Last Updated: August 23, 2022
Welcome to OpenTheta, owned and operated by OpenTheta AG, a Swiss company established in Baar, Zug, Enterprise Identification Number (UID) CHE- 232.576.191 (“OpenTheta”, “we”, “us” or “our”). These Terms of Service (“Terms”) set out the rules on which we offer you access to and use of our Non-fungible Token (“NFT”) Marketplace located at https://opentheta.io (URL, Uniform Resource Locator).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION AND AFFECT YOUR LEGAL RIGHTS. AS OUTLINED IN SECTION 17 BELOW, THEY INCLUDE A MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER WHICH (WITH LIMITED EXCEPTIONS) REQUIRE ANY DISPUTES BETWEEN US TO BE RESOLVED THROUGH INDIVIDUAL ARBITRATION RATHER THAN BY A JUDGE
These Terms constitute a legal agreement between you and OpenTheta and govern your access to and use of the NFT Marketplace, including any content, functionality, and service offered on or through the OpenTheta NFT Marketplace (collectively, the “Service”). References to “user”, “you” and “your” means you as the user of the Service. If you use the Service on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (i) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (ii) you agree to these Terms on the entity’s behalf.
WE ARE NOT A WALLET PROVIDER, EXCHANGE, BROKER, FINANCIAL INSTITUTION, OR CREDITOR. THE SERVICE IS AN ADMINISTRATIVE PLATFORM ONLY. THE OPENTHETA NFT MARKETPLACE PROVIDES A PEER-TO-PEER WEB3 SERVICE THAT HELPS USERS DISCOVER AND DIRECTLY INTERACT WITH EACH OTHER AND NFTS AVAILABLE ON THE THETA BLOCKCHAIN. THEREFORE WE ONLY FACILITATE TRANSACTIONS BETWEEN THE BUYER AND SELLER WHICH IS WHY WE ARE NOT A PARTY TO ANY AGREEMENT BETWEEN THE BUYER AND SELLER OF NFTS OR BETWEEN ANY USERS. WE DO NOT HAVE CUSTODY OR CONTROL OVER THE NFTS OR THE THETA BLOCKCHAIN YOU ARE INTERACTING WITH AND WE DO NOT EXECUTE OR EFFECTUATE PURCHASES, TRANSFERS, OR SALES OF NFTS. IN ANY CASE, YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF NFTS THAT YOU PURCHASE FROM THIRD-PARTY SELLERS USING THE SERVICE AND WE MAKE NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, FUNCTIONALITY, OR AUTHENTICITY OF USERS OR NFTS (AND ANY CONTENT ASSOCIATED WITH SUCH NFTS) VISIBLE ON THE SERVICE. TO USE OUR SERVICE, YOU MUST USE A THIRD-PARTY WALLET (E.G. METAMASK) WHICH ALLOWS YOU TO ENGAGE IN TRANSACTIONS ON THE THETA BLOCKCHAIN.
OpenTheta reserves the right to change or modify these Terms at any time and in our sole discretion. If we make material changes to these Terms, we will use reasonable efforts to provide notice of such changes, such as by providing notice through the Service or updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Service, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference effective as of the date these Terms are updated. It is your sole responsibility to review the Terms from time to time to view such changes and to ensure that you understand the terms and conditions that apply when you access or use the Service.
In these Terms of Service, the following capitalised terms will have the following meanings:
OpenTheta retains the sole and absolute discretion to allow or disallow your access to the OpenTheta NFT Marketplace.
By agreeing to these Terms, you represent and warrant that:
(i) You are at least 18 years of age (or the minimum age required in your jurisdiction of residence to use the OpenTheta NFT Marketplace);
(ii) You have the full right, power, and authority to agree to these Terms;
(iii) You are not subject to any financial sanctions, embargoes or other restrictive measures imposed by the United Nations, the European Union (EU), any EU country, the Swiss State Secretariat for Economic Affairs (SECO), the UK Treasury or the US Office of Foreign Assets Control (OFAC), or any governmental authority in any jurisdiction in which the OpenTheta NFT Marketplace is available (collectively, “Sanctions”);
(iv) You are not impersonating any other person;
(v) You will not use the OpenTheta NFT Marketplace if any applicable laws in your country of residence prohibit you from doing so in accordance with these Terms;
(vi) You have a cryptocurrency wallet capable of supporting and accepting an NFT; and
(vii) You are compliant with all applicable laws, rules and regulations to which you are subject.
