Terms of Service
Last updated: October 20, 2023
Introduction
These terms of service (“ToS”) constitute a legally binding agreement between you (referred to herein as “you”, “your”, or “User”) and Phynite Corporation, a California Corporation located at 24445 Hawthorne Boulevard Torrance, CA 90501 (“Phynite”, “we”, “us”, or “our”), governing your interaction with the Service (as defined below). A Contractually Bound Non-Fungible Token (“CBNFT”) is a variant to a normal NFT. A CBNFT differs from a normal NFT because it can legally obligate a party to carry out actions based on what happens to the state of the NFT.
Certain services or elements of the Service, including without limitation any Phynite CBNFT or any Phynite profile hosted on a social media platform (e.g., Facebook, Twitter, Discord, or Instagram), may be subject to additional or supplemental terms, as set forth in these ToS or in connection with such services or elements and as are herein incorporated by reference (“Supplemental Terms” and, collectively with these ToS, the “Agreement”). If these ToS are inconsistent with any Supplemental Terms, the Supplemental Terms shall control solely with respect to such Service.
By browsing the website available at https://www.phynite.io/ (the “Website”), offering for sale or selling a Collectible (as defined below) through the Service, participating in the minting, purchase, acquisition, or sale of a Phynite CBNFT (either directly from us or in a Secondary Sale), making a purchase from a third party using our payment gateway (a “Third-Party Purchase”), storing an Collectible with or redeeming an Collectible from Phynite, participating in other social media properties, and/or using any of our other services (collectively, the “Service”), you expressly acknowledge and agree that you have read, understand, and agree to be bound by this Agreement. If you do not agree to the terms set forth in this Agreement, you must not access or use our Website or any Service, including to purchase any Phynite CBNFT or to offer for sale, sell, store, or redeem any Collectible.
THE SERVICE INCLUDES A MARKETPLACE WHICH ALLOWS SELLERS (AS DEFINED HEREIN) TO OFFER TO SELL AND SELL COLLECTIBLES AND PHYNITE CBNFTS, AND BUYERS TO OFFER TO BUY AND BUY COLLECTIBLES AND PHYNITE CBNFTS TO EACH OTHER. ALL COLLECTIBLES AVAILABLE THROUGH THE MARKETPLACE ARE FURNISHED BY OR ON BEHALF OF SELLERS IN CONNECTION WITH SUCH SALES. YOU AGREE THAT, EXCEPT WHERE PHYNITE IS THE SELLER IN SUCH SALE, WE SHALL NOT BE A PARTY TO OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR, ARISING OUT OF, RELATING TO, ASSOCIATED WITH OR RESULTING FROM ANY DISPUTES BETWEEN YOU AND ANY SELLER OF ANY COLLECTIBLE IN RESPECT OF THE USE, MISUSE, PROVISION OR FAILURE TO PROVIDE ANY SUCH COLLECTIBLE.
PLEASE READ SECTION 20 OF THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE AGREEING TO MANDATORY INDIVIDUAL ARBITRATION FOR THE RESOLUTION OF DISPUTES AND WAIVING YOUR RIGHT TO A JURY TRIAL ON YOUR CLAIMS.
PLEASE BE AWARE THAT SECTION 7 OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US.
THIS AGREEMENT IS IMPORTANT AND AFFECTS YOUR LEGAL RIGHTS, SO PLEASE READ CAREFULLY. BY CONNECTING YOUR WALLET (AS DEFINED BELOW) TO THE SERVICE, PURCHASING OR OFFERING TO PURCHASE PHYNITE CBNFTS THROUGH THE SERVICE, AND/OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL OF THE TERMS INCORPORATED HEREIN. If you do not agree to this Agreement, you may not access or use the Service or purchase any Phynite CBNFTs.
Please refer to our Privacy Notice for information about how we collect, use and share personal information about you. By submitting data through the Service, you expressly consent to the collection, use and disclosure of your personal data in accordance with the Privacy Notice.
Phynite reserves the right to change or modify this Agreement at any time and in our sole discretion. If we make changes to this Agreement, we will provide notice of such changes, such as by sending an email notification, providing notice through the Service or updating the “Last Updated” date at the beginning of these ToS. By continuing to access or use the Service at any point after such update, you confirm your acceptance of the revised ToS and all of the terms incorporated therein by reference. We encourage you to review this Agreement frequently to ensure that you understand the terms and conditions that apply when you access or use the Service. If you do not agree to the revised Agreement, you may not access or use the Service.
Our Service
Minting Process
Before the initial sale of the CBNFT, Users will have to fill out a Minting Pre-Verification Form which will include questions that ask for the details of the physical item they wish to submit. The form will include parts where users can submit images of the item as well, so experts at Phynite can do an initial eye test and ensure that the item is one that is allowed for minting at Phynite.
Users will have to sign a legally binding contract where we’ll ensure that they’ll have the right to reclaim the item as long as they send us the item which they submitted the Minting Pre-Verification Form for.
After an item has been approved, Phynite will then send a protective and insured box that users can send their physical item to the Phynite Vault. Upon receipt of the item, our experts will verify the validity of the item.
At the Phynite Vault, received collectibles are re-verified. Next, high quality photographs of the collectibles will be taken to represent the physical item as an NFT. Lastly, the collectible will be securely stored.
