Fathom Yacht Club NFT Fathom Yacht Club NFT Terms of Use

Last revised: July 6, 2022

These Terms are entered into between you and Fathom Yacht Club LLC (“Fathom” “Company,” “we,” or “us”). These Terms of Use (“Terms”) apply to your purchase, sale, and display of Fathom Yacht Club, LLC non-fungible tokens (“Fathom Yacht Club NFTs”). Some purchases of Fathom Yacht Club NFTs may include special perks, utility, experiences, educational activities, or opportunities (“Utility”) including but not limited to the ability to attend in person events, interact in online forums, or mint future NFTs for a limited period after Fathom Yacht ClubNFTs are first made available for sale by Company, in each case as determined by Company in its sole discretion. Company does not make any representation or guarantee that any purchaser of a Fathom Yacht Club NFT will receive any Utility or achieve any particular outcome as a result of owning such NFT. Company reserves the right, at its sole discretion, to restrict, limit, or deny any Utility to any purchaser, including to limit the period of time when a Utility is available, for any reason, at any time. Utility is not intended to be an endorsement of any project, creator, NFT, individual or any other thing, and Company makes no recommendation and provides no investment advice in connection with any Utility or otherwise as a result of holding or owning a Fathom Yacht Club NFT.

These Terms expressly incorporate any other documents referenced herein (such as our Privacy Policy, available at fathomyachtclub.com (the “Site”)) and govern your access to and the Site, as well as all content, functionality, and services offered on or through the Site, including the Fathom Yacht Club NFTs.

Reviewing and Accepting These Terms

Please read these Terms carefully, as they set out your rights and responsibilities when you use this Site to buy Fathom Yacht Club NFTs (the “Services”). When each Fathom Yacht Club NFT is sold for the first time, the agreement for sale is between the Company and the initial purchaser. If the initial purchaser decides to sell the Fathom Yacht Club NFTs through this Site, then this Site serves only as a platform that facilitates transactions between a buyer and a seller and the Company is not a party to any agreement between such buyer and seller of Fathom Yacht Club NFTs or between any other users.

All Fathom Yacht Club NFTs are stored on and accessible through the Ethereum blockchain. As such, the Company does not maintain the Fathom Yacht Club NFTs on this Site and, aside from transferring control of the Fathom Yacht Club NFT to the initial purchaser of the Fathom Yacht Club NFT, the Company has no control over the transfer, storage, ownership or maintenance of the Fathom Yacht Club NFT.

When you connect your cryptocurrency wallet to the Site using a trusted service provider such as MetaMask or Wallet Connect, you accept and agree to be bound and abide by these Terms and all of the terms incorporated herein by reference. By agreeing to these Terms, you hereby certify that you are at least 18 years of age. If you do not agree to these Terms, you must not access or use the Site or the NFTs.

Please note that a later clause contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have the dispute decided by a judge or jury, and you waive any right to participate in collective action, whether that be a class action, class arbitration, or representative action. You have the ability to opt-out of this arbitration clause by sending us notice of your intent to do so within thirty (30) days of your initial agreement to these Terms.

We reserve the right to change or modify these Terms at any time and in our sole discretion. You agree and understand that by accessing or using the Site following any change to these Terms, you are agreeing to the revised Terms and all of the terms incorporated therein by reference.

Review the Terms each time you access the Site to ensure that you understand how the Terms apply to your activities on the Site. Periodic review of the Terms is recommended if you intend to continue to own the Fathom Yacht Club NFT without accessing or using the Site.

Linking Your Cryptocurrency Wallet

When you link your cryptocurrency wallet, you understand and agree that you are solely responsible for maintaining the security of your wallet and your control over any wallet-related authentication credentials, private or public cryptocurrency keys, non-fungible tokens or cryptocurrencies that are stored in or are accessible through your wallet. Any unauthorized access to your cryptocurrency wallet by third parties could result in the loss or theft of Fathom Yacht Club NFTs and/or funds held in your wallet and any associated wallets, including any linked financial information such as bank account(s) or credit card(s). We are not responsible for managing and maintaining the security of your cryptocurrency wallet nor for any unauthorized access to or use of your cryptocurrency wallet. If you notice any unauthorized or suspicious activity in your cryptocurrency wallet that seems to be related to this Site, please notify us immediately.

