Foggie Terms and Conditions

Version: October 17, 2022

Please read these Terms and Conditions, including our Payment Policy and Privacy Policy, which are incorporated into this document by reference (together, the “Terms”) carefully before using the Foggie software, web or mobile applications (“Foggie”), or any associated product or services.
These Terms are a contract entered into between You (“you,” “your,” “yours”) and Fog Works, Inc., a Delaware company, formerly known as W3 Storage Labs, Inc. These Terms govern your use of and access to Foggie, including any related content, functionality, and services offered on or through it (the “Services”).
We, or our third-party affiliates, may make improvements and changes in the capabilities, features, prices, and availability of Foggieat any time without notice. You agree that we are not and shall not be liable to you or to any third party for any modification, suspension, or discontinuance of Foggie, the Services or any portion or functionality thereof.
For any questions about these Terms of Use, please contact us at [email protected].

1. Acceptance of Terms

BY USING Foggie OR THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OR CONDITIONS CONTAINED IN THESE TERMS OR ANY PORTION OF IT YOU MUST NOT ACCESS OR USE Foggie OR THE SERVICES.
Acceptance on Behalf of a Legal Entity. IF YOU AGREE TO THESE TERMS OF USE ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THESE TERMS AND THE ENTIRETY OF THE TERMS AND FURTHER UNDERSTAND AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THESE TERMS AND THE ENTIRETY OF THE TERMS. IN THAT EVENT, “YOU,” “YOUR,” AND “YOURS” WILL REFER AND APPLY TO YOU AS AND INDIVIDUAL AND THAT ENTITY OR AGENCY.
Persons who Cannot Accept. You cannot accept these Terms if: (i) you are not lawfully entitled to use Foggie under any applicable laws in the country, state, province, or other location in which you are physically present at the time of access or otherwise resident of; or (ii) you are under the age of 18. It is your responsibility to ensure that you are legally allowed to enter into these Terms and that you do not violate any applicable laws.
Modification. We, or our third-party affiliates, may make improvements and/or changes in the capabilities, features, prices, and availability of the Site at any time without notice. You accept that we are not and shall not be liable to you or to any third party for any modification, suspension, or discontinuance of Foggie, the Services or any portion or functionality thereof. The preceding two sentences do not apply to the rights and obligations of Sections 9 and 10, and if a change or modification of any such sections is made, you will be immediately notified through the Services or via an email address or other contact method you have provided to us. Your continued use of Foggie after any such change constitutes acceptance of the new, additional, or modified Terms.

2. Registration and Accounts.

Fill in the Registration form on the Foggie website by providing the requested information. Prior to clicking “Register,” you may be required to confirm certain personal information, which may change from time to time. By clicking “Register,” your Account is created (an “Account”). You are only permitted to have one Account and if your Account is terminated by us for a breach of these Terms, you may not be permitted to create another Account.
You acknowledge that your Account is personal to you, and you are obliged not to provide any other person with access to Foggie or Services or portions of it using your email address, password, or other security information.
You are responsible for maintaining the confidentiality of your data and for monitoring and, if necessary, restricting access to your devices. Any email address, password, or any other information chosen by you or provided to you as a part of our security procedures, must be treated as confidential, and you must not disclose it to any other person or entity. You must exercise caution when accessing your Account from a public or shared device so that others are not able to view or record your password or other Account information.
You will use any and all commercially reasonable efforts to prevent unauthorized use of Account assigned to you and will promptly notify us, in writing, if you suspect that an Account is compromised or misused or if any user ID, password or other access credentials are lost, stolen, compromised, or misused.
You understand, acknowledge, and agree that to the extent permitted by applicable law, we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with the unauthorized use of your Account.
You understand, acknowledge, and agree that any Account information must be accurate, current, truthful, and complete, and you will keep your Account information accurate, current, truthful, and complete. We may identify you and send notices, statements, and other information by e-mail or through your Account.
You understand, acknowledge, and agree that we have the right, but not the obligation, to monitor your Account for any reason. You further understand, acknowledge, and agree that we may:

remove anything that is, in our sole discretion, unacceptable, inappropriate, or not in compliance with these Terms,
disclose data to law enforcement agencies or authorities who may investigate reports of misuse or abuse of the Account or Foggie and the Services; and
suspend or terminate access to the Account, at any time and without prior notice