A CBNFT will be minted by authorized Ethereum accounts. We mint users’ CBNFT using their collectible’s scanned images and deposit it into their Ethereum wallet. The ownership will be transferred to the rightful owner who may burn the CBNFT to redeem the item, sell, auction, or transfer the CBNFT.
*The Minting Fees will be waived until October 20, 2024.
CBNFT Sales Process
CBNFTs are made available for purchase by Users through our Website. Listing your CBNFT for sale places it on the explore page and allows instant purchases by potential buyers. Each Phynite CBNFT represents a certain individual Collectible as depicted in or otherwise corresponding to the artwork or listing information embodied by such Phynite CBNFT (the “Collectible”). Each Collectible is owned by the individual or entity offering such Collectible for sale (the “Seller”). When the individual or entity (the “Initial Seller”) desires to offer a Collectible for sale, the Initial Seller can use the Service to offer a Phynite CBNFT depicting such Collectible. After your CBNFT’s first sale, you earn 1% of each subsequent trade’s value. Ownership of a Collectible is transferred at sale of the corresponding Phynite CBNFT from the Seller to the buyer of the Phynite CBNFT (the “Buyer”).
It may take up to 12 hours for the Buyer to receive the CBNFT of token id.
CBNFT Purchase Process
Upon purchase of a Phynite CBNFT, the Buyer of such Phynite CBNFT assumes the Seller’s rights and responsibilities under the Seller’s contract for Vault Services and may, subject to their ongoing compliance with this Agreement (including without limitation payment of the Phynite Fee (as defined below)), either continue to engage the Vault Services with respect to such any Collectible for which they own the corresponding Phynite CBNFT, offer for sale and sell such Phynite CBNFT (and the corresponding Collectible) to a third party, and/or submit their Phynite CBNFT to the Service in order to terminate the Vault Services and request delivery of the Collectible.
CBNFT Redemption Process
To receive a CBNFT, linked physical item, users activate the “burn” function. This function deletes the physical collectible’s CBNFT so that it cannot be digitally traded after being removed from the Phynite Vault. Before a user burns a CBNFT, we require a users’ preferred shipping address for the collectible. After the address is confirmed, users must pay any shipping and service fees to receive the collectible.
Phynite’s Role in the Sale and Purchase Process
Except where explicitly set forth at point of sale, Phynite is not the Seller of any Collectible listed on the Service. While we may, in our discretion, help facilitate resolution of disputes through various programs, we have no control over the quality of Collectibles offered by Sellers on the Service. We cannot control or guarantee the truth or accuracy of the Initial Seller’s listing, the ability of Sellers to sell Collectibles and/or Phynite CBNFTs, the ability of Buyers to pay for Collectibles and/or Phynite CBNFTs, or that a Buyer and Seller will actually complete a transaction with respect to Collectibles and/or Phynite CBNFTs listed on the Marketplace. While Phynite may provide pricing and guidance for Collectibles and/or Phynite CBNFTs sold by Sellers on our Marketplace, such information is solely informational. We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any Collectibles sold by the Initial Sellers or the subsequent Seller, or of the integrity, responsibility, or any actions of any Users. Phynite makes no representations about the suitability, reliability, timeliness or accuracy in public, private or offline interactions. When interacting with other Users you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting offline with other persons whom you don’t know. NEITHER PHYNITE NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICE. PHYNITE AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES OR YOUR USE OF OR INABILITY TO USE ANY COLLECTIBLE PURCHASED THROUGH THE SERVICES.
Cryptocurrency Transaction Information
In order to access and use certain features of the Service, including without limitation to purchase a Phynite CBNFT, you must connect to the Service using a software-based digital wallet that allows you to purchase, store, and engage in transactions using cryptocurrency and non-fungible tokens (your “Wallet”). ANY TRANSACTIONS INITIATED THROUGH OUR SERVICE ARE AFFECTED BY THIRD-PARTY DIGITAL WALLET EXTENSIONS. BY USING OUR SERVICE YOU AGREE THAT SUCH TRANSACTIONS ARE GOVERNED BY THE TERMS OF SERVICE AND PRIVACY NOTICE FOR THE APPLICABLE EXTENSIONS. You acknowledge and agree that certain information, including the public address of your Wallet and the transactions you conduct through that Wallet, may be publicly available and viewable on the applicable blockchain. Phynite does not own, operate, or control any blockchain or Wallet. Phynite is not an agent or intermediary of any User. Phynite does not store or have access to or control over any Phynite CBNFTs or any of a User’s private keys, passwords, Wallets, or other property. Phynite is not capable of performing transactions or sending transaction messages on behalf of any User. All transactions related to or initiated through the Service are recorded solely through the interactions of the User with the respective blockchain, which is not under the control of or affiliated with Phynite or the Service.
Purchase and Sale of Phynite CBNFT Policies
All pricing and payment terms for Phynite CBNFTs are as indicated at point of sale or otherwise on the Service, and any payment obligations you incur are binding at the time of purchase. You may not substitute any other currency, whether cryptocurrency or fiat currency, for the currency in which you have contracted to pay at the time of purchase. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, shall impact or excuse your obligations with respect to any purchase.
We cannot, and expressly do not, guarantee that Phynite CBNFTs will be available for purchase at the time you seek to purchase one.
