Last Updated: April 19, 2021
Welcome to NyanDogg, a digital non-fungible token (“NFT”) collaboration between NyanCat and SnoopDogg! NyanDogg is a decentralized application and digital assets platform operating on the Ethereum blockchain. NyanDogg uses specially-developed smart contracts made by nft42 that enable the purchasing of digital creations on a peer-to-peer digital marketplace.
Legally Binding Agreement
THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE OR PLATFORM. BY ACCESSING OR USING THE SITE, SERVICES, OR SMART CONTRACTS YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, YOU ARE PROHIBITED FROM ACCESSING, USING, OR TRANSACTING ON THE SITE OR PLATFORM. YOU MAY NOT ACCESS OR USE THE PLATFORM OR ACCEPT THESE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE OTHERWISE LEGALLY PERMITTED TO USE THE SERVICES IN YOUR JURISDICTION AND THAT THE COMPANY IS NOT LIABLE FOR YOUR COMPLIANCE WITH SUCH APPLICABLE LAWS. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE PLATFORM. THESE TERMS SHALL BE EFFECTIVE AS OF THE DATE OF YOUR FIRST USE OF THE PLATFORM (“EFFECTIVE DATE”).
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Accessing the Platform
To access and use the Platform, you should first install the Google Chrome or Brave web browser. Once you have installed Chrome or Brave, you will need to create an electronic wallet with MetaMask, Portis, or WalletConnect, which allows you to purchase, store, and engage in transactions using the native Ethereum cryptocurrency, ETH. You will not be able to engage in any transactions on the Platform other than through MetaMask, Portis, or WalletConnect (or other Ethereum-compatible browsers). The Platform will only recognize you as a User, and you will only be able to interact with the Platform, if your Ethereum electronic wallet is connected and unlocked through your MetaMask, Portis, or WalletConnect account. There is no other way to sign up as a User, or to interact directly with the Platform.
Transactions Are Recorded on the Public Ethereum Blockchain
Transactions that take place on the Platform are managed and confirmed via the Ethereum blockchain. The User understands that your Ethereum public address will be made publicly visible whenever you engage in a transaction on the Platform. We neither own nor control MetaMask, Portis, WalletConnect, Google Chrome, Brave browser, the Ethereum network, or any other third-party site, product, or service that you might access, visit, or use for the purpose of enabling you to use the various features of the Platform. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that you may suffer as a result of your transactions or any other interaction with any such third parties.
The Platform is Property of Nyanify
You acknowledge and agree that we (or, as applicable, our licensors) own all legal right, title and interest in and to all elements of the Platform. The graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Platform (collectively, the “NyanDogg Materials”) are owned by Nyanify, and are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All NyanDogg Materials are the copyrighted property of Nyanify or its licensors, and all trademarks, service marks, and trade names contained in the NyanDogg Materials are proprietary to Nyanify or its licensors. Except as expressly set forth herein, your use of the Platform does not grant you ownership of or any other rights with respect to any content, code, data, or other materials that you may access on or through the Platform. We reserve all rights in and to the NyanDogg Materials not expressly granted to you in the Terms.
All Work (“Art” or “Work(s)”) on the Platform is represented by a unique cryptographic token exclusively Minted by NyanDogg. Each NyanDogg Item (“Item(s)”, “Token(s)”, “Non-fungible token(s)”, or “NFT(s)”) is Minted using the NyanDogg Smart Contracts based on original Work. NyanDogg Items are forever tracked and stored on the Ethereum blockchain, providing the Collector of a NyanDogg Item with a permanent record of authenticity and ownership.
NyanDogg is a Non-Custodial Service Provider
The Smart Contracts and the Website facilitate User collection of NyanDogg Items, but Nyanify and its affiliates, the Platform, and the Smart Contracts are not the custodians of any User-owned NyanDogg Items. The User understands and acknowledges that the Smart Contracts do not give Nyanify custody, possession, or control of any NyanDogg Items or cryptocurrency at any time for the purpose of facilitating NyanDogg Item transactions. You affirm that you are aware and acknowledge that Nyanify is a non-custodial service provider and has designed this Platform to be directly accessible by the Users without any involvement or actions taken by Nyanify or any third-party.
