Thank you for using Fimio! We're happy you're here. Please read this Terms of Service agreement carefully before accessing or using Fimio. Because it is such an important contract between us and our users, we have tried to make it as clear as possible. For your convenience, we have presented these terms in a short non-binding summary followed by the full legal terms.

Fimio Terms of Service

Effective date: June 18, 2024

A. Definitions

Short version: We use these basic terms throughout the agreement, and they have specific meanings. You should know what we mean when we use each of the terms. There's not going to be a test on it, but it's still useful information.

1. An "Account" represents your legal relationship with Fimio. A “Personal Account” represents an individual User’s authorization to log in to and use the Service and serves as a User’s identity on Fimio. “Organizations” are shared workspaces that may be associated with a single entity or with one or more Users where multiple Users can collaborate across many projects at once. A Personal Account can be a member of any number of Organizations.
2. The “Agreement” refers, collectively, to all the terms, conditions, notices contained or referenced in this document (the “Terms of Service” or the "Terms") and all other operating rules, policies and procedures that we may publish from time to time on the Website. 
3. “Content” refers to content featured or displayed through the Website, including without limitation code, text, data, articles, images, photographs, graphics, software, applications, packages, designs, features, and other materials that are available on the Website or otherwise available through the Service. "Content" also includes Services. “User-Generated Content” is Content, written or otherwise, created or uploaded by our Users. "Your Content" is Content that you create or own.
4. “Fimio,” “We,” and “Us” refer to Fimio, Inc., as well as our affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees.
5. The “Service” refers to the applications, software, products, and services provided by Fimio.
6. “The User,” “You,” and “Your” refer to the individual person, company, or organization that has visited or is using the Website or Service; that accesses or uses any part of the Account; or that directs the use of the Account in the performance of its functions. A User must be at least 13 years of age. 
7. The “Website” refers to Fimio’s website located at https://www.fimio.xyz and all content, services, and products provided by Fimio at or through the Website. It also refers to Fimio-owned subdomains of Fimio.com. Occasionally, websites owned by Fimio may provide different or additional terms of service. If those additional terms conflict with this Agreement, the more specific terms apply to the relevant page or service.

B. Account Terms

Short version: Personal Accounts and Organizations have different administrative controls; a human must create your Account; you must be 13 or over; you must provide a valid email address. You alone are responsible for your Account and anything that happens while you are signed in to or using your Account. You are responsible for keeping your Account secure.

1. Account Controls

• Users. Subject to these Terms, you retain ultimate administrative control over your Personal Account and the Content within it.
• Organizations. The "owner" of an Organization that was created under these Terms has ultimate administrative control over that Organization and the Content within it. Within the Service, an owner can manage User access to the Organization’s data and projects. An Organization may have multiple owners, but there must be at least one Personal Account designated as an owner of an Organization. If you are the owner of an Organization under these Terms, we consider you responsible for the actions that are performed on or through that Organization.

2. Required Information

You must provide a valid email address in order to complete the signup process. Any other information requested, such as your real name, is optional, unless you are accepting these terms on behalf of a legal entity (in which case we need more information about the legal entity) or if you opt for a paid Account, in which case additional information will be necessary for billing purposes.

3. Account Requirements

We have a few simple rules for Personal Accounts on Fimio's Service.

• You must be a human to create an Account. Accounts registered by "bots" or other automated methods are not permitted. 
• You must be age 13 or older. While we are thrilled to work with all people, we must comply with United States law. Fimio does not target our Service to children under 13, and we do not permit any Users under 13 on our Service. If we learn of any User under the age of 13, we will terminate that User’s Account immediately. If you are a resident of a country outside the United States, your country’s minimum age may be older; in such a case, you are responsible for complying with your country’s laws.
• Your login may only be used by one person — i.e., a single login may not be shared by multiple people. A paid Organization may only provide access to as many Personal Accounts as your separate agreement with us allows.
• You agree not to create an Account if we have previously removed your Account or previously banned you from any of our Services, unless we provide you written consent otherwise.
• You may not use Fimio in violation of export control or sanctions laws of the United States or any other applicable jurisdiction. You may not use Fimio if you are or are working on behalf of a Specially Designated National (SDN) or a person subject to similar blocking or denied party prohibitions administered by a U.S. government agency.  Fimio may allow persons in certain sanctioned countries or territories to access certain Services pursuant to U.S. government authorizations.  

