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Terms of Service

Last updated – December 2020

Please read these terms of service (“Terms”) carefully. These Terms are between you and Foundation Labs, Inc. (“Foundation”) concerning your use of Foundation’s site, currently located at withfoundation.com (the “Site”).

By using the Site, you agree to these Terms.

What is Foundation?

Foundation is a platform for artists, brands, and designers (“Creators”) to sell limited edition, dynamically priced products to collectors (“Collectors”). On Foundation, Creators are able to sell products via fungible tokens that represent a redemption right for a physical product (“Physical Products”). Further, Creators are able to sell digital artwork that is represented by a non-fungible token (“Digital Artwork,” collectively “Products”). Both Physical Products and Digital Artwork are represented on the Ethereum blockchain that provides an immutable ledger of all transactions that occur on Foundation.

While Foundation offers a marketplace for the Products, it does not buy or sell Products or engage in activity that would directly impact the price. Foundation cannot guarantee delivery of Physical Products from Creators or that you will be able to sell any Product for a price above the purchase price. The price of Products are subject to market forces, meaning that greater demand will increase the price, and vice versa. Foundation is a marketplace and cannot make any representation or guarantee that Creators will achieve any particular outcome as the result of listing their Products on Foundation. While Foundation may leverage its marketing team to feature Creators, it is under no obligation to do so. While the market for Products operates like a stock exchange, Foundation is not an actual stock exchange.

How do I Use Foundation?

You can browse Foundation without registering for an account, but to purchase a Product you must register by creating a Foundation account or connecting a browser extension called MetaMask. MetaMask is an electronic wallet, which allows you to purchase (either directly via Coinbase if you are in the United States, or via other third-party sites), store, and engage in transactions using the native Ethereum cryptocurrency, ETH. All transactions on Foundation use the Ethereum-based cryptocurrency, DAI.

To purchase a Product and receive a Product, you will need to register by entering your email and setting a password or connecting your MetaMask. If you purchase a Physical Product that is not completed, you will be notified when it is completed. When the Physical Product is completed, you will be able to redeem the token and then the Product will be shipped to you.

What are the Rules for Using Foundation?

When using Foundation do not:

  • Manipulate the price of Products via bidding on their own items, preventing bidding in anyway, or using Foundation to conceal economic activity.  

  • Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Site except as expressly authorized herein, without Foundation’s express prior written consent.

  • Post, transmit or otherwise make available through or in connection with the Site any virus, worm, Trojan horse, Easter egg, time bomb, spyware, scareware, or malware.  

  • Use the Site to transmit through or in connection with the Site, any spam, or other unsolicited communications.

  • Interfere with or disrupt the operation of the Site.

  • Restrict or inhibit any other person from legal use of the Site.

  • Reverse engineer, decompile or disassemble any portion of the Site, except to the extent such restriction is expressly prohibited by applicable law.

  • Remove any copyright, trademark or other proprietary rights notice from the Site.

  • Frame or mirror any portion of the Site, or otherwise incorporate any portion of the Site into any product or service, without Foundation’s express prior written consent.

  • Systematically download and store Site content.

  • Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Site content, or reproduce or circumvent the navigational structure or presentation of the Site, without Foundation’s express prior written consent.

  • Activity which would violate, or assist in violation of, any law, statute, ordinance, or regulation, sanctions programs administered in any jurisdiction the Site operate; publish, distribute or disseminate any unlawful material or information.

What Type of Products are Available on Foundation?

Physical Products

Physical Products are represented by a fungible Ethereum token. When you purchase a Physical Product on Foundation, you will receive a cryptocurrency token represented which can be traded with other Foundation users or redeemed for the product itself.

Digital Artwork

Digital Artwork is represented by a non-fungible Ethereum token. When you purchase a Digital Artwork on Foundation, you will receive a cryptocurrency token of the Digital Artwork that can be enjoyed or traded.

How do I become a Creator?

Foundation verifies all Creators and only allows certain Creators to sell their Products in its marketplace. Creators seeking an invitation to create, and list Products on Foundation must submit a request here. Foundation has discretion in curating its marketplace for Products and makes no guarantees or promises that any Creators will be approved.

What are the Terms for Creators?