User Account and Security
User is Responsible for Account Security
You are solely responsible for the security of your account and your MetaMask, Portis, or WalletConnect wallet (and other Ethereum wallets and accounts). You agree to undertake to maintain at all times adequate security and control of all of your Account details, passwords, personal identification numbers or any other codes that you use to access the Platform or the Services.
User May Not Use the Platform for Illegal Activity
You agree to use the Platform only for purposes that are legal, proper and in accordance with these Terms and any applicable laws or regulations. Without limitation, you may not, and may not allow any third party to: (i) undertake any unlawful activity which would violate, or assist in violation of, any law, statute, ordinance, or regulation, sanctions program administered in any relevant country, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or which would involve proceeds of any unlawful activity; (ii) distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (iii) impersonate another person (via the use of an email address or otherwise); (iv) operate to defraud Nyanify, other users, or any other person or provide false, inaccurate or misleading information; (v) use the Platform to violate or infringe the legal rights (such as, but not limited to, rights or privacy, publicity and intellectual property) of others; (vi) engage in, promote, or encourage illegal activity (including, without limitation, terrorism, tax evasion or money laundering); (vii) interfere with another individual’s or entity’s access to or use of the Platform; (viii) harvest or otherwise collect information from the Platform about others without proper consent; (ix) exploit the Platform for any unauthorized commercial purpose; (x) modify, adapt, translate, or reverse engineer any portion of the Platform; (xi) remove any copyright, trademark or other proprietary rights notices contained in or on the Platform or any part of it; (xii) reformat or frame any portion of the Platform; (xiii) display any content on the Platform that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights; (xiv) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or the content posted on the Platform, or to collect information about its users for any unauthorized purpose; (xv) create user accounts by automated means or under false or fraudulent pretenses; or (xvi) access or use the Platform for the purpose of creating a product or service that is competitive with any of our products or services.
User Must Be of Age
You affirm that you are over the age of 18, as the Platform is not intended for children under 18. IF YOU ARE 13 OR OLDER BUT UNDER THE AGE OF 18, OR THE LEGAL AGE OF MAJORITY WHERE YOU RESIDE IF THAT JURISDICTION HAS AN OLDER AGE OF MAJORITY, THEN YOU AGREE TO REVIEW THESE TERMS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THESE TERMS. YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THESE TERMS ON YOUR BEHALF. IF YOU ARE A PARENT OR GUARDIAN AGREEING TO THE TERMS FOR THE BENEFIT OF A CHILD OVER 13, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD’S USE OF THE PLATFORM, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.
The NyanDogg Platform
The NyanDogg Platform facilitates a peer-to-peer digital marketplace where Users can purchase NyanDogg Items. Users can obtain NyanDogg Items by purchasing at an established list price (in ETH) through the Website by sending an equivalent amount of ETH to a Smart Contract configured to initiate a transfer of the NyanDogg Item, plus additional fees and gas.
NyanDogg Platform Prices & Fees
Every transaction on the NyanDogg Platform is subject to Fees collected to support the creators, NyanCat and SnoopDogg, and the NyanDogg Platform. As Nyanify’s NFT platform partner, nft42 collects a 2% Platform Fee collected from the sales price for every Primary Sale of a NyanDogg Item on the Platform. For example, a User purchasing a NyanDogg Item for 0.420 ETH will pay 2% of the purchase price to nft42.
The amount of Fees for the sale of a NyanDogg Item also depends on whether the transaction involves the NyanDogg Item’s first sale (“Primary Sale”) or a subsequent sale in the secondary market (“Secondary Market Sale”). All Fees are collected and distributed at the time of the purchase of a NyanDogg Item by operation of the Smart Contracts.
- NyanDogg receives 98% of the total Sale Price for Primary Sales.
- nft42 collects 2% of the total Sale Price as a commission.
Secondary Market Sale
- NyanDogg receives a 10% Royalty based on the total Sale Price for Secondary Market Sales paid by the Collector who sells the NyanDogg Item.