Ownership

Unless otherwise indicated in writing by us, the Site, all content, and all other materials contained therein, including, without limitation, our logos, and all designs, text, graphics, pictures, information, data, software, sound files, other files, and the selection and arrangement thereof (collectively, “Site Content”) are the proprietary property of Fathom Yacht Club or our affiliates, licensors, or users, as applicable. The Fathom logo and any Fathom Yacht Club product or service names, logos, or slogans that may appear on the Site or elsewhere are trademarks of Fathom Yacht Club or our affiliates, and may not be copied, imitated or used, in whole or in part, without our prior written permission.

You may not use any Site Content or link to the Site without our prior written permission. You may not use framing techniques to enclose any Site Content without our express written consent. In addition, the look and feel of the Site Content, including without limitation, all page headers, custom graphics, button icons, and scripts constitute the service mark, trademark, or trade dress of Fathom and may not be copied, imitated, or used, in whole or in part, without our prior written permission.

Ownership of NFT

i. Each Fathom Octopus is an NFT on the Ethereum blockchain. Ownership of the NFT is mediated entirely by the Smart Contract and the Ethereum Network.

ii. Personal Use. Subject to your continued compliance with these Terms, Fathom Yacht Club LLC grants you a worldwide, royalty-free license to use, copy, and display the purchased Art, along with any extensions that you choose to create or use, solely for the following purposes: (i) for your own personal, non-commercial use; (ii) as part of a marketplace that permits the purchase and sale of your Fathom Octopus / NFT, provided that the marketplace cryptographically verifies each Fathom Octopus owner’s rights to display the Art for their Fathom Octopus to ensure that only the actual owner can display the Art; or (iii) as part of a third-party website or application that permits the inclusion, involvement, or participation of your Fathom Octopus, provided that the website/application cryptographically verifies each Fathom Octopus owner’s rights to display the Art for their Fathom Octopus to ensure that only the actual owner can display the Art, and provided that the Art is no longer visible once the owner of the Fathom Octopus leaves the website/application.

iii. Commercial Use. Subject to your continued compliance with these Terms, Fathom Yacht Club LLC grants you a limited, worldwide license to use, copy, and display the purchased Art for the purpose of creating derivative works based upon the Art (“Commercial Use”). Examples of such Commercial Use would e.g. be the use of the Art to produce and sell merchandise products (T-Shirts etc.) displaying copies of the Art. For the sake of clarity, nothing in this Section will be deemed to restrict you from (i) owning or operating a marketplace that permits the use and sale of Fathom Octopuses generally, provided that the marketplace cryptographically verifies each Fathom Octopus owner’s rights to display the Art for their Fathom Octopus to ensure that only the actual owner can display the Art; (ii) owning or operating a third-party website or application that permits the inclusion, involvement, or participation of Fathom Octopuses generally, provided that the third-party website or application cryptographically verifies each Fathom Octopus owner’s rights to display the Art for their Fathom Octopus to ensure that only the actual owner can display the Art, and provided that the Art is no longer visible once the owner of the Purchased Fathom Octopus leaves the website/application; or (iii) earning revenue from any of the foregoing.

Terms of Sale

By placing an order on the Site, you agree that you are submitting a binding offer to purchase a Fathom Yacht Club NFT or other Service. If you are the initial purchaser of a Fathom Yacht Club NFT or you are purchasing a Service, then all amounts due are to be paid to Fathom Yacht Club, LLC. If you are not the initial purchaser of a Fathom Yacht Club NFT, then amounts may be paid to the-then holder of the Fathom Yacht Club NFT. You also acknowledge and agree that Company receives 10% of every subsequent sale of a Fathom Yacht Club NFT (“Royalty”). For example, if you are the initial purchaser, and you sell a Fathom Yacht Club NFT for $100 to a subsequent purchaser, $10 will automatically be transferred to Company and you will receive $90. Company has the right collect Royalties for Fathom Yacht Club NFT sales in perpetuity and may use those funds in any manner Company sees fit. Notwithstanding the foregoing, the Company has committed to donate 10% of all Royalties Company receives annually to a charity of Company’s choosing. The Company may make such payment at such time as it desires.

As such, if you sell a Fathom Yacht Club NFT on a third-party NFT marketplace, you agree to include a statement substantially similar to the following in the description of the NFT:

“10% Royalty Applies. See Fathom Terms for details.”
In addition, when you buy or sell a Fathom Yacht Club NFT on this Site, you agree to pay all applicable fees associated with the transaction and you authorize Company to automatically charge and collect such fees from your payment. We will always display a breakdown of any transaction or other fees prior to your purchase or sale of a Fathom Yacht Club NFT.