  • Creators expressly represent and warrant that their Product is an original creation. Creators are prohibited from selling Products that consist of unlicensed or unauthorized copyrighted content, including any imagery, design, audio, video, human likeness, or other unoriginal content not created by the Creator, not authorized for use by the Creator, not in the public domain, or otherwise without a valid claim of fair use.

  • Creator expressly represents and warrants that their Products listed on Foundation contain only original content otherwise authorized for use by the Creator. To the extent a Product contains unoriginal content, including content from Products by other Creators, the Creator further represents and warrants that it has permission to incorporate the unoriginal content.

  • Creator represents and warrants that the display or performance of the Product for sale on the Platform is not a violation of any agreement, contract, or obligation owed to a third-party.

  • Failure to abide by these Terms may result in, without limitation, suspension or deletion of the Creator’s account, revoking the Creator’s permissions to Foundation, delisting the Creator’s items on the Site, or paying monetary damages.

  • Foundation has the unilateral authority and discretion to remove, suspend, or revoke Creators’ access to the Foundation.

  • Creator hereby agrees to indemnify Foundation and be held liable for any claim against Foundation arising out of the Creator’s breach of these Terms. Creator hereby releases and forever discharges Foundation from any damages or causes of action resulting from a sale of any of the Creator’s listed Products occurring after the Creator’s breach of these Terms.

What are Creators’ Rights to Digital Artwork?

  • The Creator reserves all exclusive copyrights to Digital Artwork, including but not limited to the right to reproduce, to prepare derivative works, to display, to perform, and to distribute the Products.

  • The Creator owns all legal right, title, and interest in all intellectual property rights to creative Digital Artwork underlying Products minted by the Creator on the Platform, including but not limited to copyrights and trademarks. As the copyright owner, the Creator enjoys several exclusive rights to the Digital Artwork, including the right to reproduce, the right to prepare derivative Digital Artwork, the right to distribute, and the right to display or perform the Art.

  • Products are unique, meaning that there should only ever be one digital token for a given Digital Artwork. Creators hereby acknowledges, understands, and agrees that selling a Digital Artwork on Foundation constitutes an express representation, warranty, and covenant that the Creator has not, will not, and will not cause another to sell, tokenize, or create another cryptographic token representing a digital collectible for the same Digital Artwork, excepting, without limitation, the Creator’s ability to sell, tokenize, or create a cryptographic token or other digital asset representing a legal, economic, or other interest relating to any of the exclusive rights belonging to the Creator under copyright law.

  • The Creator hereby acknowledges, understands, and agrees that launching a Digital Artwork on Foundation constitutes an express and affirmative grant to Foundation, its affiliates and successors a non-exclusive, world-wide, assignable, sublicensable, perpetual, and royalty-free license to make copies of, display, perform, reproduce, and distribute the Digital Artwork on any media whether now known or later discovered for the broad purpose of operating, promoting, sharing, developing, marketing, and advertising the Site, or any other purpose related to Foundation, including without limitation, the express right to: (i) display or perform the Digital Artwork on the Site, a third party platform, social media posts, blogs, editorials, advertising, market reports, virtual galleries, museums, virtual environments, editorials, or to the public; (ii) create and distribute digital or physical derivative Digital Artwork based on the Digital Artwork; (iii) indexing the Digital Artwork in electronic databases, indexes, catalogues; and (iv) hosting, storing, distributing, and reproducing one or more copies of the Digital Artwork within a distributed file keeping system, node cluster, or other database (e.g., IPFS) or causing, directing, or soliciting others to do so.

  • Creators irrevocably release, acquit, and forever discharge Foundation and its subsidiaries, affiliates, officers, and successors of any liability for direct or indirect copyright or trademark infringement for Foundation use of a Digital Artwork in accordance with these Terms.

What are Collectors’ Rights to a Digital Artwork?

  • Collectors receive a cryptographic token representing the Creator’s creative work as a piece of property, but do not own the creative work itself. Collectors may show off their ownership of collected Products by displaying and sharing the Product, but Collectors do not have any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights to the Product, excepting the limited license granted by these Terms to Digital Artwork.

  • Collectors receive a limited, worldwide, non-assignable, non-sublicensable, royalty-free license to display the Digital Artwork legally owned and properly obtained by the Collector.