- The Royalty is deducted from the total Sale Price at the time of the purchase by operation of the Smart Contracts. For example, a Collector selling a NyanDogg Item for 1 ETH on the Secondary Market will receive only 0.90 ETH, with NyanDogg receiving the remaining 0.10 ETH as a Royalty.
Users Agree to the Automated Collection and Disbursement of Fees by the Smart Contracts
The User agrees and understands that all fees, commissions, and royalties are transferred, processed, or initiated directly through one or more of the Smart Contracts on the Ethereum blockchain network. By transacting on the platform and by using the Smart Contracts, the User hereby acknowledges, consents to, and accepts all automated fees, commissions, and royalties for the sale of Items on the NyanDogg Platform. The User hereby consents to and agrees to be bound by the Smart Contracts’ execution and distribution of the fees, commissions, and royalties. Users hereby waive any entitlement to royalties, commissions, or fees paid to another by operation of the Smart Contracts.
Users Consent to Automated Royalties to NyanDogg
The User consents to the automated collection and disbursement to NyanDogg of royalties for Secondary Market sales of NyanDogg Items. The User hereby waives any first sale defense or argument with respect to Secondary Market activities resulting in a royalty to NyanDogg.
Off Market Transactions
NyanDogg does not generally collect any fees, commissions, or royalties for transactions occurring outside of the NyanDogg Platform and not involving the NyanDogg Smart Contracts. The User is permitted to sell or transfer their NyanDogg Items on third party exchanges, however the User hereby waives any entitlement to royalties, commissions, or fees for off market transactions. The User irrevocably releases, acquits, and forever discharges Nyanify and its subsidiaries, affiliates, officers, and successors of any liability for royalties, fines, or fees not received by the User from any off-market transaction.
All User transactions on the NyanDogg Platform, including without limitation Minting, tokenizing, purchasing, or confirming, are facilitated by Smart Contracts existing on the Ethereum network. The Ethereum network requires the payment of a transaction fee (a “Gas fee”) for every transaction that occurs on the Ethereum network, and thus every transaction occurring on the NyanDogg Platform. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of Nyanify or the NyanDogg Platform. The User acknowledges that under no circumstances will a contract, agreement, offer, sale, bid, or other transaction on the Platform be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable to a User. Users also acknowledge and agree that gas is non-refundable under all circumstances.
Users are responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority associated with your use of the Platform (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, or sale of any Works).
Platform Transactions are Executed by Smart Contracts
To initiate a transaction on the NyanDogg Platform, a User must voluntarily invoke one or more Smart Contract operations from an Ethereum Wallet. All transactions on the NyanDogg Platform, including but not limited to transfers, listings, sales, or purchases of NyanDogg Items are initiated though one or more Smart Contracts at the sole discretion and at the complete risk of the Users. The Smart Contracts are configured to facilitate the execution of a voluntary User confirmation to purchase a NyanDogg Item. The User acknowledges the risk of Smart Contracts and agrees to be bound by the outcome of any Smart Contract operation by invoking, calling, requesting, or otherwise engaging with the Smart Contract, whether or not the Smart Contract behaves as the User expects.
User Acknowledges the Risk of Smart Contracts and Blockchain Technology
NyanDogg Platform transactions, including but not limited to primary sales, secondary market sales, listings, and other operations through the Website utilize experimental smart contract and blockchain technology, including non-fungible tokens, cryptocurrencies, consensus algorithms, and decentralized or peer-to-peer networks and systems. Users acknowledge and agree that such technologies are experimental, speculative, and inherently risky. Users acknowledge and agree that the NyanDogg smart contracts may be subject to bugs, malfunctions, timing errors, hacking and theft, or changes to the protocol rules of the Ethereum blockchain (i.e., “forks”), which can adversely affect the smart contracts and may expose you to a risk of total loss, forfeiture of your digital currency or NyanDogg Items, or lost opportunities to buy or sell NyanDogg Items. NyanDogg assumes no liability or responsibility for any such smart contract or related failures, risks, or uncertainties.
