TERMS & CONDITIONS
Last updated: 16 August 2022
Matiria, Inc. (“Matiria”, “Company” or “we”) facilitates and enables the integration of physical and digital items. Please read these Terms of Service (“Terms”) carefully.
These Terms govern any access or use of the website at matiria.com, and any other web site, mobile application, marketplace or application program interface operated or made available by Matiria (the “Platform”) as well as any services provided on or through the Platform (“Services”). By using our Services, you agree to these Terms, including Section 20 which contains a class action waiver and a mandatory arbitration provision that waives your right to sue in court or have a jury trial. If you do not agree to these Terms, do not use our Services.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If you have any questions about these Terms or our Services, please contact us at firstname.lastname@example.org.
1. Services and Digital Collectibles
The Matiria Platform allows users of the Platform to purchase NFTs (as defined below) using cryptocurrency which may be used to access and download a digital 3D VXR/VXA/VXM/VOX/GLTF/GLB/OBJ model of a character (the “3D Model”) and a 2D PNG/GIF/JPEG image of the character (“2D Image”) and to purchase physical merchandise (“Merchandise”), for example, a physical card embodying a rendering of an owner’s Digital Collectible (the “Card”). Services as used herein includes any services, features and functionality of the Platform related to the purchase or sale of any blockchain-based, cryptographic nonfungible token (“NFT”) which, together with the license rights to any associated digital works of authorship or other content, whether or not copyrighted or copyrightable, and regardless of the format in which any of the foregoing is made available (“Related Content”), comprises and is referred to herein as a “Digital Collectible”. The terms of your license to the Related Content and other terms applicable to the Digital Collectible will be presented to you at the time of purchase.
Additionally, certain Services may be made available exclusively to the owner of a particular Digital Collectible. You may be required to demonstrate ownership of the applicable Digital Collectible in order to access these Services, which Services include, but are not limited to: (i) the ability to view the NFT in a 3D environment or in augmented reality; (ii) the ability to create a 2D Image; or (iii) the ability to purchase a Card. Without limiting any other right to terminate or suspend Services under these Terms, we may terminate your access or use of these Services in the event that you transfer the applicable Digital Collectible to someone else.
Any digital works of authorship or other content made available through the Platform to an owner of a Digital Collectible that is intended as an “Additional Benefit” (as that term is defined in the Digital Collectible Terms) will be identified as such on the Platform or at the time of download. Any such content will be licensed to you for as long as you own the applicable Digital Collectible pursuant to the terms of any license presented at the time of download or, if no such terms are presented, pursuant to the applicable Digital Collectible Terms as Related Content for that particular Digital Collectible. Any other digital works of authorship and other content made available through the Platform is part of the Services and no license rights are granted to you with respect to any such content.
None of Matiria or any third party has any obligation to provide any Additional Benefit and none of Matiria or any third party will have any responsibility or liability for, arising out of, or relating to any Additional Benefit.
In order to use our Services, you must meet the following eligibility criteria:
● You must not be located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a "terrorist supporting" country.
● You must not be listed on any United States government list of prohibited or restricted parties.
● You must be at least 13 years of age. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to "you" throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, both you and the person or entity agree to be responsible to us.
4. Your User Account and Account Security
At a future date, we may require you to register for an account to access our Services. When you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. You must not permit others to use your account credentials. You are responsible for the activities of any users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
Access to your account is limited solely to you. You will not sell, rent, lease, or grant access to your account to any person without our prior written permission.
You are solely responsible for maintaining the security of your account and control over any usernames, passwords, or any other codes that you use to access our Services. You will not hold us responsible for managing and maintaining the security of your account. We are not responsible (and you will not hold us responsible) for any unauthorized access to or use of your account. You are responsible for monitoring your account. If you notice any unauthorized or suspicious activity in your account, please notify us immediately.