Like much of Web3, your blockchain address functions as your identity on the OpenTheta NFT Marketplace. Accordingly, you will need a blockchain address and a third-party wallet (e.g. MetaMask) to access the Service. Your account on the Service (“Account”) will be associated with your blockchain address; however, you are free to add additional information (e.g. username, profile picture, email address) to your Account.
Your Account on the OpenTheta NFT Marketplace will be associated with your linked blockchain address and display the NFTs for that blockchain address (and, if applicable, any content associated with such NFTs). BY USING YOUR WALLET IN CONNECTION WITH THE SERVICE, YOU AGREE THAT YOU ARE USING THAT WALLET UNDER THE TERMS AND CONDITIONS OF THE APPLICABLE PROVIDER OF THE WALLET. Third-party Wallets (e.g. MetaMask) are not operated by, maintained by, or affiliated with us, and we do not have custody or control over the contents of your wallet and have no ability to retrieve or transfer its contents. OpenTheta accepts no responsibility for, or liability to you, in connection with your use of a third-party wallet and makes no representations or warranties regarding how the Service will operate with any third-party wallet.
IN ANY CASE, YOU ARE SOLELY RESPONSIBLE FOR KEEPING YOUR WALLET SECURE AND YOU SHOULD NEVER SHARE YOUR WALLET CREDENTIALS OR SEED PHRASE WITH ANYONE. IF YOU DISCOVER AN ISSUE RELATED TO YOUR WALLET, PLEASE CONTACT THE RESPECTIVE WALLET PROVIDER. LIKEWISE, YOU ARE SOLELY RESPONSIBLE FOR YOUR ACCOUNT AND ANY ASSOCIATED WALLET AND WE ARE NOT LIABLE FOR ANY ACTS OR OMISSIONS BY YOU IN CONNECTION WITH YOUR ACCOUNT OR AS A RESULT OF YOUR ACCOUNT OR WALLET BEING COMPROMISED. YOU AGREE TO IMMEDIATELY NOTIFY US IF YOU DISCOVER OR OTHERWISE SUSPECT ANY SECURITY ISSUES RELATED TO THE SERVICE OR YOUR ACCOUNT (YOU CAN CONTACT US HERE).
OpenTheta may require you to provide additional information and documents in certain circumstances, such as at the request of any government authority, as any applicable law or regulation dictates, or to investigate a potential violation of these Terms. In such cases, OpenTheta, in its sole discretion, may disable your Account and block your ability to access the Service until such additional information and documents are processed by us. If you do not provide complete and accurate information in response to such a request, we may refuse to restore your access to the Service.
Your access and use of the Service may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance, or repair of the Service or other actions that OpenTheta, in its sole discretion, may elect to take.
The OpenTheta NFT Marketplace allows you to sell, purchase, collect and showcase NFTs on the Theta Blockchain. Such transactions will be governed by, and conducted in accordance with, the individual Terms of Sale applicable to each such transaction as stated on the sales page of the respective NFT on the OpenTheta NFT Marketplace website. OPENTHETA IS NOT A PARTY TO ANY SUCH TERMS OF SALE, WHICH ARE SOLELY BETWEEN THE BUYER AND THE SELLER. THE BUYER AND SELLER ARE ENTIRELY RESPONSIBLE FOR COMMUNICATING, PROMULGATING, AGREEING TO, AND ENFORCING THE TERMS OF SALE. YOU ARE SOLELY RESPONSIBLE FOR REVIEWING SUCH TERMS OF SALE. FOR THIS REASON, THE SALE GOVERNED BY THE RESPECTIVE TERMS OF SALE IS FINAL AND NON-REFUNDABLE. OPENTHETA DOES NOT MAKE ANY REPRESENTATION THAT THE PRICE SET BY THE SELLER IS REASONABLE OR REFLECTS TO THE VALUE OF THE PURCHASED NFT. THERE WILL BE STRICTLY NO REFUNDS OR SALES CANCELLATION UPON COMPLETION OF THE SALE.
