Terms of Service
Last Updated: April 1, 2021
Welcome, and thank you for your interest in Fourthwall, Inc. (“Fourthwall”, “we”, or “us”) and our website at www.fourthwall.com, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Fourthwall regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 19, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND FOURTHWALL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 19.)
Fourthwall Service Overview.
This Section describes the Service and some of its features.
Fourthwall is a technology platform that allows you to set up a fully branded website (“Creator Site”) to enable you to better connect with your fans and followers by, among other things, allowing you to: (a) set up a merchandise store for the sale of physical or digital products (“Products”) which may be branded with your logo or other designs; (b) set up memberships where fans can receive access to exclusive Products and other content (“Memberships”); and (c) receive monetary donations from your fans (“Donations”).
This Section describes who may use the Service.
You must be at least 16 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 16 years old; (b) if you are under the age 18, your parent or guardian agrees to these Terms; (c) you have not previously been suspended or removed from the Service; and (d) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
Accounts and Registration.
This Section describes the mechanics of your account on the Service.
To use the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
Your Creator Site
This Section sets forth obligations related to the operation of your Creator Site.
Creator Site. Except as expressly set forth in these Terms, you are solely responsible for your Creator Site and your Creator Site’s compliance with all applicable laws, rules, and regulations. You can take down your Creator Site at any time by deleting your account on the Service.
The Template End User Terms are provided for informational purposes only and are not legal advice. Fourthwall is not your attorney and in no way represents you regarding any legal matters or otherwise. The Template End User Terms are not intended to and in no way establish an attorney-client relationship between you and Fourthwall. Do not rely on the Template End User Terms as a replacement for legal advice provided by a professional attorney in good standing and licensed to practice in your jurisdiction. You should consult independent legal advice before publishing any End User Terms. Fourthwall expressly disclaims all liability in connection with any actions taken or not taken based on any or all of the contents of the Template End User Terms or related information.
This Section describes how Users may order and return Products using the Service.
- Orders. Users may purchase Products or Memberships from your Creator Site (“Product Orders”). Each Product Order is a transaction directly between you and the end user. Fourthwall provides services and functionality through the Service to facilitate the transaction between you and the end user, but you acknowledge and agree that Fourthwall is not a party to any purchase transaction between you and an end user.
- Suppliers. When an end user places a Product Order through your Creator Site, the Service will, if applicable, on your behalf, automatically submit a purchase order for the Product to the applicable third-party manufacturer (“Supplier”). For certain Products, the Service may allow you to select which Supplier will manufacture the Product on your behalf or you may elect to manufacture the Product yourself. Additional information about which Suppliers are available for each Product is available on the Service. You acknowledge and agree that the purchase of Products from a Supplier is directly between you and the applicable Supplier, and Fourthwall is not a party to any such transaction or any agreement or other terms between you and any Supplier. Fourthwall will have no liability in connection with any Product, any agreement or other terms between you and any Supplier, or otherwise in connection with your purchase of Products from any Supplier via the Services.
- Logistics Services. Fourthwall may provide a service to facilitate the shipping of Products that you have manufactured on your own or using a third party manufacturer (“Pre-Made Products”) and may provide storage for such Pre-Made Products (collectively, “Logistics Services”). You are fully responsible for the manufacture and delivery of any Pre-Made Products to Fourthwall, including all related costs. Fourthwall will not be held responsible for any loss or damage to Pre-Made Products by the carrier or due to incorrect shipping information. Subject to these Terms, you will retain title to all Pre-Made Products. The fees for the Logistics Services are set forth at pricing page (“Logistics Fees”).
- Shipping. If applicable, Fourthwall will use commercially reasonable efforts to ship all Products using the address and shipping preferences provided by the end user in the Product Order unless otherwise specified by you. Fourthwall will deduct the estimated amount it will cost to ship Products (“Shipping Fees”) from the amounts paid to you. Fourthwall will provide the Shipping Fees for a Product Order upon checkout and the actual Shipping Fees charged will not exceed the amount shown to you. Shipping for any Products not shipped by Fourthwall will be your sole responsibility.