3. Permitted Use and Conduct

You may use Foggie and the Services only within the intended purpose and permitted use. You acknowledge that the purpose of the Account is to provide you with access to the Services, including tools to create and manage information, images, applications, and data, (“User Content”), create non-fungible tokens and store the underlying artwork, rent out unused storage space to third parties, and certain other functionality we advertise. Any use for other purposes or particular misuse of Foggie or the Services is not permitted.
Under no circumstances are you permitted to engage in Improper Conduct. Improper Conduct includes, but is not limited to:

Host content that is illegal in your country of residence;
Falsifying personal information or impersonating any natural or legal person, including payment information, required to use Foggie or the Services;
to spam, phish, pharm, pretext, spider, crawl, or scrape;
to solicit others to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose of Foggie or the Services
tampering with the administration of Foggie or the Services or trying to in any way tamper with the computer programs associated with Foggie or the Services;
obtaining or using any other persons’ personal, non-public information with the intent to harm them, their reputation, property or livelihood, or spamming other persons;
abusing Foggie or the Services in any way; or
otherwise violating these Terms.

4. Failure of observing the limits of purpose and permitted use of your Account

Failure of observing the limits of purpose and permitted use of your Account, Foggie, and the Services is deemed a material breach of these Terms. We shall be entitled to – without prejudice to any other rights and in our sole and absolute discretion – terminate your Account. You may not use or access Foggie or the Services if we have terminated your Account or otherwise elect not to provide you access to Foggie or the Services.

5. User Content and Intellectual Property

is owned and created by you or you have the legal right to use it and the ability to grant us the rights and license as provided in these Terms;
does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity;
does not contain a link or promote any affiliate program, multi-level marketing scheme, sites repurposing existing stories or off-topic content;
does not scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or using any method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any approved mobile application, application programming interface, or client application;
does not contain software viruses or any other computer code, files or programs designed or functioning to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
does not falsely or incorrectly claim that you are or any other person is a technology, art, or financial professional, or falsely state or otherwise misrepresent your or another person’s affiliation with a technology company, financial institution, artist, or educational facility; and
is not and does contain unlawful, harmful, threatening, abusive, fraudulent, harassing, insulting, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or racist, that glorifies violence, is pornographic, unethical or otherwise prohibited, objectionable, or infringing on the rights of any third party.

Your Rights. Except for those rights granted herein, you retain any and all of your rights to any User Content you store, post, display, or disclose or through Foggie or the Services and you are responsible for protecting those rights. We take no responsibility and assume no liability for any User Content you or any third-party store, post, display, disclose or otherwise make available on or through Foggie or the Services. We reserve the right to terminate the account of anyone found to be infringing on a copyright or violating these Terms.
Your License to Us. You grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable and license to use, modify, publicly perform, publicly display, reproduce, re-format and distribute any of your content you deem as “publicly accessible” on and through Foggie and the service. You accept and understand that this license includes the right for us to make your User Content available to other persons, who may also use your User Content subject to these Terms.
Intellectual Property Displayed. Any other information, images, data or content found on or through Foggie (“Data”) is the property of or used with permission given to Fog Works, Inc., including all patent rights, copyright, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence (“Intellectual Property”). You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Data or Intellectual Property, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us. You specifically agree not to access (or attempt to access) Foggie, the Services, User Content, Data or Intellectual Property through any automated means (including the use of any script, web crawler, robot, spider, or scraper), and that you will not forge or manipulate identifiers in order to disguise the origin of any access (or attempted access) to Foggie, the Services, User Content, Data or Intellectual Property.
Intellectual Property Ownership. Foggie, the Services, Data, and other Intellectual Property objects displayed, distributed, or otherwise made available via Foggie and the Services, is the property of Fog Works, Inc., and its successors, assigns, licensors, or suppliers. Unless specifically provided in these Terms or if you have agreed otherwise in writing with us, nothing in these Terms gives you a right to use Foggie, the Services, Data, User Content or Intellectual Property, and nothing in these Terms transfers or assigns any ownership rights.
We may provide means for you to give suggestions or feedback, or we may require information from you to provide troubleshooting or other Services. We are under no obligation to use suggestion, feedback, or information, but may, in our sole discretion, without any credit or notification to you. You hereby specifically disclaim any rights, whether through intellectual property, moral rights, or any other right in law or equity for any User Content you submit to us for the purpose of functionality suggestions, feedback, or customer service, including any complaints and regardless of the method you provide it to us and expressly permit us to utilize it as we deem necessary or desirable for any purpose whatsoever.