Transactions may occur in the format of a Fixed Price Sale as follows:
You may enter into a fixed price sale transaction whereby the Seller of the NFT shall list such NFT for sale on the OpenTheta NFT Marketplace at a fixed sale price and the Purchaser may enter into a legally binding agreement to purchase such NFT by committing to buy the NFT at the specified sale price, which offer from the Purchaser to buy the NFT is accepted by the Seller.
In the event that you list an NFT in a Sale on the OpenTheta NFT Marketplace, you acknowledge and agree that:
(i) you must only list an NFT that you Own;
(ii) your listing must be accurate, current, complete and include all the relevant information on the relevant NFT;
(iii) your listing must not be misleading (including through the omission of any material information with respect to the NFT listed for Sale); and
(iv) you acknowledge and accept that any sale of such NFT will be final and that you will not be able to cancel the same or retain ownership in such NFT following the completion of the Sale transaction with respect to the relevant NFT.
We reserve the right, in our sole and absolute discretion, to amend any listing to supplement, remove, or correct information that may be inaccurate or materially misleading.
Upon the acceptance of a Purchaser’s offer in a Fixed Price Sale, the total sale price for the Purchased NFT (along with all applicable taxes and fees) shall be payable by the relevant Purchaser in the cryptocurrency TFUEL as set forth by the Seller in the relevant Terms of Sale. Any payments or financial transactions that you engage in on the OpenTheta NFT Marketplace in respect of cryptocurrency will be conducted solely through the Theta Blockchain network. THEREFORE WE HAVE NO CONTROL OVER THESE PAYMENTS OR TRANSACTIONS, NOR DO WE HAVE THE ABILITY TO REVERSE ANY PAYMENTS OR TRANSACTIONS. WE HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY CLAIMS OR DAMAGES THAT MAY ARISE AS A RESULT OF ANY PAYMENTS OR TRANSACTIONS THAT YOU ENGAGE IN VIA THE OPENTHETA NFT MARKETPLACE, OR ANY OTHER PAYMENT OR TRANSACTIONS THAT YOU CONDUCT VIA THE THETA BLOCKCHAIN.
You agree and understand that all fees, commissions, royalties, and other compensation (“Fees”) are in consideration of OpenTheta's provision of the OpenTheta NFT Marketplace hereunder (including minting and/or listing NFTs) and such Fees will be transferred, processed, or initiated directly through one or more of the smart contracts on the Theta Blockchain network.
(i) The Fees for an initial sale on the OpenTheta NFT Marketplace (“Initial Sale”) are as follows:
The Fee for any Initial Sale is individually agreed between the Creator and OpenTheta depending on the complexity of the respective NFT project. Please contact us here in order to get an offer.
(ii) The Fees for a secondary sale on the OpenTheta NFT Marketplace (“Secondary Sale”) are as follows:
Sellers receive from 87% up to 97% of the total sales price of a Secondary Sale.
Creators receive up to 10% of the total sales price of a Secondary Sale.
OpenTheta collects 3% of the total sales price of a Secondary Sale.
With respect to any Fees which are to be received by a Creator with respect to any NFTs, OpenTheta is not responsible for the Creator's ability to collect any Fees for transactions occurring outside of the OpenTheta NFT Marketplace. Users irrevocably releases, acquits, and forever discharges OpenTheta and its Affiliates and its and their officers and successors of any liability for royalties, fines, or fees not received from any transaction outside of the OpenTheta NFT Marketplace.
Every transaction on the OpenTheta NFT Marketplace requires the payment of a transaction fee (each, a “Transaction Fee”). Except as otherwise expressly stated in these Terms of Service and/or the Terms of Sale, you will be solely responsible to pay any Transaction Fee for any transaction entered into via the OpenTheta NFT Marketplace.