4. Account Security

You are responsible for keeping your Account and contents secure while you use our Service. 

• You are responsible for all content posted and activity that occurs under your Account.
• You are responsible for maintaining the security of your Account and your third party accounts (like GitHub or GitLab) needed to login. Fimio cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
• You will promptly notify Fimio if you become aware of any unauthorized use of, or access to, our Service through your Account.

5. Additional Terms

Certain portions of the Services may display, include or make available content, data, information, applications, software or materials from third parties, including other users (“Third Party Materials”). By using the Services, you acknowledge and agree that Fimio is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third party services, Third Party Materials or for any other materials, products or services of third parties. Third Party Materials are provided solely as a convenience to you. Your access and use of Third Party Materials may be governed by additional terms and conditions of the provider of such Third Party Materials, which you agree to comply with. 

C. Acceptable Use

Short version: Fimio hosts a wide variety of collaborative projects from all over the world, and that collaboration only works when our users are able to work together in good faith. While using the service, you must follow the terms of this section, which include some restrictions on content you can post, conduct on the service, and other limitations. In short, be excellent to each other.

We hereby permit you to use the Services, provided that you comply with this Agreement. If any software, content or other materials owned or controlled by us are distributed to you as part of your use of the Services, we hereby grant you, a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content and materials provided to you as part of the Services, in each case for the sole purpose of enabling you to use the Services as permitted by this Agreement. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that we, in our sole discretion, may elect to take. Your use of the Services must comply with the technical documentation, usage guidelines and other documentation on the Services. Notwithstanding anything herein to the contrary, we or other parties make may available certain elements of the Services under an open-source license (the “Open Source Elements”), in which case your use of such Open Source Elements will be governed by such open-source licenses and these Terms do not override or supersede the terms of those licenses with respect to such Open Source Elements.

Your use of the Website and Service must not violate any applicable laws, including copyright or trademark laws, export control or sanctions laws, or other laws in your jurisdiction. You are responsible for making sure that your use of the Service is in compliance with laws and any applicable regulations. You agree that you will abide by our Code of Conduct. Without limiting the foregoing, you agree that you may not do any of the following in connection with your use of the Services, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so (or as otherwise permitted in any open-source license for any Open Source Elements):

• Duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
• Use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image or other proprietary notion displayed on or through the Services;
• Use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
• Use the Services to create or develop any competing products or services;
• Access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;
• Attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
• Circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
• Use any robot, spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts, “mines,” scrapes, extracts, or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
• Introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
• Violate the terms and conditions of any Third Party Materials or Open Source Elements;
• violate any applicable law or regulation in connection with your access to or use of the Services; or
• Access or use the Services in any way not expressly permitted by this Agreement.

D. User-Generated Content

Short version: You own the content you create, but you allow us certain rights to it, so that we can display and share the content you post. You still have control over your content, and responsibility for it, and the rights you grant us are limited to those we need to provide the service. We have the right to remove content or close Accounts if we need to.

1. Responsibility for User-Generated Content

You may create or upload User-Generated Content while using the Service. You are solely responsible for the content of, and for any harm resulting from, any User-Generated Content that you post, upload, link to or otherwise make available via the Service, regardless of the form of that Content. We are not responsible for any public display or misuse of your User-Generated Content.

2. Fimio May Remove Content

We have the right to refuse or remove any User-Generated Content that, in our sole discretion, violates any laws or this Agreement. 

3. Ownership of Content, and Right to Post

You retain ownership of and responsibility for Your Content. You agree that you are responsible for any Content you post; that you will only submit Content that you have the right to post and grant the rights granted herein for Your Content; and that you will fully comply with any third party licenses relating to Content you post. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above. To the fullest extent permitted by applicable law, you irrevocably waive any and all so-called “moral rights” or “droit moral” that may exist in or in connection with Your Content, and we reserve the right, and have absolute discretion, to remove, screen, edit, or delete any of Your Content at any time, for any reason, and without notice.

