any external sites. You acknowledge and agree that we are not responsible for the availability of any external sites and that we do not endorse any advertising, products, or other materials on or made available from any external sites.

You bear full responsibility for verifying the identity, legitimacy, and authenticity of assets you purchase on the FUNGI platform. Notwithstanding indicators and messages that suggest verification, we make no claims about the identity, legitimacy, or authenticity of assets on the FUNGI platform.

Users are responsible for paying all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority, associated with the use of the FUNGI platform (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, sale, or creation of any works).

Account Registration and Security

You need to register an account before selling or purchasing anything or participating in an Auction. We require all users to be 18 years old or older.

If you wish to participate in an Auction for Crypto Assets, you will need to register for an account on the Service ("Account").

By creating an Account, you agree to:

 

  • provide accurate, current and complete Account information about yourself,

  • maintain and promptly update from time to time as necessary your account information,

  • maintain the security of your password and accept all risks of unauthorized access to your Account and the information you provide to us, and

  • immediately notify us if you discover or otherwise suspect any security breaches related to the Service, or your Account.

You are solely responsible for the security of your Account and your MetaMask wallet (and your other Ethereum wallets and accounts).

 

We will block multiple accounts of the same user.

Ownership

We own our stuff. The Service and all content and other materials contained therein, including, without limitation, the FUNGI logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof, are the proprietary property of FUNGI LABS, or our affiliates, licensors or users, as applicable.

User Conduct

Be nice and do not violate any laws. You agree that you will not violate any law, contract, intellectual property or other third party rights, and that you are solely responsible for your conduct while accessing or using the Service or participating in the Auction. FUNGI has the right to close an account if these Terms are breached.

Auctions

We facilitate Auctions. Before participating, please see how the Auction works.

 

FUNGI platform facilitates two different time-based Auction formats – Scheduled Auction and Reserve Auction.

 

In a Scheduled Auction, we establish a specific start and end time for an Auction. Scheduled Auctions might also have fixed prices.

 

In a Reserve Auction, an Auction is configured to automatically go live once a bid is received equal or greater to a reserve price established by the seller. Once the reserve price is met, the Auction is instantiated and configured to last for 1-30 days.

The Crypto Asset goes to the highest bidder at the end of the Auction. All bids placed during Auctions are legally binding and irrevocable and will only be returned if a higher bid is placed.

Users acknowledge and assume the risk of initiating or participating in Auctions and take full responsibility and liability for the outcome of any Auction they participate in.

FUNGI LABS shall not be liable to you for contract, tort, or any other types of damages, including indirect, special, incidental, consequential, punitive or exemplary damages arising out of or related to participation in or the outcome of Auction or smart contract-enabled transaction.

Fees and Prices

We collect fees, and Creators might collect royalties. Always check before buying if the Creator is entitled to royalties in subsequent sales.

Every transaction on the FUNGI platform is subject to fees and royalties.

FUNGI LABS collects the platform fee from the seller based on the sales price. The amount of fees for the sale depends also on whether the transaction involves the first sale ("Primary Sale") or a subsequent sale in the secondary market ("Secondary Market Sale").

The User that has created the original work on the FUNGI platform ("Creator") might be entitled to royalties on subsequent sales. Creators might receive a 5-20% royalty based on the total sale price for Secondary Market Sales. The royalty is deducted from the total sale price at the time of the purchase by operation of the smart contracts.

For example, if the User is selling an item for 1 ETH on the Secondary Market and the Creator is entitled to a royalty of 10%, the User will receive only 0.90 ETH, with the Creator receiving the remaining 0.10 ETH as a royalty.

The User consents to the automated collection and disbursement to Creators of royalties for secondary market sales. The User hereby waives any first sale defence or argument concerning secondary market activities

Always check before buying if the Creator is entitled to royalties in subsequent sales from the NFT.

Indemnification

To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless FUNGI LABS, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns, from and against all actual or alleged third party claims, damages, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys' fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, "Claims"), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to:

 

  • your use or misuse of the Service, user information or Crypto Assets,

  • any feedback you provide,

  • your violation of these Terms, and

  • your violation of the rights of a third party, including another user or MetaMask.

This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and fungi labs.

Disclaimers

EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY FUNGI LABS, THE SERVICE, CONTENT CONTAINED THEREIN, AND CRYPTO ASSETS LISTED THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.