6. Hosting and Storing Regulated Content

The nature of Foggie and the Services means that you may host, store, display, post, or disclose content that is illegal, defamatory, unethical, confidential, regulated, or otherwise problematic (“Regulated Content”). Fog Works, Inc. works with governments, governmental agencies, and regulatory authorities (“Governmental Authorities”) and does not prohibit such Governmental Authorities from compiling and maintaining a list of hash IDs pertaining to such Regulated Content. You may be permitted, and will likely be encouraged, to use such hash IDs to identify if your Foggie hosts, stores, displays, posts, or discloses any Regulated Content. If you discover any Regulated Content on your Foggie, you may, at your discretion, remove or delete the Regulated Content. Fog Works, Inc. is not permitted to remove, access, or delete any such Regulated Content, however we may terminate your Account in its entirety if the Regulated Content is not removed or deleted. We are not liable for any damages incurred by your delay or failure to remove or delete any Regulated Content, including any action by a Governmental Authority. You explicitly agree to indemnify, defend, and hold us harmless for any act, omission, decision or lack thereof regarding Regulated Content hosted, stored, displayed, posted, or disclosed on or through your Foggie or Account, including any action taken by a Governmental Authority.

7. Links to and Integration with Other Websites and Sites.

Use of certain links or integrated features within Foggie or the Services will direct you to third party feeds, software, websites or mobile applications (collectively, “Third-Party Platforms”). Such Third-Party Platforms are not under the control of Fog Works, Inc., and we are not responsible for the content of any such Third-Party Platforms or any link contained in such Third Party-Platform. Links to Third-Party Platforms included on or through Foggie or the Services are provided for your convenience, and the inclusion of such links does not imply a recommendation or endorsement by us of any such Third-Party Platform or the products or services or information offered therein. If you decide to access any Third-Party Platform information, you do so entirely at your own risk. In no event shall we be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such Third-Party Platform. We strongly advise you to read the Terms of Use and Privacy Policies of any Third-Party Platform or any other website or services that you visit.

8. Term and Termination

We may terminate these Terms, your Account, or any use of or access to Foggie or the Services at any time for any reason, with or without cause. We specifically reserve the right to terminate these Terms if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of Fog Works, Inc. or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material. If you have registered for an Account, you may also terminate these Terms at any time by contacting us at and requesting termination
Effect of Termination. Upon the termination of these Terms, any provisions that would be expected to survive termination by their nature shall remain in full force and effect, including, but not limited to Indemnification, Limitation of Liability, Arbitration, and Disclaimers of Warranties. Upon termination, your right to use Foggie and the Services is automatically revoked, and your Account will be closed. As a result of Account closure and your termination of these Terms, YOU MUST NOT ACCESS THE APP OR SERVICES.
Effect on User Content. Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to User Content you keep on the Site or through the Services and that that any closure of your Account may involve deletion of any User Content stored in your Account, for which we have no liability whatsoever. We, in our sole discretion and as permitted or required by law, may retain some or all of your Account information.
Risk of Loss. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT ANY OR ALL OF OUR SERVICES MAY BE TERMINATED IN WHOLE OR IN PART AT OUR SOLE DISCRETION WITHOUT NOTICE TO YOU. YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF OUR SERVICES AND ACCOUNT CLOSURE.

9. Disclaimer of Warranties

You expressly understand and agree that your use of the Services is at your sole risk. Foggie (including the Services and any User Content) is provided on an “AS IS” and “as available” basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose or non-infringement. You acknowledge that Fog Works, Inc. has no control over, and no duty to take any action regarding: which users gain access to or use Foggie and the Services; what effects the User Content may have on you; how you may interpret or use the User Content; or what actions you may take as a result of having been exposed to the User Content. You release Fog Works, Inc. from all liability for you having acquired or not acquired User Content through Foggie or Services. Foggie or the Services may contain, or direct you to other websites containing information that some people may find offensive or inappropriate. We make no representations concerning any User Content contained in or accessed through Foggie or the Services, and Fog Works, Inc. will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through Foggie or the Services.