5. Purchases of Digital Collectibles and Merchandise
5.1 Digital Collectibles. We do not offer a hosted digital wallet on the Platform or otherwise custody Digital Collectibles for our users. You will be required to link a supported blockchain-based digital wallet (“Supported Wallet”) provided by supported third-party unhosted wallet providers (“Supported Wallet Provider”) to the Platform before you will be able to purchase a Digital Collectible. We will deliver any Digital Collectibles that you purchase from us directly to your Supported Wallet and you will be responsible for safekeeping the passwords and keys associated with your Supported Wallet. We will not be able to recover purchased Digital Collectibles for you in the event that you lose access to your Supported Wallet account or under any other circumstances.
Each Supported Wallet Provider is a third-party company that offers unhosted digital wallet products and services. We are not in any way affiliated or partnered with Supported Wallet Providers. Your use of each Supported Wallet Provider’s products and services is subject to its applicable terms of service. We will not be liable to you for any loss that results from your use of a Supported Wallet Provider’s products and services, including Supported Wallets.
Currently, Matiria-developed NFTs may be stored on several types of blockchain, such as Ethereum and Tezos. However, we may amend the list of supported blockchains from time to time. You cannot maintain a balance of cryptocurrency with us for purposes of making purchases through our Services. You must link your Supported Wallet to the Services and use a supported type of cryptocurrency from your Supported Wallet to complete your purchase.
All pricing and payment terms are as set forth on the Platform, and any payment obligations you incur are binding at the time of purchase. All sales are final. Unless otherwise required by applicable law, we will not provide a refund on any purchase.
You represent and warrant that any purchase of a Digital Collectible by you is solely for your personal collection, use and enjoyment, and not for speculative or investment purposes, for use as a substitute for currency or other medium of exchange, or for resale or redistribution. You acknowledge and understand that by purchasing a Digital Collectible you are not acquiring any equity or other ownership or profit-sharing interest in Matiria, or any of its affiliates or any brand or other business venture.
You will not portray any Digital Collectible as an opportunity to gain economic benefit or profit, or as an investment, equity, or other ownership or profit-sharing interest in Matiria, or any of its affiliates or any brand or other business venture. You will comply with any marketing policies or guidelines published by Matiria for NFTs or Digital Collectibles.
LEGISLATIVE OR REGULATORY CHANGES AT THE STATE, FEDERAL OR INTERNATIONAL LEVEL MAY ADVERSELY AFFECT THE USE, TRANSFER, OR EXCHANGE OF THE DIGITAL COLLECTIBLES.
5.2 Merchandise. From time to time, Matiria may make Merchandise (including Cards) available for purchase. At the time of purchase, you may be asked to provide certain information required for order processing including but not limited to providing your full name and a valid shipping address. Each third party engaged by Matiria to satisfy orders of Merchandise, including Cards (as applicable), is a third-party company. We are not in any way affiliated or partnered with such providers. Your use of such provider’s products and services is subject to its applicable terms of service. We will not be liable to you for any loss that results from your use of such provider’s products and services. All purchases of Merchandise must be made in U.S. Dollars or in another internationally-recognized currency (not in cryptocurrency). All pricing and payment terms are as set forth on the Platform, and any payment obligations you incur are binding at the time of purchase. All sales are final. Unless otherwise required by applicable law, we will not provide a refund on any purchase.
6. Digital Collectibles Acquired through Third Party Platforms
With respect to any Digital Collectible originally sold through the Platform but that you acquired from a third party through a third party platform or service, by agreeing to these Terms, you agree to be bound by the applicable Digital Collectible Terms for the Digital Collectible. In addition, you acknowledge and agree that in the event the third party from whom you purchased the Digital Collectible does not pay any amounts owed to Matiria in connection with the transfer to you, Matiria may, at its option and discretion (and without limiting its right or ability to do so as otherwise provided in these Terms) refuse to provide you with access to the Platform or any Service, unless and until all outstanding amounts have been paid.
7. Suspension of Account
In the event that you are required to create an account with us, we have the right to immediately suspend your account, pause or cancel your access to our Services, or close your account if we suspect, in our sole discretion, that (a) your account is being used for money laundering, to evade sanctions or to engage in illegal activity, (b) you have concealed or provided false identification information or other details, (c) you have engaged in fraudulent activity, or (d) you have engaged in transactions in violation of these Terms.