 

FUNGI LABS (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE:

 

  • WILL MEET YOUR REQUIREMENTS;

  • WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR

  • WILL BE ACCURATE, RELIABLE, COMPLETE, OR SAFE. FUNGI LABS 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, CONTENT CONTAINED THEREIN.

 

FUNGI LABS DO 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 IN THE SERVICE.

 

WHILE FUNGI LABS ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT SAFE, FUNGI LABS CAN NOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, OR ANY CRYPTO ASSETS LISTED ON OUR SERVICE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

WE CAN NOT 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 LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF CRYPTO ASSETS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM:

  • USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES;

  • SERVER FAILURE OR DATA LOSS;

  • CORRUPTED WALLET FILES;

  • UNAUTHORIZED ACCESS TO APPLICATIONS;

  • ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR CRYPTO ASSETS.

 

CRYPTO ASSETS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ETHEREUM NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM PLATFORM. WE DO NOT GUARANTEE THAT FUNGI CAN AFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY CRYPTO ASSETS.

FUNGI LABS is not responsible for sustained casualties due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), blockchains or any other features of the Crypto Assets. FUNGI LABS is not responsible for casualties due to late reports by developers or representatives (or no report at all) of any issues with the blockchain supporting Crypto Assets, including forks, technical node issues or any other issues having fund losses as a result.

Nothing in these Terms shall exclude or limit the 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 by legitimate means.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU​

Assumption of Risk

You accept and acknowledge the following.

The prices of blockchain assets are highly volatile. Fluctuations in the price of other digital assets could materially and adversely affect the Crypto Assets, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of Crypto Assets will not lose money.

You are solely responsible for determining what, if any, taxes apply to your Crypto Assets transactions. FUNGI LABS is not responsible for determining the taxes that apply to Crypto Assets transactions.

Our Service does not store, send, or receive Crypto Assets. This is because Crypto Assets exist only by virtue of the ownership record maintained on its supporting blockchain. Any transfer of Crypto Assets occurs within the supporting blockchain and not on FUNGI platform.

There are risks associated with using an Internet-based currency, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your wallet. You accept and acknowledge that FUNGI LABS will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Crypto Assets, however caused.

A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications and could therefore also negatively impact the potential utility or value of Crypto Assets.

The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Auction and/or Service and the utility of Crypto Assets.

The Service will rely on third-party platforms such as MetaMask to perform the transactions for the Auction of Crypto Assets. If we are unable to maintain a good relationship with such platform providers; if the terms and conditions or pricing of such platform providers change; if we violate or cannot comply with the terms and conditions of such platforms; or if any of such platforms loses market share or falls out of favour or is unavailable for a prolonged period of time, access to and use of the Service will suffer.

There are risks associated with purchasing user-generated content, including but not limited to, the risk of purchasing counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable.

FUNGI LABS reserves the right to hide collections, contracts, and assets affected by any of these issues or by other issues. Assets you purchase may become inaccessible on FUNGI. Under no circumstances shall the inability to view your assets on FUNGI platform serve as grounds for a claim against FUNGI LABS.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FUNGI LABS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS, THE SERVICE, PRODUCTS OR THIRD PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF FUNGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES, PRODUCTS OR THIRD-PARTY SITES AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF FUNGI LABS ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO AND USE OF THE SERVICE, CONTENT, CRYPTO ASSETS, OR ANY PRODUCTS OR SERVICES PURCHASED ON THE SERVICE EXCEED THE GREATER OF $1000.

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.

Modifications

We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Services or FUNGI platform (or any features or parts thereof) or suspend or discontinue the Auction at any time and without liability therefore.

Governing Law and Venue

These Terms shall be governed by Finnish law without regard to its principles and rules on conflict of laws.

Disputes arising from these Terms shall be finally settled through arbitration in accordance with the Arbitration Rules of the Finland Central Chamber of Commerce. The arbitral tribunal shall consist of one arbitrator. The seat of arbitration shall be Helsinki, Finland.

Miscellaneous

Notwithstanding anything contained in these Terms, 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.

If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.

These Terms constitute the entire agreement between you and FUNGI LABS relating to your access to and use of the Services and content, and your participation in the Auction.

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of FUNGI LABS prior, concurrent or subsequent circumstance, and FUNGI LABS's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.

Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.