4. License Grant to Us

We need the legal right to do things like host Your Content, publish it, and share it. You grant us and our legal successors the right to access, use, host, store, archive, parse, reproduce, publish, distribute and display Your Content, and make incidental copies, but solely as required to provide, operate, improve, market and promote the Service. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case Your Content is something like music or video. You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as Your Content is stored with us), and include a right for us to make Your Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Services, solely for the purpose of providing such Services, and to otherwise permit access to or disclose Your Content to third parties if we determine such access is necessary to comply with our legal obligations.

5. License Grant to Other Users

Any User-Generated Content you post publicly, including comments, and contributions to other Users' build projects, may be viewed by others. By setting your build projects to be viewed publicly, you agree to allow others to view and "fork" your builds (this means that others may make their own copies of Content from your build projects in builds they control).

If you set your pages and build projects to be viewed publicly, you grant each User of Fimio a nonexclusive, worldwide license to use, display, and perform Your Content through the Fimio Service and to reproduce Your Content solely on Fimio as permitted through Fimio's functionality (for example, through forking). If you are uploading Content you did not create or own, you are responsible for ensuring that the Content you upload is licensed under terms that grant these permissions to other Fimio Users.

6. Notice of Infringement – DMCA (Copyright) Policy

If you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Services have been copied in a way that constitutes copyright infringement, you may submit a notification to our copyright agent in accordance with 17 USC 512(c) of the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:

• identification of the copyrighted work that is claimed to be infringed;
• identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
• information for our copyright agent to contact you, such as an address, telephone number and e-mail address;
• a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; 
• a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
• the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.

Notices of copyright infringement claims should be sent by e-mail to dmca@fimio.xyz. If you’d prefer to physically mail a claim, please note that physical claims may take longer to respond to than electronic copies. If you’d like to send a physical claim, please mail to: Fimio, Inc., Attn: OCOO, 389 Oakland Ave, Oakland, CA 94611.  It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.

A user of the Services who has uploaded or posted materials identified as infringing as described above may supply a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a counter-notification, we may reinstate the posts or material in question, in our sole discretion. To file a counter-notification with us, you must provide a written communication (by regular mail or by email) that sets forth all of the items required by sections 512(g)(2) and (3) of the DMCA. Please note that you will be liable for damages if you materially misrepresent that content or an activity is not infringing the copyrights of others

E. Private Build Projects

Short version: We treat the content of private build projects as confidential, and we only access it as described in our Privacy Policy—for security purposes, to assist the workspace owner with a support matter, to maintain the integrity of the Service, to comply with our legal obligations, if we have reason to believe the contents are in violation of the law, or with your consent.

1. Control of Private Build Projects

Accounts have access to private build projects, which allow the User to control access to Content.

2. Confidentiality of Private Build Projects

Fimio considers the contents of private build projects to be confidential to you. Fimio will use reasonable measures designed to protect the contents of private build projects from unauthorized use, access, or disclosure.

3. Access

Fimio personnel may access the content of your private build projects in the situations described in our Privacy Policy. Additionally, we may be compelled by law to disclose the contents of your private build projects. 

F. Ownership

Short version: We own the Service and all of our content. In order for you to use our content, we give you certain rights to it, but you may only use our content in the way we have allowed.

1. Fimio's Rights to Content

Fimio and our licensors, vendors, agents, and/or our content providers retain ownership of all intellectual property rights of any kind related to the Website and Service, including their “look and feel”. We reserve all rights that are not expressly granted to you under this Agreement or by law, including, without limitation, the exclusive right to create derivative works. Fimio’s name, trademarks, and all related names, logos, product and service names, designs and slogans are trademarks of Fimio or its affiliates or licenses. Other names, logos, products and services names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. 

2. Ownership of Feedback

We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of Fimio, and Fimio may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Fimio any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and other intellectual property right) that you may have in and to any and all Feedback.