Users Assume the Risk of Interacting with on Smart Contracts
Users hereby acknowledge and assume the risk of initiating, interacting with, participating in Platform transactions and take full responsibility and liability for the outcome of any transaction they initiate, whether or not the smart contracts, the Website, or other Platform features behave as expected or intended. Users hereby represent that they are knowledgeable, experienced and sophisticated in using blockchain technology, the Website, and in initiating Ethereum-based transactions.
No Attacking or Interfering with the Smart Contracts
Users are forbidden from engaging in any attack, hack, denial-of-service attack, interference, or exploit of any NyanDogg smart contract. Operations performed by a User that are technically permitted by a NyanDogg smart contract may nevertheless be a violation of our Terms of Service and the law.
NyanDogg Makes No Representations or Warranties
NyanDogg makes no representations or warranties, express or implied, written or oral, made by or on behalf of NyanDogg in connection therewith, including any representations or warranties of title, non-infringement, functionality, merchantability, usage, security, suitability or fitness for any particular purpose, workmanship or technical quality of any NyanDogg Item or work, smart contract code, or software.
NyanDogg is Not Liable for the Outcome of Any Marketplace Transaction
NyanDogg shall not be liable to you for contract, tort, or any other types of damages, including indirect, special, incidental, consequential, punitive or exemplary damages arising out of or related to participation in or the outcome of a Platform transaction, whether or not NyanDogg has been advised or knew of the possibility of such damages. NyanDogg’s liability for damages under this Agreement shall in all cases be limited to, and under no circumstances shall exceed, the amount of proceeds actually received by NyanDogg arising out of the damage after deducting all costs, fees and liabilities incurred by or on behalf of NyanDogg.
NyanDogg May Modify these Terms and the Smart Contracts
NyanDogg reserves, the right, in its sole and absolute discretion, to amend, modify, alter or supplement these Terms and the smart contracts accessible through the Website from time to time.
The Platform Smart Contracts Are Not Controlled By Nyanify
All Platform transactions are executed by one or more Smart Contracts processed on the Ethereum Virtual Machine and not under any direct control by Nyanify, nft42, or any other third party. The User acknowledges and agrees that Nyanify and nft42 are not parties to any agreement or transaction between any Users involving the purchase, sale, or transfer of NyanDogg Items, whether or not a commission or fee is received by NyanDogg as a consequence of the transaction.
All works Minted on the Platform are subject to the NyanDogg License, the terms of which are described below. All Users who receive a NyanDogg Item acknowledge and agree to accept or purchase the NyanDogg Item subject to the conditions of the License.
Ownership of a NyanDogg Item
Owning a NyanDogg Item is similar to owning a physical collectible or piece of art. You own a cryptographic token representing the creative Work as a piece of property, but you do not own the creative Work itself. Collectors may show off their ownership of collected NyanDogg Items by displaying and sharing the Underlying Work, but Collectors do not have any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights to the underlying Work, excepting the limited license granted by these Terms to Underlying Work. NyanDogg reserves all exclusive copyrights to Works underlying NyanDogg Items Minted on the Platform.
The Collector’s Limited License to a Work
Owning a NyanDogg Item is also different than owning a physical collectible or piece of art. Items for sale on the NyanDogg Platform are digital, meaning that they are inherently easier to share, display, replicate, and distribute around cyberspace. Collectors are encouraged to show off, promote, and share their collected NyanDogg Items, but Collectors may not infringe on any of the exclusive rights of the copyright holder (i.e., NyanDogg). NyanDogg affirmatively grants a limited, worldwide, non-assignable, non-sublicensable, royalty-free license to display the Work underlying the NyanDogg Items legally owned and properly obtained by the Collector.
Collectors May Display the Work
A Collector’s limited license to display the Work, or perform the Work in the case of audiovisual works, includes, but is not limited to, the right to display or perform the Work privately or publicly: (i) for the purpose of promoting or sharing the Collector’s purchase, ownership, or interest in the Work, for example, on social media platforms, blogs, digital galleries, or other Internet-based media platforms; (ii) for the purpose of sharing, promoting, discussing, or commenting on the Work; (iii) on third party marketplaces, exchanges, platforms, or applications in association with an offer to sell, or trade, the Token associated with Work; and (iv) within decentralized virtual environments, virtual worlds, virtual galleries, virtual museums, or other navigable and perceivable virtual environments, including simultaneous display of multiple copies of the Work within one or more virtual environments.