No refunds are permitted except with respect to any statutory warranties or guaranties that cannot be excluded or limited by law.

Intellectual Property

Other than Site Content, all other trademarks, product names, and logos on the Site are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable trademark holder. Without limiting the foregoing, if you believe that third-party material hosted on the Site infringes your copyright or trademark rights, please file a notice of infringement by contacting the Designated Copyright Agent listed below.

Your notice must contain the following information as required by the Digital Millennium Copyright Act (17 U.S.C. §512) (“DMCA”):

The full name and a physical or electronic signature of the person authorized to act on behalf of the copyright owner;

Identification of the copyrighted work claimed to have been infringed. If multiple copyrighted works are covered by your notice, you may provide a representative list of the copyrighted works that you claim have been infringed;

Reasonably sufficient detail to enable us to identify and locate the copyrighted work that is claimed to be infringing (e.g. a link to the page on the Site that contains the material);

A mailing address, telephone number, and email address where we can contact you;

A statement that you have a good faith belief that the disputed use of the copyrighted work is not authorized by the copyright owner, its agent, or the law; and

A statement made by you, under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner or are authorized to act on behalf of the copyright owner.

Please submit your notice to the Designated Agent below:

Fathom Yacht Club LLC
Legal Department
66 West Flagler Street
Suite 900
Miami, FL 33130
Email: legal@fathomyachtclub.com

Once you provide us with an adequate notice as described above, we will respond expeditiously and take whatever action, in our sole discretion, that is deemed appropriate including removal of the disputed copyrighted work from the Site.

Behavioral Clause:

All NFT holders are expected at all times to exercise good judgment and common sense and conduct themselves in an appropriate professional manner and conduct him/herself in such a manner as not to interfere with the use of another NFT holder’s Utility.

Counter-Notice:

If you believe that a DMCA notice of copyright infringement has been improperly submitted against you, you may submit a counter-notice to the Designated Agent with the following information required by the DMCA:

Your physical or electronic signature;

Identification of the copyrighted work that has been removed or to which access has been disabled including a link to the page on the Site that contained the material before it was removed or disabled;

A statement under penalty of perjury that you have a good faith belief that the copyrighted work was removed or disabled as a result of mistake or misidentification;

Your name, address, e-mail address, and telephone number; and

A statement that you (i) consent to the jurisdiction of the Federal District Court in the judicial district where your address is located if the address is in the United States, or the United District Court for the Southern District of New York (Manhattan) if your address is located outside of the United States, and (ii) accept service of process from the person who provided the DMCA notice of the alleged copyright infringement.

Please submit your notice to the Designated Agent below:

Fathom Yacht Club LLC
Legal Department
66 West Flagler Street
Suite 900
Miami, FL 33130

Email: legal@fathomyachtclub.com

In the event that the Company receives a counter-notice in compliance with the above requirements, we will provide the person who submitted the DMCA copyright infringement notice with a copy of the counter-notice, informing them that the Company will replace the removed material in 10 business days from the date of the counter-notice unless the Company first receives notice from the person who submitted the DMCA copyright infringement notice that they have filed an action seeking a court order to restrain the allegedly infringing activity.

PLEASE NOTE THAT FATHOM INTENDS TO COMPLY WITH ALL PROVISIONS OF THE DIGITAL MILLENNIUM COPYRIGHT ACT, BUT WILL NOT UNILATERALLY TAKE RESPONSIBILITY FOR POLICING AND REMOVING MATERIAL THOUGHT TO BE INFRINGING.

We hereby grant you a limited, non-exclusive, non-transferable, revocable license to access and use the Site Content. In return, you agree not to engage, or assist, in any activity that violates any law, statute, ordinance, regulation, or sanctions program, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or that involves proceeds of any unlawful activity; not to engage in any other activity or behavior that poses a threat to Fathom Yacht Club LLC, (e.g., by distributing a virus or other harmful code, or through unauthorized access to the Site or other users’ cryptocurrency wallets and not to interfere with other users’ access to or use of the Services.

You also agree not to (1) distribute, publish, broadcast, reproduce, copy, retransmit, or publicly display any Site Content; (2) modify or create derivative works from the Site Content, or any portion thereof; (3) use any data mining, robots, or similar data gathering or extraction methods on the Site Content; (4) download any portion of the Site Content, other than for purposes of page caching, except as expressly permitted by us.