G. Beta Offerings

Short version: Beta Offerings may not be supported or may change at any time. You may receive confidential information through those programs that must remain confidential while the program is private.

We may, in our sole discretion, include certain test or beta features or products in the Services (“Beta Offerings”) as we may designate from time to time. The Beta Offerings are provided on an “as is” basis and may contain errors, defects, bugs, or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. You acknowledge and agree that all use of any Beta Offering is at your sole risk.  Beta Offerings may not be supported and may be changed at any time without notice. You agree that once you use a Beta Offering, your content or data may be affected such that you may be unable to revert back to a prior non-beta version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta Offering back to the prior non-beta version. If we provide you any Beta Offerings on a closed beta or confidential basis, we will notify you of such as part of your use of the Beta Offerings. For any such confidential Beta Offerings, you agree to not disclose, divulge, display, or otherwise make available any of the Beta Offerings without our prior written consent

H. Payment

Short version: You are responsible for any fees associated with your use of Fimio. We are responsible for communicating those fees to you clearly and accurately, and letting you know well in advance if those prices change.

1. Pricing

Our pricing and payment terms are available upon request. If you agree to a subscription price, that will remain your price for the duration of the payment term; however, prices are subject to change at the end of a payment term.

2. Upgrades, Downgrades, and Changes

• We will immediately bill you when you upgrade from the free plan to any paying plan.
• If you change from a monthly billing plan to a yearly billing plan, Fimio will bill you for a full year at the next monthly billing date.
• If you upgrade to a higher level of service, we will bill you for the upgraded plan immediately.
• You may change your level of service at any time by contacting us. If you choose to downgrade your Account, you may lose access to Content, features, or capacity of your Account. Please see our section on Cancellation for information on getting a copy of that Content.

3. Billing Schedule; No Refunds

Payment Based on Plan. For monthly or yearly payment plans, the Service is billed in advance on a monthly or yearly basis respectively and is non-refundable. There will be no refunds or credits for partial months of service, downgrade refunds, or refunds for months unused with an open Account; however, the service will remain active for the length of the paid billing period. In order to treat everyone equally, no exceptions will be made.

Payment Based on Usage. Some Service features are billed based on your usage. A limited quantity of these Service features may be included in your plan for a limited term without additional charge. If you choose to purchase paid Service features beyond the quantity included in your plan, you pay for those Service features based on your actual usage in the preceding month. Monthly payment for these purchases will be charged on a periodic basis in arrears. 

Invoicing For invoiced Users, User agrees to pay the fees in full, up front without deduction or setoff of any kind, in U.S. Dollars. User must pay the fees within thirty (30) days of the Fimio invoice date. Amounts payable under this Agreement are non-refundable, except as otherwise provided in this Agreement. If User fails to pay any fees on time, Fimio reserves the right, in addition to taking any other action at law or equity, to (i) charge interest on past due amounts at 1.0% per month or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery, and (ii) terminate the applicable order form. User is solely responsible for all taxes, fees, duties and governmental assessments that are imposed or become due in connection with this Agreement.

4. Authorization

By agreeing to these Terms, you are giving us permission to charge your approved method(s) of payment for fees that you authorize for Fimio.

5. Responsibility for Payment

You are responsible for all fees, including taxes, associated with your use of the Service. By using the Service, you agree to pay Fimio any charge incurred in connection with your use of the Service.  If you dispute the matter, contact fin You are responsible for providing us with a valid means of payment for paid Accounts. Free Accounts are not required to provide payment information.

I. Cancellation and Termination

Short version: You may close your Account at any time. 

1. Account Cancellation

It is your responsibility to properly cancel your Account with Fimio. You can cancel your Account at any time by contacting us directly at hello@fimio.xyz. 

2. Fimio May Terminate

Fimio has the right to suspend or terminate your access to all or any part of the Website or Services at any time, with or without cause, with or without notice, effective immediately. Fimio reserves the right to refuse service to anyone for any reason at any time.