When you purchase a Phynite CBNFT on our Website from an Initial Seller, such Phynite CBNFT is minted directly into the Wallet through which you connected to the Website and initiated payment. When you purchase a Phynite CBNFT from any then-current Seller after the Initial Seller, such Phynite CBNFT is transferred directly from the Seller to you. Except where Phynite is the Buyer or Seller of a Phynite CBNFT, Phynite does not hold custody of, nor take ownership or possession of, any Phynite CBNFT. Phynite CBNFTs can be transferred between Wallets on the Ethereum network (or any then-compatible blockchain or comparable third-party service).
You are responsible for ensuring that your Wallet has a sufficient amount of funds to cover the full cost of your purchase, including without limitation (i) transaction fees imposed by a third-party payment processor, (ii) any Taxes (as defined below), and (iii) Gas Fees. “Gas Fees” are fees assessed in connection with the computing energy required to process and validate transactions on a blockchain and may fluctuate in accordance with market conditions or activity on such blockchain. Phynite does not receive and has no authority with respect to any Gas Fees.
Any payments made to us via the Website will be effectuated through the underlying blockchain. We have no control over these payments or transactions initiated through your Wallet, nor do we have the ability to reverse any such payments or transactions. Phynite may add or change any payment processing Service at any time. Such Service may be subject to additional terms or conditions. Whether a particular cryptocurrency is accepted as a payment method by Phynite is subject to change at any time in Phynite’s sole discretion. You acknowledge that Phynite has no liability to you or to any third party for any claims or damages that may arise as a result of your payment not reaching us, including, but not limited to, instances where your purchase fails due to a processing error of your payment on the applicable blockchain or bridge extension. It is solely your responsibility to confirm that your payment for a Phynite CBNFT has been accepted.
If you have any issues with respect to your purchase of any Phynite CBNFT, please contact us. We will do our best to resolve any issues in accordance with our then-current policies and procedures. You are solely responsible for determining and paying (or reimbursing for the payment of) any and all sales, use, value-added and other taxes, duties, and assessments (excluding taxes imposed on our net income) now or hereafter claimed or imposed by any tax or other governmental authority associated with your use of our Website or transactions of any Phynite CBNFT (collectively, the “Taxes”). You will pay or reimburse us for all Taxes of any jurisdiction (whether national, federal, state, local, foreign or other), including value added taxes and other similar amounts as are now or hereafter may be imposed under the authority of any national, federal, state, local, foreign or other taxing jurisdiction; and will not be entitled to deduct the amount of any such Taxes or amounts levied in lieu thereof from payments (including, without limitation, Gas Fees) made pursuant to this Agreement.
When you purchase or otherwise acquire a Phynite CBNFT, you agree that you have read, understand, and agree to be bound by any terms and conditions applicable to the use and sale of that Phynite CBNFT, including payment of Phynite Fees (regardless of whether any Phynite Fee is enforced or supported by the third-party platform or marketplace that facilitates such sale). You further agree that you will bind any subsequent purchaser of the Phynite CBNFT to such terms and conditions.
By offering any Collectible or Phynite CBNFT on or through the Service, you hereby appoint Phynite as your limited payments agent for the sole purpose of receiving, holding and settling payments due and owed to you arising out of such Collectible or Phynite CBNFT. Phynite will process such payments and settle payments that are actually received by Phynite, less any amounts owed to Phynite, including taxes, fees and other obligations, and subject to the terms of this Agreement. You agree that a payment received by Phynite, on your behalf, satisfies the payor’s obligation to make payment to you, regardless of whether Phynite actually settles such payment to you. If Phynite does not settle any such payments as described in this Agreement to you, you will have recourse only against Phynite and not the payor, as payment is deemed made by the payor to you upon constructive or actual receipt of such payment by Phynite.
Initial Seller Agreement
When an Initial Seller makes a Collectible available for sale on the Service, they represent and warrant that (i) they are the owner of such Collectible; (ii) they have all rights in and to the Collectible necessary to make such Collectible available on the Service and to mint a Phynite CBNFT corresponding to such Collectible; (iii) that they will not offer the Collectible for sale on any other service or any marketplace for so long as the corresponding Phynite CBNFT is available for sale; and (iv) that the Collectible complies with Phynite’s then-current Collectible Listing Guidelines.
On or before the primary sale of a Phynite CBNFT, the Initial Seller agrees to deliver the corresponding Collectible to Phynite for storage. The Initial Seller is solely responsible for any loss of or damage to any Collectible prior to Phynite’s confirmed receipt of the same. Each Initial Seller shall be entitled to receive a percentage of the Net Revenue received by Phynite from the Collectible Services provided by Phynite with respect to Collectibles originally made available by such Initial Seller (the “Initial Seller Revenue Share”). “Net Revenue” means the total consideration received by Phynite as a Phynite Fee with respect to any such Collectible (“Revenue”), less any fees as may be mutually agreed upon by the parties in writing.