8. License to Services and Ownership
Our Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Matiria or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to our Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of our Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
9. Related Content
9.1 Generally. Each Digital Collectible is a limited-edition digital asset comprised of an NFT and associated Related Content. Related Content is licensed to you, not acquired by you when you acquire the NFT. Ownership of any Related Content is retained by Matiria or the third party that developed or acquired ownership of the Related Content (any such third party, a “Third Party Developer”). No ownership or title in or to any Related Content is transferred to you, and no other right or interest in any Related Content is transferred to you except for the limited license rights that are expressly set forth in the Digital Collectible Terms. For clarification, the Related Content is neither stored nor embedded in the Digital Collectible, but is accessible through the Digital Collectible, subject to compliance with these Terms and the Digital Collectible Terms.
9.2 Restrictions. You will not, attempt to, or permit or enable any third party to: (a) separate the Related Content from the Digital Collectible; (b) modify the Related Content, unless expressly permitted to do so pursuant to the Digital Collectible Terms; (c) register or attempt to register any trademark or copyright or otherwise acquire additional intellectual property rights in or to any Related Content; (d) use any Related Content to create, endorse, support, promote or condone any content, material or speech that is defamatory, obscene, pornographic, indecent, abusive, offensive, harassing, violent, hateful, racist, discriminatory, inflammatory or otherwise objectionable or inappropriate as determined by Matiria at its discretion; (e) commercialize the Related Content or use the Related Content in connection with any business, message, product, or service, or in any manner that may imply endorsement of any business, message, product, or service; (f) use the Related Content in any manner that is likely to cause confusion or dilute, blur, or tarnish the Related Content or any intellectual property rights in the Related Content; or (g) use the Related Content in any manner that infringes, violates or misappropriates any third party intellectual property or intellectual property right, or that violates the these Terms or the Digital Collectible Terms.
9.3 Transfer or other Fees. Matiria and Third Party Developers, as well as our affiliates, licensors and designee(s), may be entitled to receive transfer or other fees or royalties from your purchase or subsequent sales of a Digital Collectible, which defray costs associated with licensing the Related Content, administration of the Digital Collectible ownership and corresponding license rights, and making any optional Additional Benefits (as defined below) available to you or subsequent holders of the Digital Collectible.
10. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
▪ use or attempt to use another user’s account without authorization from that user and Matiria;
▪ impersonate or otherwise misrepresent your affiliation with a person or entity;
▪ sell, resell or commercially use our Services;
▪ copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
▪ modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
▪ use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
▪ reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
▪ attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
▪ use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
▪ develop or use any applications that interact with our Services without our prior written consent; or
▪ use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
Enforcement of this Section 10 is solely at Matiria’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 10 does not create any private right of action on the part of any third party or any reasonable expectation that our Services will not contain any content that is prohibited by such rules.
Matiria and our logos, our product or service names, our slogans and the look and feel of our Services are trademarks of Matiria and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on our Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Matiria or our Services (collectively, "Feedback"). We may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Matiria’s sole discretion. You understand that Matiria may treat Feedback as nonconfidential.
13. Third Party Content
We may provide information about Additional Benefits made available by third parties or other third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through our Services (collectively, "Third-Party Content"). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Matiria does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Matiria and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the " Matiria Parties") from and against any losses, liabilities, claims, demands, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Services (including, without limitation, Digital Collectibles, Additional Benefits and Related Content); (b) your Feedback; (c) your violation of these Terms (including, without limitation, the terms and conditions with respect to any Digital Collectible, Additional Benefit or Related Content) or the Digital Collectible Terms; (d) your violation, misappropriation or infringement of any intellectual property, privacy, or other rights of another; or (e) your conduct in connection with our Services. You will cooperate with the Matiria Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). Matiria Parties will have control of the defense or settlement, at Matiria's sole option, of any third-party Claims.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, THE SERVICES AND ANY CONTENT IN THE SERVICES, AND ANY AND ALL RELATED CONTENT, THIRD-PARTY CONTENT, BENEFIT AND DIGITAL COLLECTIBLE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, MATIRIA DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES, RELATED CONTENT, THIRD-PARTY CONTENT, BENEFITS OR ANY DIGITAL COLLECTIBLES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE MATIRIA ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR SERVICES. 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 ACCESS TO OR USE OF ANY RELATED CONTENT, THIRD-PARTY CONTENT, BENEFIT OR DIGITAL COLLECTIBLE INCLUDING BUT NOT LIMITED TO ANY LOSS, DAMAGE OR CLAIM ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (E) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SITE OR APPLICABLE BLOCKCHAIN.