3. Survival

All provisions of this Agreement which, by their nature, should survive termination will survive termination — including, without limitation: ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

J. Communications with Fimio

Short version: We use email and other electronic means to stay in touch with our users.

1. Electronic Communication Required

For contractual purposes, you (1) consent to receive communications from us in an electronic form via the email address you have submitted or via the Service; and (2) agree that all Terms of Service, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that those communications would satisfy if they were on paper. This section does not affect your non-waivable rights.

2. Legal Notice to Fimio Must Be in Writing

Communications made through email or Fimio Support's messaging system will not constitute legal notice to Fimio or any of its officers, employees, agents or representatives in any situation where notice to Fimio is required by contract or any law or regulation. Legal notice to Fimio must be in writing.

3. No Phone Support

Fimio does not offer telephone support.

K. Disclaimer of Warranties

Short version: We provide our service as is, and we make no promises or guarantees about this service. Please read this section carefully; you should understand what to expect.

Fimio provides the Website and the Service “as is” and “as available,” without warranty of any kind. WITHOUT LIMITING THIS, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE WEBSITE AND THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT.

Fimio does not warrant that the Service will meet your requirements; that the Service will be uninterrupted, timely, secure, or error-free; that the information provided through the Service is accurate, reliable or correct; that any defects or errors will be corrected; that the Service will be available at any particular time or location; or that the Service is free of viruses or other harmful components. You assume full responsibility and risk of loss resulting from your downloading and/or use of files, information, content or other material obtained from the Service.

THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN SECTION L (Limitation of Liability) BELOW. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES.

L. Limitation of Liability

Short version: We will not be liable for damages or losses arising from your use or inability to use the service or otherwise arising under this agreement. Please read this section carefully; it limits our obligations to you.

TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE (A) FOR INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER  DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE WEBSITE OR SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THE AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES, WEBSITE OR THIS AGREEMENT AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES OR WEBSITE.  OUR TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID US, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

M. Release and Indemnification

Short version: You are responsible for your use of the service. If you harm someone else or get into a dispute with someone else, we will not be involved.

If you have a dispute with one or more Users, you agree to release Fimio from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.

You agree to indemnify us, defend us, and hold us harmless from and against any and all claims, liabilities, and expenses, including attorneys’ fees, arising out of (1) your use of the Website and the Service, including but not limited to your violation of this Agreement, (2) your violation of any rights of any third party, (3) Your Content or (4) your negligence or willful misconduct. If you are obligated to indemnify us hereunder, then you agree that we will have the right, in our sole discretion, to control any action or proceeding and to determine whether we wish to settle and, if so, on what terms, and you agree to fully cooperate with us in the defense or settlement of such claim.

N. Arbitration and Class Action Waiver

Short Version: Unless you exercise your right to opt out, you will resolve all claims and disputes first through an informal dispute resolution process and, if that does not resolve the issue, on an individual basis through binding arbitration. This means that you cannot bring a class action suit against us in the event of a claim or dispute.

PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

1. Informal Process First

You and Fimio agree that in the event of any dispute, either party will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action, after first allowing the receiving party 30 days in which to respond. Both you and Fimio agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.

2. Arbitration Agreement and Class Action Waiver

After the informal dispute resolution process, any remaining dispute, controversy or claim (collectively, “Claim”) relating in any way to Fimio’s services and/or products, including the Services and Website, and any use or access or lack of access thereof, will be resolved by arbitration, including the threshold questions of arbitrability of the Claim. You and Fimio agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Because your contract with Fimio, these Terms, and this arbitration agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply substantive law consistent with the FAA and the applicable statute of limitations or conditions precedent to suit. Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under this Agreement will take place on an individual basis - class arbitrations and class actions are not permitted. You understand that by agreeing to this Agreement, you and Fimio are each waiving the right to trial by jury or to participate in a class action or class arbitration.

3. Exceptions

Notwithstanding the foregoing, you and Fimio agree that the following types of disputes will be resolved in a court of proper jurisdiction: (a) disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual dispute and not as a class, representative, or consolidated action or proceeding; (b) disputes or claims where the sole form of relief is injunctive relief (including public injunctive relief); or (c) intellectual property disputes.