We may, in our absolute and sole discretion, change, update, amend, remove, or discontinue any feature or functionality of the OpenTheta NFT Marketplace, the Services rendered thereunder and the Content with respect thereto at any time without prior notice to you. By continuing to access or use the OpenTheta NFT Marketplace following any such changes to the OpenTheta NFT Marketplace, the Services or the Content taking effect, you will be deemed to have accepted and agreed to such updated OpenTheta NFT Marketplace, Services and Content.
YOU AGREE THAT YOU ARE RESPONSIBLE FOR YOUR OWN CONDUCT WHILE ACCESSING OR USING THE OPENTHETA NFT MARKETPLACE OR YOUR ACCOUNT, AND FOR ANY CONSEQUENCES THEREOF. YOU AGREE TO USE THE OPENTHETA NFT MARKETPLACE OR YOUR ACCOUNT AT YOUR OWN RISK AND ONLY FOR PURPOSES THAT ARE LEGAL PROPER AND IN ACCORDANCE WITH THESE TERMS AND ANY APPLICABLE LAWS OR REGULATIONS. FURTHERMORE AND AS ALREADY STATED IN SECTION 1, YOU UNDERSTAND THE IMPORTANCE OF DYOR – DOING YOUR OWN RESEARCH. YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE AUTHENTICITY, LEGITIMACY, IDENTITY, AND OTHER DETAILS ABOUT ANY NFT, COLLECTION, OR ACCOUNT THAT YOU VIEW OR OTHERWISE INTERACT WITH IN CONJUNCTION WITH OUR SERVICE. WE MAKE NO GUARANTEES OR PROMISES ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ANY NFT, COLLECTION, OR ACCOUNT ON THE SERVICE.
We hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable personal license to access and use the OpenTheta NFT Marketplace in accordance with these Terms. Our grant of such license is subject to the following conditions:
You agree that you will not violate any law, contract, intellectual property or other third-party right while accessing or using the Service. You also agree that you will not:
Though openness is one of our most prized values and therefore being committed to grant people from all walks of life and varying experience levels with Web3 an access to the OpenTheta NFT Marketplace, we, however, need to protect our community and have to comply with our legal obligations. For this reason and in case we believe you have violated these Terms (for example and not limited to, by conducting prohibited activities according to Section 7.2), we reserve the right to take action, with or without advance notice. This may include: removing the ability to view certain NFTs on the Service or use our Service to interact with the NFTs; disabling the ability to use the Service in conjunction with buying/selling/transferring NFTs available on the Theta Blockchain; disabling your ability to access our Service; and/or other actions.
Unless otherwise indicated by us, the website, all content (except to the extent that such content is user content), and all other materials contained therein, including, without limitation, the logo and all designs, text graphics, pictures, information, data, software, and files relating to the OpenTheta NFT Marketplace (the “Content”) are the proprietary property of OpenTheta or our affiliates, licensors, or users, as applicable. The Content, including any product or service names, logos, or slogans relating thereto that may appear other than on the OpenTheta NFT Marketplace, is the proprietary property of OpenTheta and may not be copied, imitated or used, in whole or in part, without our prior written permission.
You agree that all right, title and interest (including all copyright, trademark, service marks, and other Intellectual Property Rights of any kind, whether registered or unregistered) in the Content, the OpenTheta NFT Marketplace and the Services rendered thereunder (whether present or future) belong to us, our affiliates or our licensors, as applicable.
Unless otherwise stated, you may not use any Content without our express written permission.
We reserve the right, with or without notice and in our sole discretion, to suspend, disable, terminate, or delete your Account and/or your ability to access or use the Service (or any part of the foregoing) at any time and for any or no reason if you have actually or allegedly infringed upon any person’s Intellectual Property Rights.
YOUR OWNERSHIP OF NFTs WILL ONLY BE RECOGNIZED BY US IF YOU HAVE PURCHASED OR OTHERWISE RIGHTFULLY ACQUIRED SUCH NFTs ON THE OPENTHETA NFT MARKETPLACE IN ACCORDANCE WITH THE TERMS OF SALE.