THE DIGITAL COLLECTIBLES ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE BLOCKCHAIN NETWORK. ANY TRANSFER OF CONTROL THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE APPLICABLE BLOCKCHAIN NETWORK.
The Digital Collectibles are currently available only on certain blockchains such as Ethereum and Tezos. You will not be able to transfer your Digital Collectibles to any digital wallet that is not compatible with these blockchains. In the event that you inadvertently transfer a Digital Collectible to a digital wallet that is not compatible with these blockchains, your Digital Collectible may be lost or destroyed.
The Digital Collectibles are transferable blockchain-based non-fungible tokens that evidence a limited license to Related Content, and, in some cases, a limited license to Third-Party Content and/or to access Additional Benefits, that is exclusive to the owner and thereby collectible as a form of alienable digital property. Like physical collectibles, the price of non-fungible tokens may be subject to fluctuation based upon broader industry trends and sentiment. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of non-fungible tokens. Unlike cryptocurrencies and other fungible digital assets, non-fungible tokens are not used to make payments. Non-fungible tokens are not mutually interchangeable and cannot be divided into smaller parts. These design features limit the usefulness of non-fungible tokens as a form of payment or substitute for currency. Instead, non-fungible tokens are enjoyed as digital collectibles.
There is no guaranteed future value for Digital Collectibles. Any future value of a Digital Collectible is based solely on consumer interest and demand for that Digital Collectible and not something that Matiria or any Third Party Developer or other third party can control or will attempt to control or influence. We are not responsible for sustained losses due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), the applicable blockchain or other third party service or infrastructure, including Supported Wallets and Supported Wallet Providers, or any other features of Digital Collectibles. We are not responsible for sustained losses due to late reports by developers or representatives (or no report at all) of any issues with the applicable blockchain supporting Digital Collectibles including forks, technical node issues or any other issues having fund losses as a result.
In some cases, Matiria integrates directly with third parties, including but not limited to, online merchant platforms, mailing list platforms, and social media platforms (“Third Party APIs”). Matiria has no control over the uptime and functionality made available through Third Party APIs and as such certain aspects of the Platform could incur an outage outside of Matiria’s control, and certain aspects of the Platform’s functionality could be impacted by changes of features made available through Third Party APIs.
The Matiria platform is subject to flaws and acknowledge that you are solely responsible for evaluating any code provided by the Platform. Matiria may experience cyber-attacks, unexpected surges in activity, or other operational or technical difficulties that may cause interruptions to or delays on the Platform. You accept the risk of the Platform failure resulting from unanticipated or heightened technical difficulties, including those resulting from sophisticated attacks, and you agree not to hold us accountable for any related losses.
16. Disclaimer of Damages
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MATIRIA AND THE OTHER MATIRIA PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF MATIRIA OR THE OTHER MATIRIA PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Limitation of Liability
THE TOTAL LIABILITY OF MATIRIA AND THE OTHER MATIRIA PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR SERVICES, OR ANY AND ALL RELATED CONTENT, BENEFIT AND DIGITAL COLLECTIBLE, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $100 OR THE AMOUNT PAID BY YOU TO USE OUR SERVICES.