4. Costs of Arbitration

Payment of all filing, administration, and arbitrator costs and expenses will be governed by the JAMS Rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, Fimio will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below).

Fees and costs may be awarded as provided pursuant to applicable law. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in the Federal Rules of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules. In that case, you agree to reimburse Fimio for all monies previously disbursed by it that are otherwise your obligation to pay under the applicable rules. If you prevail in the arbitration and are awarded an amount that is less than the last written settlement amount offered by Fimio before the arbitrator was appointed, Fimio will pay you the amount it offered in settlement. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

5. Opt-Out

You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to hello@fimio.xyz. The notice must be sent to Fimio within 30 days of your first registering to use the Services or agreeing to these Terms; otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with these Terms. If you opt-out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. If you opt-out of these arbitration provisions, Fimio also will not be bound by them.

6. Waiver of Right to Bring Class Action and Representative Claims

To the fullest extent permitted by applicable law, you and Fimio each agree that any proceeding to resolve any Claim will be brought and conducted ONLY IN THE RESPECTIVE PARTY’S INDIVIDUALS CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”). You and Fimio AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION. YOU AND FIMIO EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. If the Claim is subject to arbitration, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. Further, you and Fimio agree that the ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION. For the avoidance of doubt, however, you can seek public injunctive relief to the extent authorized by law and consistent with the exceptions clause above. 

O. Changes to These Terms

Short version: We want our users to be informed of important changes to our terms, but some changes aren't that important — we don't want to bother you every time we fix a typo. So while we may modify this agreement at any time, we will notify users of any material changes.

We reserve the right, at our sole discretion, to amend these Terms of Service at any time and will update these Terms of Service in the event of any such amendments. We will use reasonable efforts to notify our Users of material changes to this Agreement, such as price increases, at least 30 days prior to the change taking effect by posting a notice on our Website or sending email to the primary email address specified in your Fimio account. Customer's continued use of the Service after those 30 days constitutes agreement to those revisions of this Agreement. For any other modifications, your continued use of the Website constitutes agreement to our revisions of these Terms of Service. 

We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website or Service (or any part of it) with or without notice.

P. Miscellaneous

1. Governing Law

Except to the extent applicable law provides otherwise, this Agreement between you and Fimio and any access to or use of the Website or the Service are governed by the federal laws of the United States of America and the laws of the State of California, without regard to conflict of law provisions. The proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in Section N of these Terms, or if arbitration does not apply, then the state and federal  courts located in the City of Oakland and County of Alameda, California.

2. Non-Assignability

Fimio may assign or delegate these Terms of Service, in whole or in part, to any person or entity at any time with or without your consent, including the license grant in Section D.4. You may not assign or delegate any rights or obligations under the Terms of Service without our prior written consent, and any unauthorized assignment and delegation by you is void.

3. Privacy Policy

Our Privacy Policy describes how we handle the information you provide to use when you use the Services. For an explanation of our privacy practices, please visit our Privacy Policy located at http://fimio.xyz/privacy-policy.

4. Section Headings and Summaries

Throughout this Agreement, each section includes titles and brief summaries of the following terms and conditions. These section titles and brief summaries are not legally binding.

5. Severability, No Waiver, and Survival

If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed to reflect the parties’ original intent. The remaining portions will remain in full force and effect. Any failure on the part of Fimio to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.

6. Amendments; Complete Agreement

This Agreement may only be modified by a written amendment signed by an authorized representative of Fimio, or by the posting by Fimio of a revised version in accordance with Section N. Changes to These Terms. These Terms of Service, represent the complete and exclusive statement of the agreement between you and us; provided that if your Organization has entered into a separate agreement with us related to the Services, such separate agreement also forms part of your agreement with us with respect to your use of the Services and shall supersede and control to the extent of any conflict between such separate agreement and these Terms. 

7. Questions

Questions about the Terms of Service? Contact us at hello@fimio.xyz.