You acknowledge and agree that we (or, as applicable, our licensors) own all legal right, title and interest in and to all other elements of the OpenTheta NFT Marketplace and all Intellectual Property Rights therein. You acknowledge that the OpenTheta NFT Marketplace and the Content (collectively, the “Platform Materials”) are protected by copyright, trade dress, patent and trademark laws, international conventions, other relevant intellectual property and proprietary rights and applicable laws. Except as expressly set forth herein, your use of the OpenTheta NFT Marketplace does not grant you ownership of or any other rights with respect to, any content, code, data, or other Platform Materials that you may access on or through the OpenTheta NFT Marketplace. We reserve all rights in and to the Platform Materials that are not expressly granted to you in these Terms. Furthermore, all copyrights, trademarks, product names, and logos on the OpenTheta NFT Marketplace relating to and including the NFTs and Content, are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the owner of the applicable Intellectual Property Right.
Ownership of the NFT is mediated entirely by the Theta Blockchain network. When you purchase an NFT on the OpenTheta NFT Marketplace, you own the Purchased NFT, and you have the right to transfer, sell or give away your Purchased NFT. Upon such purchase, you will have a worldwide, perpetual, exclusive and transferable license to use, copy, and display the Purchased NFT for so long as you own the NFT, solely for the following purposes: (i) for your own personal, non-commercial use; (ii) as part of the OpenTheta NFT Marketplace that permits the purchase, sale and display of your NFT; (iii) as part of a third-party website or application that permits the inclusion, involvement, storage, or participation of your NFT.
The transfer, sale, or give away of your purchased NFTs, may be performed by you only by using the OpenTheta NFT Marketplace.
For the avoidance of doubt, you acknowledge and agree: (i) that your purchase of a NFT does not give you any rights or licenses in or to the Platform Materials (including, but not limited to, our copyright in and to the associated Art) other than those expressly contained in these Terms; (ii) that you do not have the right, except as otherwise set forth in these Terms, to reproduce, distribute or otherwise commercialize any elements of the Platform Materials (including, but not limited to, any Art) without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion; and (iii) that you will not apply for, register, or otherwise use or attempt to use any of our trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold at our sole and absolute discretion.
Subject to your continued compliance with these Terms, we grant you a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the Art for your Purchased NFT, solely for the following purposes: (i) for your own personal, non-commercial use; (ii) as part of a marketplace that permits the purchase and sale of your Purchased NFTs, provided that the marketplace cryptographically verifies each NFT owner’s rights to display the Art for their Purchased NFT to ensure that only the actual owner can display the Art; or (iii) as part of a third-party website or application that permits the inclusion, involvement, or participation of your Purchased NFT, provided that the website/application cryptographically verifies each NFT owner’s rights to display the Art for their Purchased NFT to ensure that only the actual owner can display the Art, and provided further that the Art is no longer visible once the owner of the Purchased NFT leaves the website/application.
You agree that you may not, nor permit any third party to do or attempt to do any of the foregoing without our (or, as applicable, our licensors’) prior written consent in each case: (i) modify the Art for your Purchased NFT in any way, including, but not limited to, the shapes, designs, drawings, attributes, or colour schemes; (ii) use the Art for your Purchased NFT to advertise, market, or sell any third-party product or service; (iii) use the Art for your Purchased NFT in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) use the Art for your Purchased NFT in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal, non-commercial use; (v) sell, distribute for commercial gain (including, but not limited to, giving away in the hopes of eventual commercial gain), or otherwise commercialise merchandise that includes, contains, or consists of the Art for your Purchased NFT; (vi) attempt to trademark, copyright, or otherwise acquire additional Intellectual Property Rights in or to the Art for your Purchased NFT; or (vii) otherwise utilise the Art for your Purchased NFT for your or any third party’s commercial benefit.
If the Art associated with your Purchased NFT contains Third Party IP, you understand and agree as follows: (i) that you will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (ii) that, depending on the nature of the license granted from the owner of the Third Party IP, we may need to (and we reserve every right to) pass through additional restrictions on your ability to use the Art; and (iii) to the extent that we inform you of such additional restrictions in writing, you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of the license contained in this Section.
