Terms and Conditions

Fermat’s product is used by multiple parties in different contexts. Because of this, our relationship is covered by different terms of service depending on whether you’re a brand, a creator or a consumer. Follow the links below to read our terms in detail for each party.

Last updated: September, 2022

PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY. THESE TERMS OF SERVICE APPLY TO THE SERVICES AND RESOURCES AVAILABLE ON OR ENABLED VIA THE FERMAT WIDGET (COLLECTIVELY THE “SERVICES”) WHICH ARE OWNED AND OPERATED BY FERMAT COMMERCE, INC. (“FERMAT,” “WE,” OR US”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR ACCEPTING A TRANSACTION REQUEST FERMAT’S WIDGET, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH FERMAT, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED AS A SELLER ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES.

PLEASE NOTE THAT THESE TERMS OF SERVICE ARE subject to change by Fermat in its sole discretion at any time. When changes are made, Fermat will make a new copy of the Terms of Service available at the Fermat website (“Website”). We will also update the “Last Updated” date at the top of the Terms of Service. If we make any material changes, and you have registered with us to create an Account (as defined in Section 4.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms of Service. Any changes to the Terms of Service will be effective immediately for new users of the Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Users (defined in Section 4.1 (Registering Your Account) below). Fermat may require you to provide consent to the updated Terms of Service in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