10. In addition to any other indemnifications stated in these Terms

you agree to indemnify, defend, and hold harmless Fog Works, Inc. and its affiliates, vendors, licensors and their respective owners, directors, officers, employees, agents, subsidiaries, representatives, successors and assigns from and against all claims, demands, liabilities, suits, actions, judgments, awards, damages, losses, costs and expenses, including attorneys’ fees, arising out of, related to, or resulting from

any action taken using your Account, user IDs, passwords or other access credentials,
your use or non-use of Foggie or any Services;
your reliance or non-reliance on any User Content or other information;
the User Content made available through your Account;
your or noncompliance with or breach of these Terms;
your physical location at the time of use of Foggie or the Services;
your age at the time of use of Foggie or the Services;
your receipt, ownership, use, or misuse of any User Content or other information;
your use of third-party services, including products, links, advertisements, or tools; and
your violations of any third-party rights, including any third-party intellectual property rights.

11. Limitation of Liability

In no event shall Fog Works, Inc., nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, injuries or any other damage that might occur to your health, loss of profits, loss of data, or other intangible losses, resulting from (i) your access to or use of or inability to access or use Foggie; (ii) any conduct or content of any third party on Foggie or the Services; (iii) any content obtained from Foggie or the Services; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
IN NO EVENT SHALL FOG WORKS, INC., ITS EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, VENDORS, SUCCESSORS, ASSIGNS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AND MEMBERS, BE LIABLE TO YOU, YOUR AUTHORIZED USERS OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGES WHATSOEVER ARISING FROM

THE USE OF OR INABILITY TO USE Foggie, THE SERVICES, OR ACCOUNTS,
ANY INFORMATION, USER CONTENT, INTELLECTUAL PROPERTY, MATERIALS, OR THER SERVICES OTHERWISE MADE AVAILABLE TO YOU THROUGH Foggie OR THE SERVICES,
CHANGES IN APPLICABLE LAWS AFFECTING YOU OR OTHER PERSONS, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA.
WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR CONFIDENTIAL INFORMATION. BY EITHER YOU OR YOUR AUTHORIZED USERS UTILIZING Foggie, THE SERVICES, OR ACCOUNTS, YOU ACKNOWLEDGE AND AGREE TO OUR DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR OTHERWISE USE THEM.
OUR LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF OUR, SUBSIDIARIES, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS TO YOU, YOUR AUTHORIZED USERS OR ANY OTHER PERSON IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES YOU PAY TO US IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR 100,000 UNITED STATES DOLLARS IF NO SUCH FEES ARE PAID TO US.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
THE ABOVE LIMITATIONS SHALL SURVIVE THESE TERMS OF USE AND INURE TO THE BENEFIT OF FOG WORKS, INC., ITS AFFILIATES, AND RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS.
Nothing in these Terms shall be construed to be tax or other legal advice by Fog Works, Inc. These Terms are not intended to, and do not, create or impose any tax obligation on Fog Works, Inc., its employees, agents, affiliates, assigns, subcontractors, licensors, suppliers, or any other persons or entities.