Each Initial Seller must provide Phynite with a Wallet address supported by the Service in order to receive any cryptocurrency Net Revenue payable to such Initial Seller. Phynite shall have no liability arising out of or relating to the Wallet address, payment processor information, or other banking or payment account information provided by you (e.g., any errors, circumstances, acts or omissions resulting in loss of funds). Phynite reserves the right, but has no obligation, to confirm that the provenance and condition of each Collectible received by Phynite from an Initial Seller are as described by such Initial Seller. In the event that Phynite reasonably determines that a Collectible does not conform with the Initial Seller description and/or the Collectible Listing Guidelines, Phynite shall return such Collectible to the Initial Seller at the Initial Seller’s expense. If a Buyer has purchased a Phynite CBNFT corresponding to any such Collectible, Phynite may cancel or refund such purchase in accordance with its then-current policies and procedures. For more information, please contact us at support@phynite.io.
You acknowledge and agree that you, and not Phynite, are solely responsible for providing support to Buyers in connection with the sale of any Phynite CBNFTs corresponding to your Collectibles. While Phynite may in its sole discretion elect to provide technical support to its Users in connection with the sale of any Phynite CBNFTs, Phynite has no obligation to you to provide any such support.
In the event of a dispute between you and any third party related to Phynite CBNFTs or Collectibles made available by you, including without limitation any dispute between you and a Buyer, Seller, or payment services provider, Phynite will not be a party to any such dispute. YOU ARE SOLELY RESPONSIBLE FOR DISPUTE RESOLUTION IN CONNECTION WITH YOUR COLLECTIBLES AND YOUR PHYNITE CBNFTS. You shall have no recourse against Phynite in connection with any claims that arise from disputes between you and any third party arising from or related to your Collectibles or your Phynite CBNFTs.
Phynite reserves the right to remove any Initial Seller from the Service and to terminate such Initial Seller’s ability to offer Collectibles through the Service at any time, with or without notice, (i) upon Phynite’s reasonable belief that such Initial Seller has breached this Agreement; or (ii) in the event that Phynite terminates the applicable Service.
Vault Services
Phynite reserves the right to remove any Initial Seller from the Service and to terminate such Initial Seller’s ability to offer Collectibles through the Service at any time, with or without notice, (i) upon Phynite’s reasonable belief that such Initial Seller has breached this Agreement; or (ii) in the event that Phynite terminates the applicable Service. Our Vault Services include the receipt of Collectibles from Initial Sellers, the storage of Collectibles on behalf of the then-current owner of the corresponding Phynite CBNFT, the listing and relisting of Collectibles as Phynite CBNFTs, and the shipment of Collectibles to the then-current owner of the corresponding Phynite CBNFT upon redemption of such Phynite CBNFT.
Phynite represents that all Collectibles are and will remain in the constructive possession of Phynite following the receipt of such Collectibles from the applicable Initial Seller of such Collectibles, until and unless such Collectibles are transferred to the then-current owner of the associated Phynite CBNFT. Phynite uses good faith efforts to maintain the integrity of each Collectible subject to Vault Services, including through partnerships with best-in-class providers of Collectible storage and shipping services. Phynite shall maintain an insurance policy covering such Collectibles sufficient to cover the fair market value of each such Collectible at the time of receipt by Phynite. Notwithstanding the foregoing, Phynite shall not be liable to you for any loss, damage, or destruction of any Collectible subject to the Vault Services except to the extent arising from Phynite’s gross negligence or willful misconduct.
When you sell any Phynite CBNFT, you represent and warrant to and for the benefit of both Phynite and the applicable Buyer that you have no outstanding liabilities with respect to any Vault Services, and you acknowledge and agree that you shall assign to the Buyer, and the Buyer shall assume by way of novation, your agreement with Phynite for such Vault Services (the “Assumed Contract”). For the avoidance of doubt, the Assumed Contract excludes the Initial Seller Revenue Share, which shall remain at all times a contract between the Initial Seller and Phynite. Phynite shall, upon the sale of any Phynite CBNFT in accordance with this Agreement and the receipt of the Phynite Fee in connection with such transaction, release the Seller from the Assumed Contract.
When you purchase any Phynite CBNFT, you acknowledge and agree that (i) the Seller from which you purchased such Phynite CBNFT is released from the Assumed Contract; (ii) by way of novation, you assume such Seller’s rights and are bound by and shall perform such Seller’s obligations and liabilities under the Assumed Contract; and (iii) you are entering into a binding legal agreement with Phynite for the Vault Services with respect to such Collectible. You may terminate the Assumed Contract at any time by selling the corresponding Phynite CBNFT and assigning the Assumed Contract by way of novation to the Buyer of such Phynite CBNFT; or redeeming your Phynite CBNFT for the underlying Collectible.
Following your purchase of a Phynite CBNFT, you may request to receive the Collectible associated with your Phynite CBNFT through the Website or otherwise through the Service. As a precondition of any transfer of the associated Collectible, Phynite shall verify (i) your identity, (ii) your compliance with this Agreement and eligibility to use the Service; and (iii) your ownership of such Phynite CBNFT. If Phynite transfers such Collectible to you, the associated Phynite CBNFT shall be burned by Phynite.
Your redemption of a Phynite CBNFT for a Collectible may be subject to additional fees for such redemption, including without limitation Taxes and shipping and handling fees, in each case as determined in Phynite’s sole discretion, as set forth on the Service, and as may be subject to change from time to time in Phynite’s sole discretion.