With respect to the Fathom Yacht Club NFTs, each purchaser of a Fathom Yacht Club NFT is granted an exclusive, limited license to such Fathom Yacht Club NFT and its content to access, use, or store such Fathom Yacht Club NFT and its content solely for their personal, non-commercial purposes. Fathom Yacht Club NFTs are a limited-edition digital creation based upon content that may be trademarked and/or copyrighted by Company. Unless otherwise specified, your purchase of a Fathom Yacht Club NFT does not give you the right to publicly display, perform, distribute, sell or otherwise reproduce the Fathom Yacht Club NFT or its content for any commercial purpose. You further agree that you are not receiving any copyright interest in the Fathom Yacht Club NFT or its content, and indeed, you agree that Company may sell, license, modify, display, broadcast and create derivative works based upon your Fathom Yacht Club NFT or its content. Any commercial exploitation of the Fathom Yacht Club NFT could subject you to claims of copyright infringement. If you sell a Fathom Yacht Club NFT through the Site, you agree that you will not have any claims against us for any breach of these Terms by a purchaser. If you purchase a Fathom Yacht Club NFT on the Site, you hereby agree to hold us and the seller of such Fathom Yacht Club NFT harmless from and against any and all violations or breaches of these Terms.

If you are unsure whether a contemplated use of the Site Content or a Fathom Yacht Club NFT and its content would violate these Terms, please contact us at legal@fathomyachtclub.com.

Taxes

We are not responsible for determining the withholding, sales, use, value added, transfer or other taxes, together with any interest and penalties imposed with respect thereto (“Taxes”), that may apply to transactions on this Site. You agree that you are solely responsible for determining what, if any, Taxes apply to your transactions and to withhold, collect, report and remit the correct amounts of Taxes to the appropriate taxing authorities. Unless otherwise indicated on an applicable invoice, amounts due on this Site are exclusive of sale, use, value added or similar Taxes (“Sales Taxes”). This means that Sales Taxes become your sole responsibility. Upon our request, you agree to promptly provide a properly executed Internal Revenue Service Form W-9 or applicable Internal Revenue Service W-8 and any other tax form that is reasonably required by us to comply with our tax reporting obligations.

Privacy

You acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with our Privacy Policy, which is incorporated into these Terms.

Modifications

You agree and understand that we may modify part or all of this Site or the Services without notice, and that we may update these Terms and any other document incorporated by reference therein at any time.

Risks

Please note the following risks in accessing, purchasing, selling or using Fathom Yacht Club NFTs: The price and liquidity of blockchain assets, including Fathom Yacht Club NFTs, are extremely volatile and may be subject to large fluctuations. Fluctuations in the price of other digital assets could materially and adversely affect Fathom Yacht Club NFTs, which may also be subject to significant price volatility. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of Fathom Yacht Club NFTs. Fathom Yacht Club NFTs are not legal tender and are not backed by any government. Transactions in Fathom Yacht Club NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions in Fathom Yacht Club NFTs shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the transaction. The value of Fathom Yacht Club NFTs may be derived from the continued willingness of market participants to exchange fiat currency or digital assets for Fathom Yacht Club NFTs, which may result in the potential for permanent and total loss of value of a particular Fathom Yacht Club NFT should the market for that Fathom Yacht Club NFT disappear.

You agree and understand that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks for yourself, and that we do not give advice or recommendations regarding Fathom Yacht Club NFTs, including the suitability and appropriateness of, and investment strategies for, Fathom Yacht Club NFTs. You agree and understand that you access and use this Site at your own risk; however, this brief statement does not disclose all of the risks associated with Fathom Yacht Club NFTs and other digital assets. You agree and understand that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using Fathom Yacht Club NFTs, however caused.

Disclaimers

EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY FATHOM CLUB LLC, THE SITE AND ANY SITE CONTENT CONTAINED THEREIN, AND ANY AND ALL FATHOM YACHT CLUB NFTS LISTED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. FATHOM (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL (1) MEET YOUR REQUIREMENTS; (2) BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (3) BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.

WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR NOT TAKEN IN RELIANCE ON MATERIAL OR INFORMATION CONTAINED ON THE SITE. FATHOM DOES NOT REPRESENT OR WARRANT THAT SITE CONTENT IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.

WHILE WE ATTEMPT TO MAKE YOUR ACCESS TO AND USE OF THE SITE AND SITE CONTENT SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SITE, SITE CONTENT, ANY FATHOM YACHT CLUB NFTS LISTED ON OUR SITE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.

WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF FATHOM YACHT CLUB NFTS INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) UNAUTHORIZED ACCESS TO APPLICATIONS; (E) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTE FORCING OR OTHER MEANS OF ATTACK AGAINST THE SITE OR FATHOM YACHT CLUB NFTS.