The limitations set forth in Sections 16 and 17 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Matiria or the other Matiria Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Matiria and the other Matiria Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to (a) disputes between users, (b) acts or omissions of third parties, or (c) anything else for which you have agreed that Matiria will have no responsibility or liability pursuant to these Terms. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
19. Transfer and Processing Data
In order for us to provide our Services, we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
20. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Matiria and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
20.1 No Representative Actions. You and Matiria agree that any dispute arising out of or related to these Terms or our Services is personal to you and Matiria and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
20.2 Arbitration of Disputes. Except for small claims disputes in which you or Matiria seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Matiria seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Matiria waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Matiria you agree to first contact Matiria and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Matiria by email at email@example.com. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Matiria cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in the County of Middlesex in the Commonwealth of Massachusetts. You and Matiria agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
20.3 You and Matiria agree that these Terms affect interstate commerce and that the enforceability of this Section 20 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
20.4 The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Matiria, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
20.5 You and Matiria agree that for any arbitration you initiate, you will pay the filing fee and you and Matiria will split equally the remaining JAMS fees and costs; provided that if you are a consumer the maximum amount you will be required to pay for the filing fee is $250 and Matiria will pay any remaining amount of the filing fee and the remaining JAMS fees and costs. For any arbitration initiated by Matiria, Matiria will pay all JAMS fees and costs. You and Matiria agree that the state or federal courts of the State of Massachusetts and the United States sitting in County of Middlesex in the Commonwealth of Massachusetts have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
20.6 Any Dispute must be filed within one (1) year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Matiria will not have the right to assert the claim.
20.7 You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 20 by emailing us at firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 21.
20.8 If any portion of this Section 20 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 20 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 20; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 20 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 20 will be enforceable.
21. Governing Law and Venue
Any dispute arising from these Terms and your use of our Services will be governed by and construed and enforced in accordance with the laws of the State of Massachusetts without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts located in the County of Middlesex in the Commonwealth of Massachusetts and you consent to jurisdiction and venue in such courts.
22. Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
24. Relationship of these Terms and Digital Collectible Terms
Digital Collectible Terms may be entered between you and Matiria (“Matiria Collectible Terms”) or between you and the applicable Third Party Developer (“Third Party Collectible Terms”). Matiria Collectible Terms, and any other terms that may be provided with or that you may otherwise agree to in connection with any particular Digital Collectible or Service, are incorporated into, and made a part of, these Terms by this reference. Matiria is not a party to any Third Party Collectible Terms and will not have any responsibility or liability for, arising out of, or relating to any Third Party Collectible Terms.
Notwithstanding anything else in any Digital Collectible Terms, these Terms supplement the Digital Collectible Terms and these Terms will apply to any exercise of any license in or to any Related Content, any transfer of any Digital Collectible or any other use or disposition of any Digital Collectible; provided that in the event of any conflict or inconsistency between these Terms and any Digital Collectible Terms, the Digital Collectible Terms will govern. For avoidance of doubt, and notwithstanding anything else in these Terms or any Digital Collectible Terms, if you breach any obligation that you may have to make payments to Matiria pursuant to any Digital Collectible Terms or these Terms, such breach shall constitute a breach of any and all of these Terms and any applicable Digital Collectible Terms.
Subject to the foregoing provisions of this Section 24, these Terms constitute the entire agreement between you and Matiria relating to your access to and use of our Services.
Notwithstanding any other provisions of these Terms, Sections 6 through 25 survive any expiration or termination of these terms. The failure of Matiria to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. 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. You agree that communications and transactions between us may be conducted electronically. These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or our Services, in whole or in part, without your prior written consent.
DIGITAL COLLECTIBLE TERMS
Last updated: 16 August 2022
These Digital Collectible Terms (“Terms”) set forth the terms and conditions applicable to certain Digital Collectibles (as defined below) made available through the website (“Website”) operated by Matiria, Inc. (“Matiria” or “Company”). By acquiring any non-fungible blockchain-based digital token (“NFT”) associated with Company-Owned Content (as defined below) through the Website or by subsequently acquiring any such NFT from any previous owner of the NFT, you agree to be bound by these Terms.