  1. SERVICES CONNECT BUYERS AND SELLERS.  Fermat facilitates the ability of consumers to buy products from brands directly through their favorite creators’ (“Creators”) websites.  We do not own or sell the items listed on Creators’ websites (“Creator Site”), so the actual contract for sale is directly between the brands or entities seeking to sell items (“Sellers”) and individuals seeking to buy products (“Buyers”) (collectively with Creators and Sellers, “Users”). While we may, in our discretion, help facilitate the resolution of disputes, Fermat has no control over and does not guarantee the existence, quality, safety or legality of items offered on the Creator Site through the Services; the truth or accuracy of Sellers’ content or listings; the ability of Sellers to sell items; the ability of Buyers to pay for items; or that a Buyer and Seller will actually complete a transaction or return an item. 
  2. FERMAT ONLY FACILITATES SALES.  Fermat does not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings provided by Buyers, items sold by Sellers, or of the integrity, responsibility, or any actions of any Users. NEITHER FERMAT NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. FERMAT AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES.
  3. USE OF THE SERVICES.  Subject to these Terms of Service, Fermat grants you a limited license to reproduce portions of the Services as described in this Section 3 for the sole purpose of using the Services to allow Buyers to order items listed on the Creator Site from Sellers. Unless otherwise specified by Fermat in a separate license, your right to use any and all the Services is subject to the Terms of Service. 
    1. Certain Restrictions.  The rights granted to you in the Terms of Service are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other the Services (including images, text, page layout or form) of Fermat; (c) you shall not use any metatags or other “hidden text” using Fermat’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Terms of Service. Fermat, its suppliers and service providers reserve all rights not granted in the Terms of Service. Any unauthorized use of any of the Services terminates the licenses granted by Fermat pursuant to the Terms of Service.
    2. Aggregated Statistics.  Notwithstanding anything to the contrary in these Terms of Service, Fermat may monitor Users’ use of the Services and collect and compile data and information related to Users’ use of the Services. Fermat may use such data and information in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Fermat and User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Fermat. You acknowledge that Fermat may compile Aggregated Statistics based on Users’ use of the Services. You agree that Fermat may use Aggregated Statistics to the extent and in the manner permitted under applicable law, including, but not limited to, for maintenance and improvement of the Services, provided that such Aggregated Statistics do not identify such User or any other personally-identifiable information regarding the User.
  4. REGISTRATION
    1. Registering Your Account.  In order to access certain features of the Services, you may be required to become a Registered User. For purposes of these Terms of Service, a “Registered User” is a user who has registered an account on the Website (“Account”).
    2. Registration Data.  In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You are responsible for correctly identifying through the Services any applicable Creators through which you would like to facilitate the ability of Buyers to enter into transactions with you. You are further responsible for correctly specifying the commission payment rates that you and such Creators have agreed to through your separate agreements with such Creators. If you provide any information that is untrue, inaccurate, not current or incomplete, or Fermat has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Fermat has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information. You agree that you shall not have more than one Account at any given time. Fermat reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Fermat, or if you have been previously banned from any of the Services.
    3. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Fermat. 
    4. Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Services.  
  5. OWNERSHIP
    1. The Services.  You agree that Fermat and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, audiovisual effects, methods of operation, moral rights, documentation, and Fermat software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Services.
    2. Trademarks. Fermat’s stylized name and all related graphics, logos, service marks and trade names used on or in connection with any the Services are the trademarks of Fermat and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
    3. Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Fermat through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Fermat has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Fermat a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Fermat’s business.
  6. FEES.  You acknowledge that in providing the Services, Fermat is acting as a Shopify Channel Developer, as defined in Shopify’s Partner Program Agreement, the current version of which is available at https://www.shopify.com/partners/terms#part-c  (“Shopify Partner Program Agreement”). By selling using the Services, you agree that any transaction directed through us will be processed by Shopify through your Shopify Merchant Store (as that term is defined in the Shopify Partner Program Agreement). By enabling transactions through the Services, you expressly agree to pay as described in this Section the applicable Creator commission payments at the rate agreed upon between you and the Creator directly through a separate agreement. You further expressly agree that any commission payments Creators are entitled to receive from you as a Seller as a result of such transactions will be routed through Fermat, and that Fermat will deduct its service fee from such commission payments before directing them to the applicable Creator. Fermat’s current service fee is 5% of each transaction. You agree that Fermat is not responsible for Shopify’s performance, and that Fermat shall not be liable for any delays or failures of Shopify’s services.
  7. USER CONDUCT.  As a condition of use, you agree not to use the Services for any purpose that is prohibited by these Terms of Service or by applicable law. You shall not (and shall not permit any third party to) take any action that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, misleading, false, defamatory, libelous, pornographic, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Fermat’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Fermat; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by these Terms of Service; (vii) manipulates the price of any listed item or interferes with Seller listings; (viii) transfers your account and username to another party without our consent; (ix) bypasses our robot exclusion hardware, interferes with the working of the Services, or imposes an unreasonable or disproportionately large load on our infrastructure; (x) uses the Services to collect, harvest, transmit, distribute or submit any information concerning any other person or entity, including without limitation photographs of others, personal contact information or credit card, debit or calling card or account numbers without their permission; (xi) takes any action that may undermine our feedback or ratings systems; (xii) breaches or circumvents any laws, third party rights or our systems, policies, or determinations of your account status; or (xiii) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
  8. NO SOLICITATION.  The Services may not be used to solicit for any other business, website or services. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to the Services facilitated through the Services. You may not use the Services to collect usernames and/or email addresses of Users by electronic or other means without the express prior written consent of Fermat.
  9. INTERACTIONS WITH OTHER USERS.  You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Fermat reserves the right, but has no obligation, to intercede in such disputes. You agree that Fermat will not be responsible for any liability incurred as the result of such interactions.
  10. RELEASE.  Fermat expressly disclaims any liability that may arise between Users of its Services. The Services is only a tool for connecting Buyers with Sellers via Creator Sites. Because Fermat is not a party to the actual contracts between Buyers and Sellers, or contracts between Creators and Sellers, in the event that you have a dispute with one or more Users, you release Fermat, its parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors, but excluding any Users (collectively, the “Fermat Parties”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. 

If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Fermat Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder.