User Agreements, Representations and Warranties
You must be eighteen (18) years old or otherwise capable of forming a binding contract in your jurisdiction to use the Service. By using the Service, you agree (i) to provide accurate, current, and complete information about yourself as requested, (ii) to maintain and promptly update such information from time to time as necessary, (iii) to maintain the security of your Wallet and accept all risks of unauthorized access to your Wallet and to the information you provide to us, and (iv) to notify us immediately if you discover or otherwise suspect any security breaches related to the Service or your Wallet.
You will not buy, sell, rent, or lease access to the Service without our written permission or access or attempt to access the Service through unauthorized third-party applications or clients.
Phynite may require you to provide additional information and documents from time to time, including without limitation at the request of any competent governmental authority or in order to help Phynite comply with applicable law, regulation, or policy, including laws related to anti-laundering (legalization) of incomes obtained by criminal means, or for counteracting financing of terrorism. Phynite may also require you to provide additional information and documents in cases where it has reason to believe that: (i) your Wallet or other means of access to the Service is being used for money laundering or for any other illegal activity; (ii) You have concealed or reported false identification information and other details; or (iii) transactions effected via your Wallet may have been done in breach of this Agreement. In such cases, Phynite, in its sole discretion, may pause or cancel your transactions until such requested additional information and documents have been reviewed and deemed satisfactory by Phynite. If you do not provide complete and accurate information and documents in response to such a request, Phynite may refuse to provide any Phynite CBNFT, Content (as defined below), product, service and/or further access to the Service to you.
When you use the Service, you hereby represent and warrant, to and for the benefit of Phynite, its affiliates and its and their respective representatives, as follows:
Authority. You have all requisite capacity, power and authority to enter into, and perform your obligations under this Agreement, including to mint, sell, or buy any Phynite CBNFTs, as applicable.
Valid Execution. This Agreement constitutes your legal, valid and binding obligation, enforceable against you in accordance with this Agreement.
Accuracy of Information. All information provided to Phynite and/or its third-party designees by you, including your address and social security number or tax ID number, is accurate and complete.
Sanctions. You are not, and you will not authorize, enable, or permit any use of the Service by any person that is: (1) in, under the control of, or a national or resident of any jurisdiction subject to a U.S. trade embargo; or (2) identified on any export- or sanctions-related restricted party list, including but not limited to the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or the U.S. Department of Commerce’s Denied Persons List, Unverified List, or Entity List.
Non-Contravention. This Agreement does not, and the performance of your obligations under this Agreement and your minting, listing, buying, or selling of any Phynite CBNFTs, as applicable to your use of the Service, will not: (i) if you are an entity, conflict with or violate any of the charter documents of such entity or any resolution adopted by its equity holders or other persons having governance authority over the entity; (ii) contravene, conflict with or violate any right of any third party or any applicable legal requirement to which you or any of the Collectibles owned or used by you, is subject; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under any material contract or agreement to which you are a party, permit held by you or legal requirement applicable to you.
Independent Investigation and Non-Reliance. You are sophisticated, experienced and knowledgeable in the minting or buying of non-fungible tokens and other cryptoassets. Additionally, you have conducted an independent investigation of the Service and the matters contemplated by this Agreement, have formed your own independent judgment regarding the benefits and risks of and necessary and desirable practices regarding the foregoing, and, in making the determination to mint, list, buy, or sell any Phynite CBNFTs using or in connection with your use of the Service, you have relied solely on the results of such investigation and such independent judgement. Without limiting the generality of the foregoing, you understand, acknowledge and agree that the legal requirements pertaining to blockchain technologies and digital assets generally, including the Phynite CBNFTs, are uncertain, and you have conducted an independent investigation of such potentially applicable legal requirements and the resulting risks and uncertainties, including the risk that one or more governmental entities or other persons may assert that any digital assets or cryptographic tokens (including the Phynite CBNFTs) may constitute securities under applicable legal requirements. You hereby irrevocably disclaim and disavow reliance upon any statements or representations made by or on behalf of, or information made available by Phynite in determining to enter into this Agreement, mint, list, buy, or sell any Phynite CBNFTs, or otherwise use the Service.
Litigation. There is no legal proceeding pending that relates to your activities relating to the minting of Phynite CBNFTs or other CBNFT- or digital asset- trading or blockchain technology related activities.
Compliance. You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies. No investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity or practice relating to the Service. You must provide all equipment, including without limitation hardware and software, necessary to connect to the Service. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service.
Consent to Electronic Communication
By contacting Phynite via email, or by using the Service, you consent to receive electronic communications from Phynite (e.g., via email or by posting notices to the Service). These communications may include notices about your use of the Service (e.g., transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We have no obligation to store for your later use or access any such electronic communications that we make to you.
Ownership
Unless otherwise indicated in writing by us, the Service and all content and other materials contained therein, including, without limitation, the Phynite logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Phynite.
The Phynite logo and any Phynite product or service names, logos or slogans that may appear on the Service are trademarks of Phynite 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 metatags or other “hidden text” utilizing “Phynite,” or any other name, trademark or product or service name of Phynite or our affiliates without our prior written permission. In addition, the look and feel of the Service and Content, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Phynite and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and other names or logos mentioned on the Service 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. Reference to any products, Service, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Phynite.
You agree that any submission of any ideas, suggestions, documents, and/or proposals to Phynite (collectively, “Feedback”) is at your own risk and that Phynite has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Phynite a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Service and Phynite’s other products and Service.