FATHOM YACHT CLUB NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ETHEREUM NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM PLATFORM. WE DO NOT GUARANTEE THAT FATHOM YACHT CLUB, LLC OR ANY FATHOM YACHT CLUB, LLC PARTY CAN AFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY FATHOM YACHT CLUB NFT.

We are not responsible for sustained casualties due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), blockchains or any other features of the Fathom Yacht Club NFTs. Fathom Yacht Club, LLC is not responsible for casualties due to late report by developers or representatives (or no report at all) of any issues with the blockchain supporting Fathom Yacht Club NFTs including forks, technical node issues or any other issues having fund losses as a result.

Nothing in these Terms shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded by legitimate means.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FATHOM YACHT CLUB, LLC BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS, THE SITE, SITE CONTENT, THE SERVICES OR THIRD PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF FATHOM YACHT CLUB, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE, SITE CONTENT, THE SERVICES OR THIRD-PARTY SITES AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE ACCESS TO AND USE OF THE SITE, SITE CONTENT, FATHOM YACHT CLUB NFTS, OR ANY SERVICES PURCHASED ON THE SITE EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT YOU HAVE PAID TO FATHOM YACHT CLUB, LLC FOR THE SERVICES IN THE LAST TWELVE MONTHS OUT OF WHICH LIABILITY AROSE.

Indemnification

To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Fathom Yacht Club, LLC, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Fathom Parties”), from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Site, Site Content, or Fathom Yacht Club NFTs, (c) your violation of these Terms, (c) your violation of the rights of a third party, including another user and (e) your failure to pay any Taxes or Sales Taxes in connection with your transactions on this Site or to provide us with a properly executed tax form described in Section 8. You agree to promptly notify us of any third party Claims and cooperate with the Fathom Parties in defending such Claims. You further agree that the Fathom Parties shall have control of the defense or settlement of any third party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND US.

Governing Law

These Terms of Use, your rights and obligations, and all actions contemplated by, arising out of or related to these Terms shall be governed by the laws of the State of New York, as if these Terms are a contract wholly entered into and wholly performed within the State of New York. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THIS SITE AS CONTEMPLATED BY THESE TERMS SHALL BE DEEMED TO HAVE OCCURRED IN THE STATE OF NEW YORK AND BE SUBJECT TO THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.

Disputes and Arbitration Agreement

Carefully read the following arbitration agreement (“Arbitration Agreement”). It requires you to arbitrate disputes with Fathom Yacht Club, LLC and limits the manner in which you can seek relief from us.

Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Site, to any Services sold or distributed through the Site, including Fathom Yacht Club NFTs, or to any aspect of your relationship with Fathom Yacht Club, LLC will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Fathom may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).

All disputes arising out of or in connection with these Terms, including without limitation your access or use of the Site, or to any products sold or distributed through the Site, will be referred to and finally resolved by arbitration under the rules of the American Arbitration Association. The case will be adjudicated by a single arbitrator and will be administered by the American Arbitration Association in accordance with its applicable rules. Each party will cover its own fees and costs associated with the arbitration proceedings. The place of arbitration will be Florida. The award of the arbitrator will be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, we may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction.

WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THE SITE OR ANY PRODUCTS SOLD OR DISTRIBUTED THROUGH THE SITE, OR THE SMART CONTRACTS: (I) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (II) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.

Severability

Except as provided herein, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

Survival of Agreement

This Arbitration Agreement will survive the termination of your relationship with Fathom.

Modification

Notwithstanding any provision in these Terms to the contrary, we agree that if Fathom makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing to us at the following address: Fathom Yacht Club, LLC, 66 West Flagler Street Suite 900 Miami, FL 33130, Attention Legal Department

Severability

If any term, clause, or provision of these Terms is held invalid or unenforceable, then that term, clause, or provision shall be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, cause, or provision, or any other terms, clause, or provision of these Terms.

Entire Agreement

These Terms comprise the entire agreement between you and us relating to your access to and use of the Site, Site Content and any Fathom Yacht Club NFTs you have purchased, and supersede any and all prior discussions agreements, and understandings of any kind. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.

Fathom may make changes to the Terms at its discretion. Please check these Terms periodically for changes. Any changes to the Terms will apply on the date that they are made, and your continued access to or use after the Terms have been updated will constitute your binding acceptance of the updates. If you do not agree to any revised Terms, you may not access or use the Site.