  1. INDEMNIFICATION  
    1. By Seller.  You agree to indemnify and hold the Fermat Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, any Services; (b) your violation of these Terms of Service; (c) your violation of any rights of another party, including any Users; (d) your violation of any applicable laws, rules or regulations; or (e) your violation of the terms of any agreement you have with Creators, including any incorrect or insufficient commission payments as directed by you within the Services. Fermat reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fermat in asserting any available defenses. This provision does not require you to indemnify any of the Fermat Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this Section will survive any termination of your Account, these Terms of Service, and/or your access to the Services.
    2. By Fermat.  Fermat agrees to indemnify and hold you, as a Seller, harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any failure by Fermat to make commission payments to Creators as directed by you through the Services, subject to Fermat’s receipt of the full commission payment from you.
  2. DISCLAIMER OF WARRANTIES AND CONDITIONS
    1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE FERMAT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE OR SERVICES. 
      1. THE FERMAT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE SERVICES, AND OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL.
      2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
      3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FERMAT OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
      4. From time to time, Fermat may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Fermat’s sole discretion. The provisions of this section apply with full force to such features or tools.
    2. No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT THE FERMAT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE FERMAT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
      1. Fermat makes no warranty that the goods provided by third parties will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Fermat makes no warranty regarding the quality of any such goods, or the accuracy, timeliness, truthfulness, completeness or reliability of any content that any Sellers make available through the Services.
      2. We are not involved in the actual transaction between Buyers and Sellers. While we may help facilitate the resolution of disputes, we have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of Users’ content or listings, the ability of Sellers to sell items, the ability of Buyers to pay for items, or that Buyer or Seller will actually complete a transaction or return any items.
      3. We do not transfer legal ownership of items from the Seller to the Buyer. California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise. 
  3. LIMITATION OF LIABILITY
    1. Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE FERMAT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT FERMAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS OF SERVICE OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (e) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A FERMAT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FERMAT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. 
    2. Cap on Liability.  TO THE FULLEST EXTENT PROVIDED BY LAW, THE FERMAT PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO Fermat by you during the one-month period prior to the act, omission or occurrence giving rise to such liability; (b) $100; or (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FERMAT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FERMAT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A FERMAT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
    3. Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
    4. Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FERMAT AND YOU.
  4. TERM AND TERMINATION
    1. Term.  These Terms of Service commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with these Terms of Service.
    2. Prior Use.  Notwithstanding the foregoing, you hereby acknowledge and agree that these Terms of Service commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted these Terms of Service, and that these Terms of Service will remain in full force and effect while you use any of the Services, unless earlier terminated in accordance with these Terms of Service.
    3. No Subsequent Registration.  If your registration(s) with, or ability to access, the Services or any other Fermat community, is discontinued by Fermat due to your violation of any portion of these Terms of Service or for conduct otherwise inappropriate for the Services, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Fermat reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
  5. SERVICES ARE FOR US-BASED USERS ONLY.  The Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Fermat intends to announce such Services in your country. The Services are controlled and offered by Fermat from its facilities in the United States of America. Fermat makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
  6. THIRD-PARTY WEBSITES AND APPLICATIONS. The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Fermat. Fermat is not responsible for any Third-Party Websites or Third-Party Applications. Fermat provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website, these Terms of Service and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
  7. GENERAL PROVISIONS
    1. Electronic Communications.  The communications between you and Fermat may take place via electronic means, whether you visit the Services or send Fermat e-mails, or whether Fermat posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Fermat in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fermat provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
    2. Assignment.  These Terms of Service, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Fermat’s prior written consent, except that you may assign this Agreement without such consent to a successor in interest by way of merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or similar transaction or series of transactions. Subject to the foregoing, the terms of this Agreement will be binding upon assignees. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    3. Force Majeure.  Fermat shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. 
    4. Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to the Services, please contact us at: hello@fermatcommerce.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
    5. Limitation Period.  YOU AND FERMAT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR  AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
    6. Exclusive Venue.  You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of California in Santa Clara County for any actions, suits or proceedings arising out of or relating to this Terms of Service (and you agree not to commence any action, suit or proceeding relating thereto except in such courts). You hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of Terms of Service in the courts of the State of California or the United States of America located in the State of California in Santa Clara County, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
    7. Governing Law.  The Terms of Service and any action related thereto will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale Of Goods does not apply to the Terms of Service.  
    8. Notice.  Where Fermat requires that you provide an e-mail address, you are responsible for providing Fermat with your most current e-mail address. In the event that the last e-mail address you provided to Fermat is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms of Service, Fermat’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Fermat using the contact information described in Section 17.4. Such notice shall be deemed given when received by Fermat by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    9. Waiver.  Any waiver or failure to enforce any provision of the Terms of Service on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    10. Severability.  If any portion of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
    11. Export Control.  You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Fermat are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Fermat products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations. 
    12. Entire Agreement.  The Terms of Service are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

Last updated: September, 2022

PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY. THESE TERMS OF SERVICE APPLY TO THE FERMAT WEBSITE (“WEBSITE”) AND THE SERVICES AND RESOURCES AVAILABLE ON OR ENABLED VIA THE WEBSITE, INCLUDING THE DOWNLOADABLE WIDGET (COLLECTIVELY THE “SERVICES”) WHICH ARE OWNED AND OPERATED BY FERMAT COMMERCE, INC. (“FERMAT,” “WE,” OR US”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING FERMAT’S WIDGET, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH FERMAT, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