Collectors Shall Not Make Commercial Use of NyanDogg Items
Collectors have the right to sell, trade, transfer, or use their NyanDogg Items, but Collectors may not make “commercial use” of the underlying Work Including, for example, by selling copies of Work, selling access to the Work, selling derivative works embodying the Work, or otherwise commercially exploiting the Work.
Other Restrictions on the Collector’s Limited License
The Collector agrees that it may not, nor permit any third party, to do or attempt to do any of the foregoing without Nyanify’s express prior written consent in each case: (i) modify, distort, mutilate, or perform any other modification to the Work which would be prejudicial to NyanDogg’s reputation; (ii) use the Work to advertise, market, or sell any third party product or service; (iii) use the Work in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) incorporate the Work in movies, videos, video games, or any other forms of media for a commercial purpose, except to the limited extent that such use is expressly permitted by these Terms or solely for your Collector’s personal, non-commercial use; (v) sell, distribute for commercial gain, or otherwise commercialize merchandise that includes, contains, or consists of the Work; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Work; (vii) attempt to Mint, tokenize, or create an additional cryptographic token representing the same Work, whether on or off of the NyanDogg Platform; (viii) falsify, misrepresent, or conceal the authorship of the Work or the NyanDogg Item; or (ix) otherwise utilize the Work for the Collector’s or any third party’s commercial benefit.
The Limited License Belongs Only to the Current Owner of a NyanDogg Item
The User agrees and acknowledges that the lawful ownership, possession, and title to a NyanDogg Item is a necessary and sufficient condition precedent to receive the limited license rights to the underlying Work provided by these Terms. Any subsequent transfer, dispossession, burning, or other relinquishment of a NyanDogg Item will immediately terminate the former Owner’s rights and interest in the license or NyanDogg Item as provided by these Terms.
NyanDogg’s Rights and Restrictions
NyanDogg owns all legal right, title, and interest in all intellectual property rights to creative Works underlying NyanDogg Items Minted on the NyanDogg Platform, including but not limited to copyrights and trademarks. As the copyright owner, NyanDogg enjoys several exclusive rights to the Work, including the right to reproduce, the right to prepare derivative works, the right to distribute, and the right to display or perform the Work.
Disclaimers and Limitations on Our Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NYANIFY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
Nyanify Makes No Representations or Warranties
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NYANIFY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE WEBSITE OR ABOUT PRODUCTS, THE VALUE OR TITLE OF NYANDOGG ITEMS, OR THE CONTENT OF ANY THIRD-PARTY WEBSITES OR SERVICES LINKED TO OR INTEGRATED WITH THE WEBSITE. NYANIFY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE OR CONSUMPTION OF ANY PRODUCTS; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (D) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE WEBSITE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE WEBSITE OR SERVICES BY ANY THIRD PARTY; (F) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED THROUGH THE WEBSITE OR SERVICES; OR (G) LOSS OR DAMAGED CAUSED BY ANOTHER USER’S VIOLATION OF THESE TERMS.
Limitation on Liability
TO THE EXTENT PERMITTED BY LAW, NYANIFY AND ITS AFFILIATES WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF NYANIFY AND ITS AFFILIATES, FOR ANY CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE TOTAL AMOUNT YOU PAID IN FEES ON THE PLATFORM OVER THE PAST TWELVE (12) MONTHS.
Some jurisdictions do not allow the exclusion of certain warranties and limitations of liability provided in this Section. If you are in such a jurisdiction, some of the above limitations and disclaimers may not apply to you. To the extent Nyanify may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of Nyanify’s liability will be the minimum permitted by applicable law.