License to Our Service and Content
You are hereby granted a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, “as-is” license to access and use the Service and Content for your own personal, non-commercial use; provided, however, that such license is subject to this Agreement and does not include any right to (i) sell, resell, or use commercially the Service or Content; (ii) distribute, publicly perform, or publicly display any Content except as expressly permitted by us; (iii) modify or otherwise make any derivative uses of the Service or Content, or any portion thereof, except as expressly permitted by us; (iv) use any data mining, robots, or similar data gathering or extraction methods; (v) download (other than page caching) any portion of the Service or Content, except as expressly permitted by us; and (vi) use the Service or Content other than for their intended purposes. This license is subject to your compliance with the Acceptable Use Policy set forth in Section 12 below.
You may not use a logo or other proprietary graphic of Phynite to link to the Service or Content without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Phynite trademark, logo or other proprietary information, including the images found on the Service, the content of any text or the layout or design of any page, or form contained on a page, on the Service without our express written consent.
Phynite may from time-to-time change or discontinue any or all aspects or features of the Service, including by (i) altering the smart contracts which are included in the applicable blockchain pursuant to upgrades, forks, security incident responses or chain migrations, (ii) deactivating or deleting Content that Phynite in its sole discretion determines has been abandoned; or (iii) repossessing any Phynite CBNFTs that Phynite in its sole discretion determines have been abandoned or used or acquired in violation of this Agreement. In such events, you may no longer be able to access, interact with or read the data from the Service.
User Content
Certain Content may be made available by a User on or through the Service, including without limitation in connection with the listing of a Phynite CBNFT by an Initial Seller and through Phynite’s third-party social media accounts or pages (“User Content”). If you choose to make User Content available on or through the Service, you hereby grant Phynite a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, sublicense, distribute, reproduce, modify, adapt, and display, such User Content (in whole or in part) for the purposes of (i) providing the Service, including making User Content available to other Users in accordance with your elections on the Service, (ii) improving the Service, and (iii) advertising and promoting Phynite and its products and Service. You also hereby grant each other User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content solely as permitted through the functionality of the Service and under this Agreement. You are solely responsible for any User Content you provide. You represent and warrant that you have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any User Content that you submit, post or display on or through the Service. You agree that such User Content will not contain material subject to copyright or other proprietary rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant the licenses described above. We take no responsibility for the User Content posted or listed via the Service, although we reserve the right to remove any User Content that is in violation of this Agreement.
Third-Party Service; Third-Party Terms
The Service may contain links to third-party properties, Service and applications (collectively, “Third-Party Service”). When you click on a link to a Third-Party Service, such as a bridge extension, you are subject to the terms and conditions (including privacy policies) of another property or application. Such Third-Party Service are not under the control of Phynite. Phynite is not responsible for any Third-Party Service. Phynite provides links to these Third-Party Service only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Service, or their products or services. You use all links in Third-Party Service at your own risk. When you leave our Service, our terms and policies no longer govern. You should review all applicable agreements and policies, including privacy and data gathering practices, of any Third-Party Service, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Acceptable Use Policy
You agree that you are solely responsible for your conduct in connection with the Service. You agree that you will abide by this Agreement and will not (and will not attempt to):
Provide false or misleading information to Phynite;
Use or attempt to use another User’s linked Wallet without authorization from such User and Phynite;
Create, list, or otherwise make available through or in connection with the Service any counterfeit Phynite CBNFTs;
Pretend to be another person or entity;
Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully enjoying the Service, or that could damage, disable, overburden or impair the functioning of the Service in any manner;
Develop, utilize, or disseminate any software, or interact with any API in any manner, that could damage, harm, or impair the Service;
Reverse engineer any aspect of the Service, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Service;
Attempt to circumvent any content-filtering techniques we employ, or attempt to access any feature or area of the Service that you are not authorized to access;
Use any robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Service, extract data or otherwise interfere with or modify the rendering of Service pages or functionality;
Collect or harvest data from our Service that would allow you to contact individuals, companies, or other persons or entities, or use any such data to contact such entities;
Use data collected from our Service for any direct marketing activity (including without limitation, email marketing, SMS marketing, telemarketing, and direct marketing);
Bypass or ignore instructions that control all automated access to the Service;
Use the Service for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates any applicable law or this Agreement;
Use the applicable blockchain to carry out any illegal activities in connection with or in any way related to your access to and use of the Service, including but not limited to money laundering, terrorist financing or deliberately engaging in activities designed to adversely affect the performance of such blockchain, or the Service;
Engage in or knowingly facilitate any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities, including:
trading a Phynite CBNFT at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such Phynite CBNFT, unduly or improperly influencing the market price for such Phynite CBNFT trading on the Service or establishing a price which does not reflect the true state of the market in such Phynite CBNFT;
for the purpose of creating or inducing a false or misleading appearance of activity in a Phynite CBNFT or creating or inducing a false or misleading appearance with respect to the market in a Phynite CBNFT: (A) executing or causing the execution of any transaction in a Phynite CBNFT which involves no material change in the beneficial ownership thereof; or (B) entering any order for the purchase or sale of a Phynite CBNFT with the knowledge that an order of substantially the same size, and at substantially the same price, for the sale of such Phynite CBNFT, has been or will be entered by or for the same or different parties; or
participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of a Phynite CBNFT;
Use the Service to carry out any financial activities subject to registration or licensing, including but not limited to using the Service to transact in securities, debt financings, equity financings or other similar transactions;
Use the Service to participate in fundraising for a business, protocol, or platform, including but not limited to creating, listing, or buying Collectibles that (i) are redeemable for financial instruments, (ii) give owners rights to participate in an ICO or any securities offering, or (iii) entitle owners to financial rewards, including but not limited to, DeFi yield bonuses, staking bonuses, and burn discounts; or
Copy or use this website for research or training purposes for artificial intelligence such as ChatGPT or other similar technologies.