PLEASE NOTE THAT THESE TERMS OF SERVICE ARE subject to change by Fermat in its sole discretion at any time. When changes are made, Fermat will make a new copy of the Terms of Service available at the Website. We will also update the “Last Updated” date at the top of the Terms of Service. If we make any material changes, and you have registered with us to create an Account (as defined in Section 4.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms of Service. Any changes to the Terms of Service will be effective immediately for new users of the Website and/or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Users (defined in Section 4.1 (Registering Your Account) below). Fermat may require you to provide consent to the updated Terms of Service in a specified manner before further use of the Website and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

  1. SERVICES CONNECT BUYERS AND SELLERS.  Fermat facilitates the ability of consumers to buy products from brands directly through their favorite creators’ (“Creators”) websites.  We do not own or sell the items listed on Creators’ websites (“Creator Site”), so the actual contract for sale is directly between the brands or entities seeking to sell items (“Sellers”) and individuals seeking to buy products (“Buyers”) (collectively with Creators and Sellers, “Users”). While we may, in our discretion, help facilitate the resolution of disputes, Fermat has no control over and does not guarantee the existence, quality, safety or legality of items offered on the Creator Site through the Services; the truth or accuracy of Sellers’ content or listings; the ability of Sellers to sell items; the ability of Buyers to pay for items; or that a Buyer and Seller will actually complete a transaction or return an item. 
  2. FERMAT ONLY FACILITATES SALES.  Fermat does not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings provided by Buyers, items sold by Sellers, or of the integrity, responsibility, or any actions of any Users. NEITHER FERMAT NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. FERMAT AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES.
  3. USE OF THE SERVICES.  Subject to these Terms of Service, Fermat grants you a limited license to reproduce portions of the Services as described in this Section 3 for the sole purpose of using the Services to allow Buyers to order items listed on the Creator Site from Sellers. Unless otherwise specified by Fermat in a separate license, your right to use any and all the Services is subject to the Terms of Service. 
    1. Use of Widgets. Our widgets are software tools that you, as a Creator, may place on your Creator Site to permit Buyers to purchase products from Sellers without leaving your Creator Site (each, a “Widget”). Subject to your compliance with the Terms of Service, we hereby grant you a non-exclusive, non-transferable, non-sub-licensable, revocable license to use and display the Widget on your Creator Site for your own internal business purposes to facilitate Sellers’ purchases as described above. You may not use the Widget for any other purpose without our prior written consent, and nothing in the Terms of Service shall be deemed to grant you any right, title or interest in the Widget. In addition, you may not: (i) use the Widget (or any content displayed in connection with or through it) in any manner that would constitute an endorsement by us of any product, service, activity or brand contained on your Creator Site; (ii) place the Widget on any website that includes content that is offensive, harassing, threatening, abusive, discriminatory, vulgar, pornographic, or otherwise inappropriate, as determined by us in our sole discretion; or (iii) use the Widget in any manner that prevents the end users of your Creator Site from linking directly to our Website. We reserve the right to discontinue providing any Widget at any time, or to direct you to cease displaying, or otherwise using, any Widget for any or no reason, without liability to you or any third party.
    2. Updates.  You understand that the Services are evolving. As a result, Fermat may require you to accept updates to the Services (including the Widget) that you have installed. You acknowledge and agree that Fermat may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
    3. Certain Restrictions.  The rights granted to you in the Terms of Service are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other the Services (including images, text, page layout or form) of Fermat; (c) you shall not use any metatags or other “hidden text” using Fermat’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Terms of Service. Fermat, its suppliers and service providers reserve all rights not granted in the Terms of Service. Any unauthorized use of any of the Services terminates the licenses granted by Fermat pursuant to the Terms of Service.
    4. Aggregated Statistics.  Notwithstanding anything to the contrary in these Terms of Service, Fermat may monitor Users’ use of the Services and collect and compile data and information related to Users’ use of the Services. Fermat may use such data and information in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Fermat and User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Fermat. You acknowledge that Fermat may compile Aggregated Statistics based on Users’ use of the Services. You agree that Fermat may use Aggregated Statistics to the extent and in the manner permitted under applicable law, including, but not limited to, for maintenance and improvement of the Services, provided that such Aggregated Statistics do not identify such User or any other personally-identifiable information regarding the User.