1. Each NFT made available by Matiria through the Website is associated with certain digital works of authorship or other content, whether or not copyrighted or copyrightable, and regardless of the format in which any of the foregoing is made available (“Related Content”). The Related Content shall include, but shall not be limited to the 3D Model and the 2D Image, each of which is defined in the Matiria Platform Terms of Service. Related Content is separate from the associated NFT, and is not sold or otherwise transferred to you but is instead licensed to you as set forth in these Terms. A “Digital Collectible” consists of the applicable NFT originally acquired through the Website and the license rights granted pursuant to these Terms for the Related Content.
2. These Terms apply only when all Related Content for a particular NFT is exclusively owned or controlled by Matiria (“Company-Owned Content”). The description on the Website of the applicable NFT or Digital Collectible will include information about whether the Related Content for that particular NFT or Digital Collectible is Company-Owned Content. If any of the Related Content for that NFT or Digital Collectible is owned by a third party, different terms will apply.
3. Subject to your compliance with these Terms, for as long as you own the applicable NFT, Matiria grants you a limited, personal, non-exclusive, non-sublicensable, worldwide license under any copyright owned or controlled by Company in any Company-Owned Content to: (a) copy the Company-Owned Content for non-commercial, personal use; and (b) display and perform the Company-Owned Content for non- commercial, personal use. Subject to additional requirements imposed by Matiria such as proof of NFT ownership, you may be permitted to modify the Company-Owned Content Using one or more of the authorized features on the Site. No other modification of Company-Owned content is permitted.
4. You are not permitted to use the Company-Owned Content for commercial use.
5. Section 3 sets forth all of your license rights hereunder with respect to any Company-Owned Content. There are no other license rights, whether express or implied, with respect to any of the Company-Owned Content, and no license rights are granted under any patent, trademark, trade secret or other intellectual property or proprietary right other than any copyright owned or controlled by Matiria. This is true even if exercise of any license rights granted herein would be prevented, frustrated or impaired without such a license. Without limiting the foregoing, the licenses granted herein do not grant you the right to, and you will not, and you will not authorize, permit or assist any third party to: exercise any of the license rights granted herein in any way that results in direct or indirect, compensation, financial benefit or commercial gain of any kind to you or any third party, whether currently realized or to be provided in the future and regardless of the nature thereof (whether monetary, conveyance of assets, in-kind products or services or other item or service of value); grant any sublicense of any license rights herein; delete, remove or obscure any trademark notice, copyright notice or other intellectual property notice in any Company-Owned Content; exercise any license rights herein to create, endorse, support, promote or condone any content, material or speech that is defamatory, obscene, pornographic, indecent, abusive, offensive, harassing, violent, hateful, racist, discriminatory, inflammatory or otherwise objectionable or inappropriate as determined by Matiria at its discretion; reverse engineer, decompile or attempt to discover the source code for any NFT or Company-Owned Content; or use any Company-Owned Content in any manner not expressly authorized herein or exercise any license rights herein in any manner that violates applicable law.
6. Matiria retains all right, title and interest in the Company-Owned Content and all copyright or other intellectual property rights in any Company-Owned Content. Except for the license rights expressly granted in Section 3, above, you do not have and will not have any right, title or interest in or to any Company-Owned Content. Without limiting the foregoing, the Company-Owned Content may include trade names, brands, logos, trademarks, names, likenesses, images or other personal characteristics of persons or characters (“Embedded IP”). Your use of such Embedded IP is limited to use in connection with the exercise of your license rights under these Terms and subject to all limitations set forth herein and any other restrictions that Matiria may inform you of in the future. You may not use any such Embedded IP in connection with any business, product or service, or in any manner that may imply endorsement of any business, message, product or service, or that is likely to cause confusion or dilute, blur or tarnish such Embedded IP. All use of such Embedded IP, including any goodwill generated by such use, will inure to the benefit of Matiria and its Affiliates, if applicable. An “Affiliate” of Matiria is any entity that controls, is controlled by or is under common control with Matiria whether now or in the future, and where “control” means ownership of 50% or more of the shares or other ownership interest if an entity or the ability to direct the management or policies of an entity.