- Returns and Refunds. You must accept (and Fourthwall will accept on your behalf) all returns from end users within 30 days of the Product Order for Products with a defect that is covered by a Supplier warranty (“Supplier Defective Product”). Fourthwall will refund to the end user the purchase price of the Supplier Defective Products and will be responsible for all costs in connection with returns of Supplier Defective Products. For avoidance of doubt, Fourthwall does not accept returns of, or issue refunds for, Products that are not defective. Additionally, you may choose to accept returns from, and issue refunds to, your end users for any reason at your sole discretion. You will be fully responsible for and will bear all costs in connection with any other refund that you provide to any end user.
Creator Site Fees and Payment Terms.
This Section describes the payment of fees for the Service. It also specifies that Fourthwall will collect and remit taxes and serve as the Merchant of Record.
- Payment Processing. Fourthwall will process and receive payment from end users for all Product Orders, Memberships, and Donations made through your Creator Site. Fourthwall reserves the right to not authorize or settle any payment Fourthwall believes is in violation of these Terms or is fraudulent.
- Fees. Fourthwall will deduct the following fees from amounts owed to you under these Terms: (a) 3% of all revenue from digital Products or Memberships (“Digital Products Fee”); (b) a payment processing fee equal to 2.9% plus 30 cents of all payments made by end users through your Creator Site (“Payment Processing Fees”); and (c) Shipping Fees.
- Payments to You. Within 7 business days after the end of each calendar month, Fourthwall will pay to you the Product Revenue and Donation Revenue for that month, minus: (a) the Digital Products Fee; (b) the Payment Processing Fees; (c) Shipping Fees; (d) taxes collected by Fourthwall; and (e) amounts for refunds, returns, credits, chargebacks, and fraudulent transactions. Fourthwall may, in its sole discretion, exclude or withhold from any payment due to you any amount: (i) received in connection with a violation of these Terms; (ii) that Fourthwall believes to be fraudulent; or (iii) as necessary to comply with any law, rule, or regulation. “Product Revenue” means amounts received by Fourthwall in connection with Product Orders, minus amounts owed to Suppliers for the supply of the Product. “Donation Revenue” means amounts received by Fourthwall for Donations through your Creator Site.
- Threshold for Payment. Fourthwall will not be obligated to make a payment to you if the total amount owed to you under these Terms is less than $100 (“Payment Threshold”). Any amounts owed to you under the Payment Threshold will accrue until the total amount owed to you is equal to or greater than the Payment Threshold.
- Payment Information. Fourthwall will pay you any amounts owed under these Terms to the payment method that you choose from the payment options made available through the Service. To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information through the Service.
- Currency. All payments made by Fourthwall under these Terms will be made in U.S. Dollars. If Fourthwall is required to make a payment in a currency that is not U.S. Dollars, Fourthwall will use an exchange rate at its discretion and may charge you fees or charges for the conversion.
- Taxes. Other than net income taxes imposed on Fourthwall, you will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from these Terms, including all taxes in connection with transactions and payments made through the Services or otherwise made pursuant to these Terms. Notwithstanding the foregoing, Fourthwall will be responsible for calculating and collecting any and all sales taxes on Product Orders and will submit such collected sales taxes to the appropriate tax authorities. For sales tax purposes, FourthWall will serve as the Merchant of Record.
- Right of Set Off; Overpayment. At any time, Fourthwall may offset returns, refunds, or other amounts owed by you to Fourthwall against amounts Fourthwall owes to you. If any excess payment has been made to you for any reason whatsoever, Fourthwall reserves the right to adjust or offset the same against any subsequent amounts payable to you under these Terms.
This Section grants you the right to use the Service, describes some restrictions on that right, and gives Fourthwall the right to use any feedback you provide.
- Limited License. Subject to your complete and ongoing compliance with these Terms, Fourthwall grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
- License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
- Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service or if an end user of the Service provides any such feedback (“Feedback”), then you hereby grant Fourthwall an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
Ownership; Proprietary Rights.