    5. Fermat Communications.  By agreeing to these Terms of Service or using the Services, you agree to receive communications from us, including via e-mail, text message, and calls. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Fermat and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “END” TO [____] FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES.  IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD “STOPALL” TO [___] FROM THE MOBILE DEVICE RECEIVING THE MESSAGES.  HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE SERVICES.
  4. REGISTRATION
    1. Registering Your Account.  In order to access certain features of the Services, you may be required to become a Registered User. For purposes of these Terms of Service, a “Registered User” is a user who has registered an account on the Website (“Account”).
    2. Registration Data.  In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. If you provide any information that is untrue, inaccurate, not current or incomplete, or Fermat has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Fermat has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information. You agree that you shall not have more than one Account at any given time. Fermat reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Fermat, or if you have been previously banned from any of the Services.
    3. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Fermat. 
    4. Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Services.  
  5. OWNERSHIP
    1. The Services.  You agree that Fermat and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, audiovisual effects, methods of operation, moral rights, documentation, and Fermat software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Services.
    2. Trademarks. Fermat’s stylized name and all related graphics, logos, service marks and trade names used on or in connection with any the Services are the trademarks of Fermat and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
    3. Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Fermat through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Fermat has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Fermat a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Fermat’s business.
  6. FEES.  You acknowledge that in providing the Services, Fermat is acting as a Shopify Channel Developer, as defined in Shopify’s Partner Program Agreement, the current version of which is available at https://www.shopify.com/partners/terms#part-c  (“Shopify Partner Program Agreement”). By buying or selling using the Services, you agree that any transaction directed through us will be processed by Shopify through the applicable Seller’s Shopify Merchant Store (as that term is defined in the Shopify Partner Program Agreement). By enabling transactions through the Services, you expressly agree that any commission payments you are entitled to receive from the Seller as a result of such transactions will be routed through Fermat, and that Fermat will deduct its service fee from such commission payments before directing them to you. Fermat’s current service fee is 5% of each transaction. You acknowledge that Fermat is only obligated to pay commission payments which have been received from Sellers and directed to you. You agree that Fermat is not responsible for Shopify’s performance, and that Fermat shall not be liable for any delays or failures of Shopify’s services.
  7. USER CONDUCT.  As a condition of use, you agree not to use the Services for any purpose that is prohibited by these Terms of Service or by applicable law. You shall not (and shall not permit any third party to) take any action that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, misleading, false, defamatory, libelous, pornographic, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Fermat’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Fermat; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by these Terms of Service; (vii) manipulates the price of any listed item or interferes with Seller listings; (viii) transfers your account and username to another party without our consent; (ix) bypasses our robot exclusion hardware, interferes with the working of the Services, or imposes an unreasonable or disproportionately large load on our infrastructure; (x) uses the Services to collect, harvest, transmit, distribute or submit any information concerning any other person or entity, including without limitation photographs of others, personal contact information or credit card, debit or calling card or account numbers without their permission; (xi) takes any action that may undermine our feedback or ratings systems; (xii) breaches or circumvents any laws, third party rights or our systems, policies, or determinations of your account status; or (xiii) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
  8. NO SOLICITATION.  The Services may not be used to solicit for any other business, website or services. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to the Services facilitated through the Services. You may not use the Services to collect usernames and/or email addresses of Users by electronic or other means without the express prior written consent of Fermat.
  9. INTERACTIONS WITH OTHER USERS.  You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Fermat reserves the right, but has no obligation, to intercede in such disputes. You agree that Fermat will not be responsible for any liability incurred as the result of such interactions.
  10. RELEASE.  Fermat expressly disclaims any liability that may arise between Users of its Services. The Services is only a tool for connecting Buyers with Sellers via Creator Sites. Because Fermat is not a party to the actual contracts between Buyers and Sellers, in the event that you have a dispute with one or more Users, you release Fermat, its parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors, but excluding any Users (collectively, the “Fermat Parties”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Fermat Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder.