The license granted in Section 9.4 above applies only to the extent that you continue to Own the applicable Purchased NFT. If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of your Purchased NFT for any reason, the license granted in Section 9.4 will immediately expire with respect to that NFT without the requirement of notice, and you will have no further rights in or to the Art for that NFT. The restrictions in Section 9.6 and this Section 9.7 will survive the expiration or termination of these Terms.
You accept and acknowledge:
You agree that you are solely responsible for (i) determining what, if any, taxes apply to your NFT transactions on the OpenTheta NFT Marketplace and (ii) paying any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, “Taxes”) associated with your use of, and transactions conducted on, the OpenTheta NFT Marketplace. Neither OpenTheta nor its affiliates or employees are responsible for determining the taxes that may apply to your NFT transactions. Except for income taxes levied on us, you: (i) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (ii) will not be entitled to deduct the amount of any such Taxes from payments (including servicing fees) made to us pursuant to these Terms (or the Terms of Sale).
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND OPENTHETA EXPRESSLY DISCLAIMS WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. OPENTHETA (AND ITS SUPPLIERS) MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY FOR WHETHER THE SERVICE: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (III) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. OPENTHETA 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. OPENTHETA WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. WHILE OPENTHETA ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE SAFE, OPENTHETA CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, CONTENT LINKED TO OR ASSOCIATED WITH ANY NFTS, OR ANY NFTS YOU INTERACT WITH USING OUR SERVICE OR OUR SERVICE PROVIDERS’ SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. NO ADVICE OR INFORMATION, WHETHER ORAL OR OBTAINED FROM THE OPENTHETA PARTIES OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD OPENTHETA RESPONSIBLE FOR ANY BREACH OF SECURITY.
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 NFTS, CONTENT, AND/OR CONTENT LINKED TO OR ASSOCIATED WITH NFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (I) USER ERROR, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) UNAUTHORIZED ACCESS OR USE; (IV) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR NFTS.
NFTS EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE THETA BLOCKCHAIN NETWORK. ANY TRANSFERS OR SALES OCCUR ON THE THETA BLOCKCHAIN NETWORK. OPENTHETA AND/OR ANY OTHER OPENTHETA PARTY CANNOT EFFECT OR OTHERWISE CONTROL THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS OR UNDERLYING OR ASSOCIATED CONTENT OR ITEMS.
NO OPENTHETA PARTY IS RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G. WALLET, SMART CONTRACT), THE THETA BLOCKCHAIN OR ANY OTHER FEATURES OF THE NFTS. NO OPENTHETA PARTY IS RESPONSIBLE FOR LOSSES OR INJURY DUE TO LATE REPORTS BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE THETA BLOCKCHAIN, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING LOSSES OR INJURY AS A RESULT.
Some jurisdictions do not allow the exclusion of implied warranties in contracts with consumers, so the above exclusion may not apply to you.
By agreeing to these Terms and accessing the Service, you agree, to the fullest extent permitted by applicable law, to indemnify, defend, and hold harmless OpenTheta, 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 (individually and collectively, the OpenTheta Parties”), from and against all actual or alleged claims, damages, awards, 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 (i) your use or misuse of the Service, content, NFTs, or content linked to or associated with any NFTs (ii) any Feedback you provide, (iii) your violation or breach of any term of these Terms or applicable law, and (iv) your violation of the rights of or obligations to a third party, including another user or third-party, and (v) your negligence or wilful misconduct. You agree to promptly notify OpenTheta of any Claims and cooperate with the OpenTheta Parties in defending such Claims.
For avoidance of doubt, nothing contained herein shall limit or restrict the OpenTheta Parties’ right to maintain or recover any amounts in connection with any action or claim based upon intentional misstatement, fraudulent misrepresentation, gross negligence or deceit.