12. Dispute Resolution

Initial Dispute Resolution. You can email us at [email protected] to address any concerns you may have regarding Foggie or the Services. We attempt to resolve concerns quickly to our user’s satisfaction. The parties shall in good faith use their best efforts to settle any dispute, claim, question, or disagreement prior to and as a condition of initiating any legal proceeding.
Governing Law. These Terms are governed by the State of Delaware, without regard to its conflict of laws rules or principles. The parties hereby exclude the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended.
Time to File Dispute. Any claim or cause of action you or may have arising out of, relating to, or resulting from these Terms, Foggie, the Services, or Account must be commenced within one year after the cause of action accrues. Otherwise, such claim or cause of action is waived and permanently barred.
Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND FOG WORKS, INC. UNDERSTAND AND ACCEPT THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Binding Arbitration in the United States. All questions or disputes regarding the interpretation, performance, or enforceability of these Terms, or the rights and remedies of the parties, shall be resolved by binding arbitration before a single arbitrator, with arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules in effect on the date the proceeding is initiated. The arbitrator shall apply the substantive laws of the State of Delaware, United States without giving effect to any conflict of laws rules or principles. The arbitration hearing and all related proceedings shall be conducted in Delaware and in the English language. The arbitrator’s decision shall be final and non-appealable. Judgment on the award or decision rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator shall have the authority to settle any controversy, claim or dispute by finding that a party should be enjoined from certain actions or be compelled to undertake certain actions, and in such event a court of competent jurisdiction may enter an order enjoining and/or compelling such actions as found by the arbitrator. Except to the extent required by applicable law, the parties agree to keep confidential the nature of the controversy, claims, and dispute submitted to arbitration, all submissions made by the parties in connection with any arbitration proceeding or hearing, and the content of the arbitration proceedings and hearings. This section does not limit either party’s right to provisional or ancillary remedies from a court of competent jurisdiction before, during, or after arbitration, and the exercise of any such remedy does not waive either party’s right to arbitration. Judgment on an arbitration award may be entered by any court with competent jurisdiction. Any requirement in these Terms to pay or reimburse court costs or attorneys’ fees includes, without limitation, a requirement to reimburse costs and fees related to such arbitration. These Terms are subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Temporary Restraining Order. Notwithstanding anything in this Section 10 to the contrary, the parties expressly agree that any court of competent jurisdiction may enter a temporary restraining order, an order enjoining breach of these Terms pending a final award or further decision by the arbitrator.
Jury Trial Waiver. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY FOR DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OF USE, INCLUDING WITHOUT LIMITATION COUNTERCLAIMS REGARDING SUCH DISPUTES, CLAIMS RELATED TO THE PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS LICENSE, AND OTHER CHALLENGES TO THE VALIDITY OR ENFORCEABILITY OF THIS LICENSE. THE WAIVER IN THE PRECEDING SENTENCE APPLIES REGARDLESS OF THE TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY.
Exception for Intellectual Property Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its Intellectual Property.
Waiver of Terms. Any waiver made by us regarding these Terms shall be effective only if agreed or declared in writing. If we fail at any time to enforce any right, power or remedy reserved to us under these Terms, such failure shall not be treated as a waiver of our right to exercise the same or any other right, power or remedy at any time. The rights and remedies herein provided are cumulative and not exclusive of any other rights and remedies provided by law.
Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to [email protected]. The notice must be sent within 30 days of your first use of Foggie or the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, we also will not be bound by them.

13. Miscellaneous

Affiliate Disclosure. We may have an affiliate relationship with third parties and affiliates to whose products and services we link or promote. Because of this relationship, we may earn a commission on products or services purchased by you from a third-party affiliate. We are not responsible for, and you agree not to hold us liable for, any products or services purchased by you from a third-party affiliate, nor are we responsible or liable for any loss or damage caused as a result of your use of any third-party product or service linked to from our Site or in our Services.
Assignment You understand, acknowledge, and agree that we have the right to assign or transfer these Terms and its rights and obligations hereunder to any third party. You understand, acknowledge, and agree that you shall not assign or transfer your rights or subcontract or delegate the performance of any of your obligations under these Terms without our prior written consent, which may or may not be given, withheld, or delayed at our sole and exclusive discretion.
Customer Service. Should you have any questions, comments or concerns regarding information or services provided or offered by us, our customer service may be contacted at any time by email at [email protected].
Entire Agreement. These Terms and Conditions, together with the Payment Policy and Privacy Policy, constitute the sole and entire agreement between you and Fog Works, Inc. with respect to Foggie and the Services described herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the same. No modification or amendment will be binding upon us unless in a written instrument signed by our duly authorized representative or made available to you by us.
Export Control. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) 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, (ii) Customer will not (and will not permit any third parties to) access or use any Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to any Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
Force Majeure. We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of god or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
Except as explicitly stated otherwise, any notices directed to Fog Works, Inc. shall be given by email to [email protected]. Any notices directed to you shall be directed to the e-mail address you provide to us, either during the Sign-Up process or when your e-mail address changes. Notice to you shall be deemed given 24 hours after any such e-mail is sent unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon Account registration. In such case, notice shall be deemed given three calendar days after the date of mailing.
Severability. If any part of these Terms is determined to be invalid or unenforceable by a court or tribunal of competent jurisdiction, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms will continue in effect.
Third-Party Beneficiaries. You understand and agree that, except as otherwise provided for in these Terms, there shall be no third-party beneficiaries to the Terms.
Titles and Headings. Titles and headings of sections of these Terms are for convenience only and shall not affect the construction of any provision of this Terms.
S. Government Terms. Fog Works, Inc. provides the Foggie, Services and Accounts for ultimate federal and U.S. State or Territory government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
Any waiver made by us regarding these Terms shall be effective only if agreed or declared in writing. If we fail at any time to enforce any right, power or remedy reserved to us under these Terms of Use, such failure shall not be treated as a waiver of our right to exercise the same or any other right, power or remedy at any time. The rights and remedies herein provided are cumulative and not exclusive of any other rights and remedies provided by law.