  1. Indemnification.  You agree to indemnify and hold the Fermat Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, any Services; (b) your violation of these Terms of Service; (c) your violation of any rights of another party, including any Users; or (d) your violation of any applicable laws, rules or regulations. Fermat reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fermat in asserting any available defenses. This provision does not require you to indemnify any of the Fermat Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this Section will survive any termination of your Account, these Terms of Service, and/or your access to the Services.
  2. DISCLAIMER OF WARRANTIES AND CONDITIONS
    1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE FERMAT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE OR SERVICES. 
      1. THE FERMAT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE SERVICES, AND OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL.
      2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
      3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FERMAT OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
      4. From time to time, Fermat may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Fermat’s sole discretion. The provisions of this section apply with full force to such features or tools.
    2. No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT THE FERMAT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE FERMAT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
      1. Fermat makes no warranty that the goods provided by third parties will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Fermat makes no warranty regarding the quality of any such goods, or the accuracy, timeliness, truthfulness, completeness or reliability of any content that any Sellers make available through the Services.
      2. We are not involved in the actual transaction between Buyers and Sellers. While we may help facilitate the resolution of disputes, we have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of Users’ content or listings, the ability of Sellers to sell items, the ability of Buyers to pay for items, or that Buyer or Seller will actually complete a transaction or return any items.
      3. We do not transfer legal ownership of items from the Seller to the Buyer. California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise. 
  3. LIMITATION OF LIABILITY
    1. Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE FERMAT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT FERMAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS OF SERVICE OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (e) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A FERMAT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FERMAT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. 
    2. Cap on Liability.  TO THE FULLEST EXTENT PROVIDED BY LAW, THE FERMAT PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO Fermat by you during the one-month period prior to the act, omission or occurrence giving rise to such liability; (b) $100; or (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FERMAT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FERMAT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A FERMAT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
    3. Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
    4. Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FERMAT AND YOU.
  4. TERM AND TERMINATION
    1. Term.  These Terms of Service commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with these Terms of Service.
    2. Prior Use.  Notwithstanding the foregoing, you hereby acknowledge and agree that these Terms of Service commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted these Terms of Service, and that these Terms of Service will remain in full force and effect while you use any of the Services, unless earlier terminated in accordance with these Terms of Service.
    3. No Subsequent Registration.  If your registration(s) with, or ability to access, the Services or any other Fermat community, is discontinued by Fermat due to your violation of any portion of these Terms of Service or for conduct otherwise inappropriate for the Services, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Fermat reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
  5. SERVICES ARE FOR US-BASED USERS ONLY.  The Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Fermat intends to announce such Services in your country. The Services are controlled and offered by Fermat from its facilities in the United States of America. Fermat makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
  6. THIRD-PARTY WEBSITES AND APPLICATIONS. The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Fermat. Fermat is not responsible for any Third-Party Websites or Third-Party Applications. Fermat provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website, these Terms of Service and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
  7. GENERAL PROVISIONS
    1. Electronic Communications.  The communications between you and Fermat may take place via electronic means, whether you visit the Services or send Fermat e-mails, or whether Fermat posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Fermat in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fermat provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
    2. Assignment.  These Terms of Service, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Fermat’s prior written consent, except that you may assign this Agreement without such consent to a successor in interest by way of merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or similar transaction or series of transactions. Subject to the foregoing, the terms of this Agreement will be binding upon assignees. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    3. Force Majeure.  Fermat shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. 
    4. Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to the Services, please contact us at: hello@fermatcommerce.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
    5. Limitation Period.  YOU AND FERMAT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR  AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
    6. Exclusive Venue.  You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of California in Santa Clara County for any actions, suits or proceedings arising out of or relating to this Terms of Service (and you agree not to commence any action, suit or proceeding relating thereto except in such courts). You hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of Terms of Service in the courts of the State of California or the United States of America located in the State of California in Santa Clara County, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
    7. Governing Law.  The Terms of Service and any action related thereto will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale Of Goods does not apply to the Terms of Service.  
    8. Notice.  Where Fermat requires that you provide an e-mail address, you are responsible for providing Fermat with your most current e-mail address. In the event that the last e-mail address you provided to Fermat is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms of Service, Fermat’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Fermat using the contact information described in Section 17.4. Such notice shall be deemed given when received by Fermat by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    9. Waiver.  Any waiver or failure to enforce any provision of the Terms of Service on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    10. Severability.  If any portion of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
    11. Export Control.  You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Fermat are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Fermat products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations. 
    12. Entire Agreement.  The Terms of Service are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

Last Updated: December, 2021

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THESE TERMS OF USE APPLY TO THE SERVICES AND RESOURCES AVAILABLE ON OR ENABLED VIA THE FERMAT WIDGET (COLLECTIVELY THE “SERVICES”) WHICH ARE OWNED AND OPERATED BY FERMAT COMMERCE, INC. (“FERMAT,” “WE,” OR US”). BY CLICKING ON THE “I ACCEPT” BUTTON OR INITIATING A TRANSACTION USING FERMAT’S WIDGET, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH FERMAT, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL USING OR ATTEMPTING TO USE THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES.