Copyright
Phynite retains the absolute right to terminate access to the Service and remove any User’s Content that violates or infringes our rights or the rights of any third party. Without limiting the foregoing, if you believe that your intellectual property has been used on the Service in a way that constitutes infringement, please provide our Copyright Agent with the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of the location on the Service of the material that you claim is infringing;
your address, telephone number and e-mail address;
a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Contact information for Phynite’s Copyright Agent for notice of claims of copyright infringement is as follows: support@phynite.io.
Investigations
If Phynite becomes aware of any possible violations by you of this Agreement, Phynite reserves the right to investigate such violations. If, as a result of the investigation, Phynite believes that criminal activity may have occurred, Phynite reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Phynite is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Service, including your Content, in Phynite’s possession in connection with your use of the Service, (i) to comply with applicable laws, legal process or governmental request; (ii) to enforce this Agreement, (iii) to respond to any claims that User Content violates the rights of third parties, (iv) to respond to your requests for customer service, or (v) to protect the rights, property or personal safety of Phynite, its Users, or the public, and all law enforcement or other government officials, as Phynite in its sole discretion believes to be necessary or appropriate. Your agreement to these Terms of Service provides your irrevocable consent to the foregoing. Also, you acknowledge and agree that you have no expectation of privacy concerning your use of the Service, including without limitation text, voice, or video communications.
Release
You hereby release and forever discharge Phynite and our officers, employees, agents, successors, and assigns (the “Phynite Entities”) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other Users of the Service or any Third-Party Service). YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, OR ANY SIMILAR LAW OR RULE OF ANY OTHER JURISDICTION, WHICH STATES IN SUBSTANCE: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Assumption of Risk Related To Phynite CBNFTs
You acknowledge and agree that:
You are solely responsible for determining what, if any, taxes apply to your transactions involving Phynite CBNFTs. Neither Phynite nor any other Phynite Entity is responsible for determining the taxes that may apply to transactions involving Phynite CBNFTs;
Phynite CBNFTs exist and can be transferred only by virtue of the ownership record maintained on the blockchain supporting such Phynite CBNFTs;
There are risks associated with using digital currency and digital assets, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to your information;
The legal and regulatory regime governing blockchain technologies, cryptocurrencies, and CBNFTs is evolving, and new regulations or policies may materially adversely affect the same;
There are risks associated with purchasing user-generated content, including but not limited to, the risk of purchasing counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable;
Phynite reserves the right to hide collections, contracts, and Collectibles that Phynite suspects or believes may violate this Agreement. Phynite CBNFTs you purchase may become inaccessible on the Service. Under no circumstances shall the inability to access or view your Collectibles on the Service serve as grounds for a claim against Phynite; and
Phynite has no responsibility for any Phynite CBNFTs after the initial offering or sale of such Phynite CBNFTs. Phynite does not investigate and cannot guarantee or warrant the authenticity, originality, uniqueness, marketability, legality or value of any Phynite CBNFT.
Indemnification
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Phynite 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 or associated with pursuing indemnification and insurance), of every kind and nature whatsoever arising out of or related to this Agreement or your use of the Service, 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 Service, Content or Phynite CBNFTs, including, without limitation, any act or omission involving any third party in connection with the minting, listing, buying, selling, or trading of any Phynite CBNFTs hereunder; (b) any Feedback you provide; (c) your violation of this Agreement; (d) your violation of the rights of any third party, including another User; (e) any breach or non-performance of any covenant or agreement made by you; (f) your Content or the minting, listing, buying, selling, or trading of any Phynite CBNFTs; or (g) any Collectibles (including the furnishing, or any failure to furnish, or any acts or omissions of or attributable to you or any third party in respect of the same). You agree to promptly notify Phynite of any third-party Claims and cooperate with the Phynite Entities in defending such Claims. You further agree that Phynite 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 ANY OTHER SEPARATE WRITTEN AGREEMENTS BETWEEN YOU AND PHYNITE.
Disclaimers
THE SERVICE, CONTENT CONTAINED THEREIN, AND PHYNITE CBNFTS LISTED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. PHYNITE (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. PHYNITE DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SERVICE OR ANY CONTENT CONTAINED THEREIN. PHYNITE DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. WHILE PHYNITE ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT SAFE, PHYNITE CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, OR ANY PHYNITE CBNFTS LISTED ON OUR SERVICE 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 LOSSES YOU SUSTAIN AS A RESULT OF YOUR USE OF THE SERVICE, INCLUDING IN CONNECTION WITH ANY RECOMMENDATION. WE TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY PURCHASE OR USE OF PHYNITE CBNFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED DIGITAL WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTE-FORCE ATTACKS OR OTHER MEANS OF ATTACK AGAINST THE SERVICE, PHYNITE CBNFTS OR DIGITAL WALLETS.