This Section clarifies that Fourthwall owns the Service.
The Service is owned and operated by Fourthwall. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Fourthwall are protected by intellectual property and other laws. All Materials included in the Service are the property of Fourthwall or its third party licensors. Except as expressly authorized by Fourthwall, you may not make use of the Materials. Fourthwall reserves all rights to the Materials not granted expressly in these Terms. For avoidance of doubt, Materials shall not be deemed to include User Content, which is discussed in Section 11 and Fourthwall shall not take ownership of your User Content under these terms except as expressly set forth in these Terms.
Third Party Terms
This Section describes what third party terms are applicable to your use of the Service.
- Third Party Services and Linked Websites. Fourthwall may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Fourthwall with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Fourthwall may transfer that information to the applicable third party service. Third party services are not under Fourthwall’s control, and, to the fullest extent permitted by law, Fourthwall is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Fourthwall’s control, and Fourthwall is not responsible for their content.
- Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
This Section gives Fourthwall the right to use anything you post on the Service to provide the Service to you and includes some restrictions on what you may post.
- User Content Generally. Certain features of the Service may permit users to choose a unique domain for their Creator Site and to upload content to the Service, including Product designs, artwork, messages, reviews, photos, video, images, folders, data, text, and other types of works or digital content (“User Content”) and to publish User Content on the Service, including your Creator Site. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service, including your Creator Site.
- Limited License Grant to Fourthwall. By providing User Content to or via the Service, you grant Fourthwall a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed in order to provide the Service.
- Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
- User Content Representations and Warranties. Fourthwall disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Fourthwall and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Fourthwall, the Service, and these Terms;
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) cause Fourthwall to violate any law or regulation; or (iv) violate the Fourthwall Acceptable Use Policy at fourthwall.com/acceptable-use-policy (the “AUP”); and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
- User Content Disclaimer. We are under no obligation to edit or control any Creator Site or any User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Fourthwall may, however, at any time and without prior notice, screen, remove, edit, or block any User Content, including User Content on any Creator Site, that in Fourthwall’s sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Fourthwall with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Fourthwall does not permit copyright-infringing activities on the Service.
This Section describes what you may not do on the Service.
BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose or in violation of any local, state, national, or international law or the AUP;
- harass, threaten, demean, embarrass, or otherwise harm any person;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 8) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section 11 or assist or permit any person in engaging in any of the acts described in this Section 11.
Digital Millennium Copyright Act
This Section describes what happens if infringing content is posted on the Service.
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
PO Box 5696
Santa Monica, CA 90405
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Repeat Infringers. Fourthwall will promptly terminate the accounts of users that are determined by Fourthwall to be repeat infringers.
Modification of these Terms.
This Section gives Fourthwall the right to modify these Terms and describes how we may do so.
We reserve the right to change these Terms on a going-forward basis at any time upon notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 14, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
Term, Termination and Modification of the Service
This Section describes when and how these Terms and your use of the Service may be terminated.
- Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 14.2.
- Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Fourthwall may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at email@example.com.
- Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) your Creator Site will be taken offline; (d) you must pay Fourthwall any unpaid amounts that are due to Fourthwall; (e) Fourthwall will pay to you any undisputed amounts owed to you under these Terms and not yet paid; and (f) Sections 7.3, 8, 13, 14.3, 14.4, 15, 16, 17, 18, and 19 will survive.
- Abandoned Pre-Made Products. In the event of termination, you are responsible for all reasonable costs to deliver remaining Pre-Made Products back to you. Your Pre-Made Products will only be released once all Fees have been paid in full. In the event of your failure to pay all fees within 120 days, Fourthwall reserves the right to sell, in accordance with local and federal laws, any Pre-Made Products in our possession to settle the past due balances. Any remaining inventory after all Fees have been paid will be returned to you.