OpenTheta reserves the right to exercise sole control over the defense, at your expense, of any claim subject to indemnification under this Section. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND OPENTHETA.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW YOU AGREE THAT IN NO EVENT WILL OPENTHETA OR ITS SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY (I) FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM THESE TERMS OR THE SERVICE, PRODUCTS OR THIRD-PARTY WEBSITES 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 STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF OPENTHETA OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) FOR ANY OTHER CLAIM, DEMAND, OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF THE DELIVERY, USE, OR PERFORMANCE OF THE SERVICE. ACCESS TO, AND USE OF, THE SERVICE, PRODUCTS OR THIRD-PARTY WEBSITES, 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 OPENTHETA ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO AND USE OF THE SERVICE, CONTENT, NFTS, OR ANY OPENTHETA PRODUCTS OR SERVICES EXCEED THE GREATER OF (I) CHF 1000 OR (II) THE AMOUNT RECEIVED BY OPENTHETA FOR ITS SERVICE DIRECTLY RELATING TO THE ITEMS THAT ARE THE SUBJECT OF THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
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.
To the fullest extent permitted by applicable law, you release the OpenTheta Parties from responsibility, liability, claims, demands, and/or damages (direct and indirect) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to Disputes and the acts or omissions of third parties.
YOU EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE UNDER ANY OTHER STATUTE OR COMMON LAW PRINCIPLES 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.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT CONTAINS CERTAIN PROVISIONS, SUCH AS A BINDING ARBITRATION SECTION AND CLASS ACTION WAIVER, WHICH AFFECT YOUR LEGAL RIGHTS. THIS CLAUSE REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
If you breach any of the provisions of these Terms, all licenses granted by OpenTheta will terminate automatically. Additionally, notwithstanding anything contained in these Terms, we reserve the right, with or without notice and in our sole discretion, to suspend, disable, terminate, or delete your Account and/or your ability to access or use the Service (or any part of the foregoing) 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.
You shall not assign these Terms without the prior written consent of OpenTheta. Any assignment or transfer in violation of this Section will be void. OpenTheta may assign these Terms to an affiliate. Subject to the foregoing, these Terms, and the rights and obligations of the Parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators, and legal representatives. Any purported assignment in violation of this provision shall be void.
These Terms including the the materials incorporated herein by reference, constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof, including, without limitation, any public or other statements or presentations made by any OpenTheta Party about the OpenTheta NFT Marketplace. To the extent any of the materials incorporated by reference contradict anything contained in these Terms, the provisions of these Terms shall prevail. No Party shall be liable or bound to other Party in any manner with regard to the subjects hereof or thereof by any warranties, representations or covenants except as specifically set forth herein or therein.
If any term, clause, or provision of these Terms is determined by a court of competent jurisdiction to be to be invalid, void or unenforceable for any reason, the remainder of the terms, clauses or provisions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve to the fullest extent possible the same or substantially the same result as that contemplated by such term, clause or provision.
The failure by OpenTheta to exercise or enforce any right or term, clause or provision of these Terms will not constitute a present or future waiver of such right or term, clause or provision nor limit the right of OpenTheta to enforce such right or term, clause or provision later. All waivers by OpenTheta must be unequivocal and in writing to be effective.
Nothing in these Terms and no action taken by the Parties shall constitute, or be deemed to constitute, a partnership, association, joint venture or other co-operative entity between the Parties. Nothing in these Terms and no action taken by the Parties pursuant to these Terms shall constitute, or be deemed to constitute, either Party the agent of the other Party for any purpose. No Party has, pursuant to these Terms, any authority or power to bind or to contract in the name of the other Party. These Terms do not create any third-party beneficiary rights in any person.
By creating an Account, you consent to receive electronic communications from OpenTheta (e.g. via email, push notification, text messages, or other types of messages). These communications may include notices about your Account (e.g. transactional information) and are part of your relationship with us. We may also send you promotional communications via email we think will be of interest to you. You understand that you are not required to provide this consent as a condition of using the Service and that you are able to withdraw your consent to receive electronic communications by sending a withdrawal notice to [email protected].
You understand and agree that OpenTheta shall not be liable and disclaims all liability to you in connection with any force majeure event, including acts of God, change of legislation because NFTs are new and not regulated, labor disputes or other industrial disturbances, electrical, telecommunications, hardware, software or other utility failures, software or smart contract bugs or weaknesses, earthquakes, storms, or other nature-related events, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war, technological change, changes in interest rates or other monetary conditions, and, for the avoidance of doubt, changes to any blockchain-related protocol.