PLEASE NOTE THAT THESE TERMS OF USE ARE subject to change by Fermat in its sole discretion at any time. When changes are made, Fermat will make a new copy of the Terms of Use available at the Fermat website (“Website”). We will also update the “Last Updated” date at the top of these Terms of Use. Any changes to the Terms of Use will be effective immediately for new users of the Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users. Fermat may require you to provide consent to the updated Terms of Use in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

  1. SERVICES CONNECT BUYERS AND SELLERS.  Fermat facilitates the ability of consumers to buy products from brands directly through their favorite creators’ (“Creators”) websites.  We do not own or sell the items listed on Creators’ websites (“Creator Site”), so the actual contract for sale is directly between the brands or entities seeking to sell items (“Sellers”) and individuals seeking to buy products (“Buyers”) (collectively with Creators and Sellers, “Users”). While we may, in our discretion, help facilitate the resolution of disputes, Fermat has no control over and does not guarantee the existence, quality, safety or legality of items offered on the Creator Site through the Services; the truth or accuracy of Sellers’ content or listings; the ability of Sellers to sell items; the ability of Buyers to pay for items; or that a Buyer and Seller will actually complete a transaction or return an item. 
  2. FERMAT ONLY FACILITATES SALES.  Fermat does not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings provided by Buyers, items sold by Sellers, or of the integrity, responsibility, or any actions of any Users. NEITHER FERMAT NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. FERMAT AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES.
  3. USE OF THE SERVICES.  Subject to these Terms of Use, Fermat grants you a limited license to use the Services for the sole purpose of ordering items listed on the Creator Site from Sellers. Unless otherwise specified by Fermat in a separate license, your right to use any and all the Services is subject to the Terms of Use. 
    1. Aggregated Statistics.  Notwithstanding anything to the contrary in these Terms of Service, Fermat may monitor your use of the Services and collect and compile data and information related to your use of the Services. Fermat may use such data and information in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Fermat and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Fermat. You acknowledge that Fermat may compile Aggregated Statistics based on your use of the Services. You agree that Fermat may use Aggregated Statistics to the extent and in the manner permitted under applicable law, including, but not limited to, for maintenance and improvement of the Services, provided that such Aggregated Statistics do not identify such you or other contain any other personally-identifiable information.
    2. Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Services.  
  4. OWNERSHIP
    1. The Services.  You agree that Fermat and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, audiovisual effects, methods of operation, moral rights, documentation, and Fermat software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Services.
    2. Trademarks. Fermat’s stylized name and all related graphics, logos, service marks and trade names used on or in connection with any the Services are the trademarks of Fermat and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
    3. Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Fermat through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Fermat has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Fermat a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Fermat’s business.
  5. FEES.  Buyers contract directly with Sellers for the purchase of items through the Services, and Fermat is not a party to any such sales. Fermat facilitates these sales through hosting the Services. You acknowledge that in providing the Services, Fermat is acting as a Shopify Channel Developer, as defined in Shopify’s Partner Program Agreement, the current version of which is available at https://www.shopify.com/partners/terms#part-c  (“Shopify Partner Program Agreement”). By buying items using the Services, you agree that any transaction directed through us will be processed by Shopify through the applicable Seller’s Shopify Merchant Store (as that term is defined in the Shopify Partner Program Agreement). You agree that Fermat is not responsible for Shopify’s performance, and that Fermat shall not be liable for any delays or failures of Shopify’s services. You understand and agree that Fermat itself does not process the transmission of funds and thus it is not a separate and discrete service that Fermat provides in addition to the Services. 
  6. USER CONDUCT.  As a condition of use, you agree not to use the Services for any purpose that is prohibited by these Terms of Use or by applicable law. You shall not (and shall not permit any third party to) take any action that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, misleading, false, defamatory, libelous, pornographic, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Fermat’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Fermat; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by these Terms of Use; (vii) manipulates the price of any listed item or interferes with Seller listings; (viii) transfers your account and username to another party without our consent; (ix) bypasses our robot exclusion hardware, interferes with the working of the Services, or imposes an unreasonable or disproportionately large load on our infrastructure; (x) uses the Services to collect, harvest, transmit, distribute or submit any information concerning any other person or entity, including without limitation photographs of others, personal contact information or credit card, debit or calling card or account numbers without their permission; (xi) breaches or circumvents any laws, third party rights or our systems, policies, or determinations of your account status; or (xii) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
  7. INTERACTIONS WITH OTHER USERS.  You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Fermat reserves the right, but has no obligation, to intercede in such disputes. You agree that Fermat will not be responsible for any liability incurred as the result of such interactions.
  8. RELEASE.  Fermat expressly disclaims any liability that may arise between Users of its Services. The Services is only a tool for connecting Buyers with Sellers via Creator Sites. Because Fermat is not a party to the actual contracts between Buyers and Sellers, in the event that you have a dispute with one or more Users, you release Fermat, its parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors, but excluding any Users (collectively, the “Fermat Parties”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Fermat Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder.