- Modification of the Service. Fourthwall reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service or your Creator Site), temporarily or permanently, without notice to you. Fourthwall will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
This Section states that you will indemnify Fourthwall if a claim is brought against you for a misuse of the Service, violation of these terms or any other rights, third party disputes, or your Products.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Fourthwall and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; or (e) any Product. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties
This Section limits the warranties Fourthwall makes about the Service and clarifies what we do not say the Service will do.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. FOURTHWALL DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. FOURTHWALL DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND FOURTHWALL DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR FOURTHWALL ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE FOURTHWALL ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Fourthwall does not disclaim any warranty or other right that Fourthwall is prohibited from disclaiming under applicable law.
Limitation of Liability
This Section limits Fourthwall’s liability for providing the Service.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE FOURTHWALL ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, OR ANY DAMAGE TO OR LOSS OF ANY OF YOUR PRE-MADE PRODUCTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FOURTHWALL ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 19.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE FOURTHWALL ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO FOURTHWALL FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration
This Section describes how disputes will be resolved under these Terms.
- Generally. In the interest of resolving disputes between you and Fourthwall in the most expedient and cost effective manner, and except as described in Section 18.2 and 18.3, you and Fourthwall agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FOURTHWALL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to Fourthwall, Inc., Attention: Legal Department – Arbitration Opt-Out, PO Box 5696, Santa Monica, CA 90405 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Fourthwall receives your Opt-Out Notice, this Section 18 will be void and any action arising out of these Terms will be resolved as set forth in Section 19.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- Arbitrator. Any arbitration between you and Fourthwall will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Fourthwall. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Fourthwall’s address for Notice is: Fourthwall, Inc., PO Box 5696, Santa Monica, CA 90405. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Fourthwall may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Fourthwall must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Fourthwall in settlement of the dispute prior to the award, Fourthwall will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- Fees. If you commence arbitration in accordance with these Terms, Fourthwall will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Fourthwall for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND FOURTHWALL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Fourthwall agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Fourthwall makes any future change to this arbitration provision, other than a change to Fourthwall’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Fourthwall’s address for Notice of Arbitration, in which case your account with Fourthwall will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 18.7 or the entirety of this Section 18 is found to be unenforceable, or if Fourthwall receives an Opt-Out Notice from you, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19.2 will govern any action arising out of or related to these Terms.
This Section includes any other terms that are applicable to your use of the Service.
- Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Fourthwall submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
- Contact Information. The Service is offered by Fourthwall, Inc., located at PO Box 5696, Santa Monica, CA 90405. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
- Data Backup. Fourthwall is not obligated to back up any data, files, materials, content, or information available on or provided to the Service or Fourthwall or otherwise stored on Fourthwall servers, including your Creator Site and any User Content. IT IS SOLELY YOUR DUTY AND RESPONSIBILITY TO BACKUP SEPARATELY YOUR FILES AND DATA THAT MAY RESIDE ON FOURTHWALL SERVERS. UNDER NO CIRCUMSTANCES WILL FOURTHWALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, FOR LOSS OF FILES OR DATA ON ANY FOURTHWALL SERVER.
- International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
We understand that legal jargon can be hard to read and interpret. To try and make things simpler, we’ve answered a few of the common questions and concerns below:
- We do not sell your fan/supporter’s data or market other people’s products to them.
- We will pay you the full amount earned directly to your bank account once per month.
Fourthwall is obligated to pay you your earnings once per month. See section 6.3.
- You are not locked in to Fourthwall or obligated to stay for any reason.
If you ever don’t feel like we’re the best option for you, you can leave at any time for any reason. See section 14.2.
- You retain the rights to the artwork and designs you upload to the platform.
When you upload artwork to our platform we don’t claim any ownership over it. It’s yours to use as you see fit, on and off Fourthwall. See sections 8, 10.1, and 10.2.
- You are responsible for ensuring that you have the rights to use artwork and designs you sell.
We provide you with software to run your own store. We are trusting you that you’ve made sure you have any necessary rights and permissions to use the artwork you’re selling. See sections 10.4 and 12.
These explanations are for clarification purposes only and have no legal effect.