7. You will own the copyright in any newly created works of authorship created by you as part of any Modified Content, subject to Matiria’s ownership of the underlying Company-Owned Content and any copyright or other intellectual property right therein. You will not have, and you will not assert or seek to register or obtain, any trademark or other intellectual or proprietary right in any Company-Owned Content.
8. You understand that Matiria and its Affiliates will continue to further modify and develop on any Company-Owned Content. As between you and Matiria, Fiat Lux will own all right, title and interest in and to the intellectual property in such modified, developed, or improved Company-Owned Content.
9. You will not (a) create, sell or attempt to create or sell, fractionalized interests in the NFT or the Digital Collectible, (b) separate, unlink or decouple the Company-Owned Content from the NFT with which it is associated to form the Digital Collectible, or (c) use any Company-Owned Content to create, sell or attempt to create or sell any new cryptographic token.
10. To the extent that you are not prohibited from doing so by any other terms or conditions applicable to a particular NFT or Digital Collectible, you may transfer the NFT to a third party, provided that the following conditions are met: such transfer is conducted through a marketplace or other platform that cryptographically verifies that you are the actual owner of the applicable NFT; such transfer must comply with (i) any applicable terms of the marketplace or other platform on which such sale or other transfer takes place and (ii) any applicable laws, regulations, regulatory guidance, and rules; prior to such sale or other transfer, you must (i) provide written notice to the would-be transferee that such transferee’s exercise of the license rights included as part of the Digital Collectible will be conditional upon such transferee agreeing to be bound by these Terms, and (ii) ensure that such transferee is provided with an opportunity to review these Terms; and after such transfer, your right to display and perform the Company-Owned Content and all other license rights under these Terms will immediately terminate (without the requirement of notice).
11. Upon transfer of any NFT, in consideration of the transfer of the license rights set forth in these Terms, the ongoing hosting of any Company-Owned Content and any other associated services, you will pay (or caused to be paid) to Matiria a fee in an amount calculated by multiplying the total amount paid by the acquiror for the NFT (without any deductions of any kind) by the following percentage applicable to the NFT: 7.5% (the “Transfer Fee”). If the platform or service used to facilitate the transfer captures and pays the full amount of the Transfer Fee directly to Matiria then you will have no obligation to pay any additional amounts. You will pay any and all transaction fees, payment transfer fees and taxes (other than taxes on Matiria’s net income) associated with the transfer and will not deduct any such amounts from the amount paid to Matiria as the Transfer Fee. All amounts owed hereunder will be paid in US Dollars or in a cryptocurrency (as determined in Matiria’s sole discretion), and will be paid to the account or digital wallet designated by Matiria.
12. THE DIGITAL COLLECTIBLE IS INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY. IT IS NOT A “SECURITY,” AS DEFINED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY U.S. STATE.
13. You will comply with any NFT issuance or marketing policy that Matiria may provide to you, as updated from time to time.
14. From time to time at their discretion, Matiria or third parties may make additional content, physical items or other benefits available to the holder of the applicable NFT (any of the foregoing, an “Additional Benefit”). None of Matiria or any third party has any obligation to inform you of, or to provide you with, any Additional Benefit, and you should therefore not expect any Additional Benefit when acquiring an NFT. It will be your responsibility to keep yourself apprised of the availability of any Additional Benefit and to take the necessary steps to apply for or collect any Additional Benefit. The terms and conditions applicable to any Additional Benefit will be set forth in the information or materials provided with the Additional Benefit. Except to the extent set forth in such information or materials which shall supersede and govern over any conflicting or inconsistent provisions in these Terms, any digital works of authorship made available by Matiria as an Additional Benefit will be licensed on the same terms set forth herein for, and will otherwise be treated as, Company-Owned Content. With respect to any physical item provided as an Additional Benefit, except as otherwise provided in any separate terms and conditions applicable to the Additional Benefit, you will not have any license rights under any intellectual property rights in or to any such physical item.