  1. INDEMNIFICATION.  You agree to indemnify and hold the Fermat Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, any Services; (b) your violation of these Terms of Use; (c) your violation of any rights of another party, including any Users; or (d) your violation of any applicable laws, rules or regulations. Fermat reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fermat in asserting any available defenses. This provision does not require you to indemnify any of the Fermat Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this Section will survive any termination of these Terms of Use and/or your access to the Services.
  2. DISCLAIMER OF WARRANTIES AND CONDITIONS
    1. As Is. FERMAT IS PROVIDING THE SERVICES ON AN “AS IS” BASIS FOR USE AT YOUR OWN RISK. FERMAT DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. 
    2. No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT THE FERMAT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE FERMAT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
      1. Fermat makes no warranty that the goods provided by third parties will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Fermat makes no warranty regarding the quality of any such goods, or the accuracy, timeliness, truthfulness, completeness or reliability of any content that any Sellers make available through the Services.
      2. We are not involved in the actual transaction between Buyers and Sellers. While we may help facilitate the resolution of disputes, we have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of Users’ content or listings, the ability of Sellers to sell items, the ability of Buyers to pay for items, or that Buyer or Seller will actually complete a transaction or return any items.
      3. We do not transfer legal ownership of items from the Seller to the Buyer. California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise. 
  3. LIMITATION OF LIABILITY. IN NO EVENT WILL FERMAT BE LIABLE FOR ANY DAMAGES RELATING TO ANY LOSS OF SYSTEM AVAILABILITY, LOSS OF COMPUTER RUN TIME, LOST PROFITS, COST OF COVER OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SERVICES, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY EVEN IF FERMAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF FERMAT RELATED TO THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (U.S. $100).  YOU AGREE THAT THIS IS A REASONABLE ALLOCATION OF RISK.
  4. SERVICES ARE FOR US-BASED USERS ONLY.  The Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Fermat intends to announce such Services in your country. The Services are controlled and offered by Fermat from its facilities in the United States of America. Fermat makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
  5. THIRD-PARTY WEBSITES AND APPLICATIONS. The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Fermat. Fermat is not responsible for any Third-Party Websites or Third-Party Applications. Fermat provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website, these Terms of Use and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
  6. GENERAL PROVISIONS
    1. Electronic Communications.  The communications between you and Fermat may take place via electronic means, whether you visit the Services or send Fermat e-mails, or whether Fermat posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Fermat in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fermat provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
    2. Assignment.  These Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Fermat’s prior written consent. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    3. Force Majeure.  Fermat shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. 
    4. Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to the Services, please contact us at: hello@fermatcommerce.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
    5. Exclusive Venue.  You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of California in Santa Clara County for any actions, suits or proceedings arising out of or relating to this Terms of Use (and you agree not to commence any action, suit or proceeding relating thereto except in such courts). You hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of Terms of Use in the courts of the State of California or the United States of America located in the State of California in Santa Clara County, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
    6. Governing Law.  The Terms of Use and any action related thereto will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale Of Goods does not apply to the Terms of Use.  
    7. Waiver.  Any waiver or failure to enforce any provision of the Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    8. Severability.  If any portion of these Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
    9. Export Control.  You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Fermat are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Fermat products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations. 
    10. Entire Agreement.  The Terms of Use are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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