  • The Collector’s limited license to display the Digital Artwork, includes, but is not limited to, the right to display the Digital Artwork privately or publicly: (i) for the purpose of promoting or sharing the Collector’s purchase, ownership, or interest, (ii) for the purpose of sharing, promoting, discussing, or commenting on the Digital Artwork; (iii) on third party marketplaces, exchanges, platforms, or applications in association with an offer to sell, or trade, the Digital Artwork; and (iv) within decentralized virtual environments, virtual worlds, virtual galleries, virtual museums, or other navigable and perceivable virtual environments.

  • Collectors have the right to sell, trade, transfer, or use their Products, but Collectors may not make “commercial use” of the Digital Artwork.

  • The Collector agrees that it may not, nor permit any third party, to do or attempt to do any of the foregoing without the Creator’s express prior written consent in each case: (i) modify, distort, mutilate, or perform any other modification to the Work which would be prejudicial to the Creator’s honor or reputation; (ii) use the Digital Artwork to advertise, market, or sell any third party product or service; (iii) use the Digital Artwork in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) incorporate the Digital Artwork in movies, videos, video games, or any other forms of media for a commercial purpose, except to the limited extent that such use is expressly permitted by these Terms or solely for your Collector’s personal, non-commercial use; (v) sell, distribute for commercial gain, or otherwise commercialize merchandise that includes, contains, or consists of the Digital Artwork; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Digital Artwork; (vii) attempt to mint, tokenize, or create an additional cryptographic token representing the same Digital Artwork, whether on or off of the Foundation Platform; (viii) falsify, misrepresent, or conceal the authorship of the Digital Artwork or the Product; or (ix) otherwise utilize the Digital Artwork for the Collector’s or any third party’s commercial benefit.

  • Collectors irrevocably release, acquit, and forever discharge Foundation and its subsidiaries, affiliates, officers, and successors of any liability for direct or indirect copyright or trademark infringement for Foundation use of a Digital Artwork in accordance with these Terms.

How to Lodge a Copyright Complaint with Foundation?

  • Foundation respects the intellectual property rights of others. It is our policy to respond promptly any claim that Content (defined below) posted on the Site infringes the copyright or other intellectual property rights ("Infringement") of any person. We will use reasonable efforts to investigate notices of alleged Infringement and will take appropriate action under applicable intellectual property laws and these Terms where it believes an Infringement has taken place.

  • If you have any questions about copyright infringement or the notification and counter-notification process under the Digital Millennium Copyright Act (the "DMCA"), we recommend that you speak with an attorney.

  • Foundation reserves the right to remove any Content that allegedly infringes another person's copyright. In appropriate circumstances, Foundation will terminate the accounts of users who infringe copyright.

  • To notify Foundation of a possible infringement you must submit your notice in writing to the attention of "Copyright Infringement" care of creators@withfoundation.com and include in your notice a detailed description of the alleged infringement sufficient to enable us to make a reasonable determination. Please note that you may be held accountable for damages (including costs and attorneys’ fees) for misrepresenting that any Content is infringing your copyright.

What Fees Does Foundation Charge?

Every transaction on Foundation is subject to fees to support Creators and the Site. Foundation collects all fees by the operation of the Ethereum smart contracts.

Digital Artwork (NFTs)

The amount of fees for the sale of a Product on Foundation depends on whether the transaction involves the Product’s initial sale (“Initial Sale”) or a subsequent sale in the secondary market (“Secondary Market Sale”).

Primary Sale

  • Creators receive 90% of the total sale price of an Initial Sale.

  • Foundation collects 10% of the total sale price of an Initial Sale.

Secondary Market Sale

  • Creators receive a 10% fee based on the total sale price for Secondary Market Sales paid by the Collector who sells the Product based on the total sale price for Secondary Market Sale (“Secondary Market Sale Fee”).

  • The Secondary Market Sale Fee is deducted from the total sale price at the time of the purchase by operation of the smart contracts.

  • Foundation collects a 3% fee on all Secondary Market Sales.

Product Tokens (ERC-20)

  • When a product token is bought on Foundation, a 3% fee is charged to the buyer and is distributed to the creator.

  • When a product token is sold on Foundation, a 3% fee is charged to the seller — with 1.5% being distributed to the creator, and 1.5% being collected by Foundation.

  • When a product token is redeemed, Creators receive 95% of the total redemption price and Foundation collects a 5% fee.