15. Matiria will have no responsibility or liability, and you hereby waive and release any and all claims, arising out of or in connection with (a) any blockchain or related technology, (b) any digital wallet, MetaMask technology, similar technology or related service, (c) the transfer or loss of any NFT or the inability to demonstrate ownership or control of any NFT, (d) any marketplace or other platform for buying, selling or transferring any NFT other than the Website, (e) any platform or service provided by any third party or any technology related thereto, (f) any Additional Benefit provided by any third party, or any terms or conditions applicable to any such Additional Benefit, (g) any computer, server, network device or other hardware or any Internet service provider or other telecommunications service or hardware, or (h) any other service, equipment, technology or network or data transfer infrastructure not owned and controlled by Matiria.
16. You will indemnify and hold harmless, and at Matiria’s request defend, Matiria and its Affiliates from and against any and all claims, demands, liabilities, damages, penalties, fines, taxes, costs and expenses (including without limitation reasonable attorneys’ fees and court costs) arising out of or in connection with (a) any breach of these Terms or unauthorized use of any Company-Owned Content, (b) your ownership or transfer of any NFT, or (c) exercise of any license rights hereunder by you.
17. MATIRIA AND ITS AFFILIATES MAKE DIGITAL COLLECTIBLES, NFTS AND COMPANY-OWNED CONTENT, AS WELL AS ANY ADDITIONAL BENEFIT THAT ANY OF THEM OR ANY THIRD PARTY MAY PROVIDE, AVAILABLE “AS IS”, “WHERE IS” AND EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE.
18. IN NO EVENT WILL MATIRIA OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHER NON-DIRECT DAMAGES OF ANY KIND OR FOR ANY SPECIAL, PUNITIVE OR SIMILAR DAMAGES.
19. THE MAXIMUM AGGREGATE LIABILITY OF MATIRIA AND ITS AFFILIATES FOR ALL DAMAGES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE ONE HUNDRED DOLLARS ($100).
20. In addition to any other rights and remedies to which Matiria may be entitled under contract, at law or in equity, if you breach any of your obligations under these Terms, your right to display and perform the Company-Owned Content and any and all other license rights that you may have under these Terms will immediately terminate without any requirement of notice. Upon termination of your license rights you will immediately cease all use of any Company-Owned Content. Matiria may disable MetaMask or similar functionality for the affected Company-Owned Content, prohibit any platform or service from retrieving or rendering any such Company-Owned Content in connection with the services they provide and take other steps to prevent unauthorized use of any Company-Owned Content. Matiria will have no obligation or liability to you for any such actions and you will not interfere with, or seek to prevent, any such actions.
21. These Terms supplement any additional terms and conditions in any information or materials provided with any Company-Owned Content or Additional Benefit (“Additional Terms”). In the event of any conflict or inconsistency between these Terms and any Additional Terms, the Additional Terms will supersede and govern. These Terms and any Additional Terms constitute the entire agreement between you and Matiria with respect to the subject matter hereof, and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and Matiria relating to the NFT, Company-Owned Content or Digital Collectible.
22. These Terms will be construed in accordance with the laws of the state of Massachusetts as applied to contracts made and performed entirely therein, and without regard to conflicts of laws principles to the contrary. All disputes relating to these Terms will be brought solely in the state or federal courts located in the County of Middlesex in the Commonwealth of Massachusetts and you hereby consent to the exclusive jurisdiction of such state and federal courts and waive any defense of forum non conveniens. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY IN CONNECTION WITH THESE TERMS.
23. These Terms do not, and may not be construed to, create any partnership, joint venture or agency between you and Matiria. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be enforced to the maximum extent permitted by law and otherwise deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The failure of Matiria to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of Matiria’s right to assert or rely upon any such provisions, rights or remedies in that or any other instance; rather, the same will be and remain in full force and effect. You may not assign, transfer or otherwise dispose of these Terms (including any rights or obligations hereunder), and any purported assignment, transfer or other disposition will be null and void.