PHYNITE CBNFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE LEDGER WITHIN THE BLOCKCHAIN PLATFORM. WE DO NOT GUARANTEE THAT PHYNITE OR ANY PHYNITE ENTITY CAN AFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY PHYNITE CBNFTS. WE CANNOT AND DO NOT GUARANTEE THAT ANY PHYNITE CBNFT WILL HAVE OR RETAIN ANY INHERENT VALUE, OR THAT YOU WILL BE ABLE TO SELL OR RESELL ANY PHYNITE CBNFT PURCHASED THROUGH THE SERVICE.
Phynite is not responsible for any losses or harms sustained by you due to vulnerability or any kind of failure, abnormal behavior of software (e.g., smart contract), blockchains, or any other features of or inherent to the Phynite CBNFTs. Phynite is not responsible for any delay or failure to report any issues with any blockchain supporting Phynite CBNFTs, including without limitation forks, technical node issues, or any other issues that result in losses of any sort.
YOU ACKNOWLEDGE AND AGREE THAT PHYNITE IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD PHYNITE LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING ANY SELLERS OF COLLECTIBLES OR PHYNITE CBNFTS OR ANY THIRD-PARTY OFFERORS OF PHYNITE CBNFTS OR OFFEROR CBNFTS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE. YOU UNDERSTAND THAT PHYNITE DOES NOT MAKE ANY ATTEMPT TO VERIFY ALL OF THE STATEMENTS OF USERS OF THE SERVICE OR THIRD-PARTY SELLERS OF PHYNITE CBNFTS. PHYNITE MAKES NO WARRANTY THAT ANY GOODS OR SERVICE PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
EXCEPT WHERE PHYNITE IS THE BUYER OR SELLER, PHYNITE IS NOT INVOLVED IN THE ACTUAL TRANSACTION BETWEEN BUYERS AND SELLERS. WHILE WE MAY HELP FACILITATE THE RESOLUTION OF DISPUTES THROUGH VARIOUS PROGRAMS, WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF COLLECTIBLES ADVERTISED, THE TRUTH OR ACCURACY OF USER CONTENT OR LISTINGS, THE ABILITY OF SELLERS TO SELL COLLECTIBLES, THE ABILITY OF BUYERS TO PAY FOR COLLECTIBLES, OR THAT BUYER OR SELLER WILL ACTUALLY COMPLETE A TRANSACTION.
We do not transfer legal ownership of Collectibles from the Seller to the Buyer. California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise. Further, we cannot guarantee continuous or secure access to the Service and operation of the Service may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions.
Nothing in this Agreement 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 under the laws applicable to your jurisdiction. 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 PHYNITE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT, THE SERVICE, ANY PHYNITE CBNFTS, 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, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF PHYNITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS UNDERTAKEN BY YOU 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 PHYNITE ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, YOUR ACCESS TO AND USE OF THE SERVICE, CONTENT (INCLUDING YOUR CONTENT), THE VAULT SERVICES, OR ANY PHYNITE CBNFTS MINTED, PURCHASED, OR SOLD THROUGH THE SERVICE EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT RETAINED BY PHYNITE IN THE TRANSACTION OR INCIDENT THAT IS THE SUBJECT OF THE CLAIM.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Dispute Resolution
Please read carefully the following arbitration agreement (“Arbitration Agreement”). It requires you to arbitrate disputes with Phynite and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Service, to any products sold or distributed through the Service, or to any aspect of your relationship with Phynite, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Phynite 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). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
Arbitration Rules and Forum. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to us at support@phynite.io.
The Arbitration will be conducted by the California Lawyers for the Arts, Arts Arbitration and Mediation Services. The arbitrator shall be selected in accordance with the rules of Arts Arbitration and Mediation Services. If such services are not available, the dispute shall be submitted to the American Arbitration Association in accordance with the laws of the State of California. Arbitration shall occur in California. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND PHYNITE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 20(a) (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in San Francisco, California. All other disputes, claims, or requests for relief shall be arbitrated.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to support@phynite.io within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the Wallet address used to connect to the Service (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Severability. Except as provided in Section 20(e) (Waiver of Class or Other Non-Individualized Relief), 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 us.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing us at support@phynite.io and expressly opting out of this Arbitration Agreement.
General
The Service may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to use, export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Phynite, or any products utilizing such data, in violation of the United States export laws or regulations. You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws. You acknowledge and agree that products, services or technology provided by Phynite are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Phynite products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations. This Agreement, and your access to and use of the Service, shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to any conflict of law rules or principles 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 Los Angeles, California. We reserve the right in our sole discretion to (i) modify, suspend, or discontinue the Service, or any features or parts thereof, whether temporarily or permanently, at any time with or without notice to you; and (ii) terminate your right to access or use the Service at any time and for any or no reason. You acknowledge and agree that we shall have no liability or obligation to you in connection with any such event as described in the foregoing sentence and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of this Agreement is held invalid or unenforceable, then that term, clause or provision will be severable from this Agreement and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of this Agreement. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Phynite. Phynite’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Except as otherwise provided herein, this Agreement is intended solely for the benefit of Phynite and you and shall not confer third party beneficiary rights upon any other person or entity.
Contact Information: support@phynite.io
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