You agree and understand that all fees, commissions, and royalties are transferred, processed, or initiated directly through one or more of the smart contracts on the Ethereum blockchain network.

You consent to the automated collection and disbursement to Creators of royalties for Secondary Market sales of Products. The User hereby waives any first sale defense or argument with respect to Secondary Market activities resulting in a royalty to a Creator.

Foundation does not generally collect any fees, commissions, or royalties for transactions occurring outside of Foundation. Creators and Collectors hereby waive any entitlement to royalties or fees for off market transactions. Users irrevocably releases, acquits, and forever discharges Foundation and its subsidiaries, affiliates, officers, and successors of any liability for royalties, fines, or fees not received from any off-market transaction.

All transactions on Foundation, including without limitation minting, tokenizing, bidding, listing, offering, purchasing, or confirming, are facilitated by smart contracts existing on the Ethereum network. The Ethereum network requires the payment of a transaction fee (a “Gas fee”) for every transaction that occurs on the Ethereum network, and thus every transaction occurring on Foundation. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of Foundation. The User acknowledges that under no circumstances will a contract, agreement, offer, sale, bid, or other transaction on Foundation be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable.

Users are responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority, “associated with your use of Foundation (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, sale, or creation of any artworks).

What Using Foundation Means?

  • License. Foundation grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site and related content, materials, information (collectively, the "Content") solely for your own personal, noncommercial use. Any other use of the Site or Content is expressly prohibited and all other right, title, and interest in the Site or Content is exclusively the property of Foundation and its licensors.

  • Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site or services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.

  • Modification. Foundation reserves the right, at any time, to modify, suspend, or discontinue the Site and the services (in whole or in part) with or without notice to you. You agree that Foundation will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.

  • Site and Service Availability. Foundation will make reasonable efforts to provide the Site and the services on a twenty-four (24) hours a day, seven (7) days a week basis.

  • Customer Support. The Site is provided “as-is.” However, we are happy to discuss any challenges or questions you may have about the services or the Site and may offer assistance on a case-by-case basis. If you have questions about any aspect of the Site you can send an email to support@withfoundation.com.

  • Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by Foundation or Foundation’s suppliers.

  • Beta Services.  Certain features on Foundation may be offered while still in “beta” form (“Beta Services”).  Foundation will utilize best efforts to identity the Beta Services by labeling on its Site.  By accepting these Terms or using the Beta Services, you understand and acknowledge that the Beta Services are being provided as a “Beta” version and made available on an “As Is” or “As Available” basis. The Beta Services may contain bugs, errors, and other problems. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE BETA SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. In addition, we are not obligated to provide any maintenance, technical, or other support for the Beta Services.

What About My Privacy?

Our privacy policy is a part of these Terms. Please review the Foundation Privacy Policy, which also governs the Site and informs users of our data collection practices.

Where is Foundation Liable?

We have put in a great deal of effort to deliver you Services that we hope you find valuable, but there are certain things we can’t promise about them. You expressly acknowledge and agree that your access to and use of the Site is at your sole risk.

To the fullest extent permitted by law, in no event will Foundation be responsible to you for any: (1) financial losses, including from a decrease in the price of a Product, or non-delivery of a Product by a Creator; (2) loss of use, data, business or profits; or (3) indirect, special consequential, exemplary, or punitive damages. This will be whether or not the Foundation warned of the possibility of such damages. Notwithstanding anything to the contrary in these terms, nothing in these terms excludes or limits liability for fraud, fraudulent misrepresentation, or for death or personal injury caused by gross negligence.

You agree to defend, indemnify and hold harmless Foundation, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Site, including, but not limited to any use of the Site's content, services and products other than as expressly authorized in these Terms or your use of any information obtained from the Site.

What is the Governing Law and Venue?

These Terms and your access to and use of the Site will be governed by the laws of the State of California, U.S.A., without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court shall be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in San Francisco County, California.

Can Foundation Change these Terms?

We reserve the right to change these Terms at any time upon notice. We may give notice by posting the updated Terms on the Site or by any other reasonable means. You can review the most current version of these Terms at any time. The Terms in effect at the time of your use of the Site apply. Your continued use of the Site after the date of the updated Terms will constitute your acceptance of the updated Terms.

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