Assumption of the Risk
User Acknowledges the Risk of Cryptocurrency and Smart Contracts
YOU FURTHER REPRESENT AND WARRANT THAT YOU UNDERSTAND AND ARE WILLING TO ACCEPT THE RISKS ASSOCIATED WITH CRYPTOGRAPHIC SYSTEMS SUCH AS THE SMART CONTRACTS, THE ETHEREUM BLOCKCHAIN, NON-FUNGIBLE TOKENS, THE INTERPLANETARY FILE SYSTEM, AND ARWEAVE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE ETHEREUM NETWORK OR ANY ETHEREUM ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE PLATFORM, ETHEREUM NETWORK, OR ANY ETHEREUM-COMPATIBLE BROWSER OR ELECTRONIC WALLET.
Nyanify is Not Responsible for Technical Errors on the Ethereum Blockchain
NYANIFY IS NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE ETHEREUM NETWORK OR ANY ETHEREUM-COMPATIBLE BROWSER OR ELECONTRIC WALLET, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE ETHEREUM NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
Upgrades by Ethereum to the Ethereum platform, a hard fork in the Ethereum platform, or a change in how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using the ERC-20 or ERC-721 standards, including the NyanDogg Platform.
The User Acknowledges the Risks of the Platform
You acknowledge that the Platform is subject to flaws and acknowledge that you are solely responsible for evaluating any code provided by the Platform. This warning and others provided in this Agreement by Nyanify in no way evidence or represent an ongoing duty to alert you to all of the potential risks of utilizing or accessing the Platform. The Platform may experience sophisticated cyber-attacks, unexpected surges in activity or other operational or technical difficulties that may cause interruptions to or delays on the Platform. You agree to accept the risk of the Platform failure resulting from unanticipated or heightened technical difficulties, including those resulting from sophisticated attacks, and you agree not to hold Nyanify accountable for any related losses. Nyanify will not bear any liability, whatsoever, for any damage or interruptions caused by any viruses that may affect your computer or other equipment, or any phishing, spoofing or other attack.
Nyanify Does Not Guarantee the Value or Title of NyanDogg Items
The prices of blockchain assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of your NyanDogg Items, which may also be subject to significant price volatility. A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of the Platform, and therefore the potential utility or value of NyanDogg Items. The Platform, ETH and digital assets could be impacted by one or more regulatory inquiries regulatory actions, or legislative policies which could impede or limit the ability of Nyanify to continue to develop the NyanDogg Platform, or which could impede or limit your ability to access or use the Platform or Ethereum blockchain.
User Acknowledges Financial Risk of Digital Assets
Use of the Platform, including the creating, buying or selling trading digital assets, may carry financial risk. Digital assets are, by their nature, highly experimental, risky, volatile and transactions carried through the Platform are irreversible, final and there are no refunds. You acknowledge and agree that you will access and use the Platform at your own risk. The risk of loss in trading digital assets can be substantial. You should, therefore, carefully consider whether such buying or selling digital assets is suitable for you in light of your circumstances and financial resources. By using the Platform, you represent that you have been, are and will be solely responsible for making your own independent appraisal and investigations into the risks of a given transaction and the underlying digital assets. You represent that you have sufficient knowledge, market sophistication, professional advice and experience to make your own evaluation of the merits and risks of any transaction conducted via the Platform or any underlying digital asset. You accept all consequences of using the Platform, including the risk that you may lose access to your digital assets indefinitely. All transaction decisions are made solely by you. Notwithstanding anything in this Agreement, we accept no responsibility whatsoever for and will in no circumstances be liable to you in connection with use of the Platform for performing digital asset transactions. Under no circumstances will the operation of all or any portion of the Platform be deemed to create a relationship that includes the provision or tendering of investment advice.
Arbitration Agreement & Waiver of Certain Rights, Including Class Actions
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA (AMERICAN ARBITRATION ASSOCIATION) RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR NYANIFY WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
You Agree to Waive a Jury Trial
YOU AGREE TO RESOLVE ANY DISPUTES BETWEEN US THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF THROUGH COURT PROCEEDINGS. YOU WAIVE YOUR RIGHT TO ANY JURY TRIAL OF ANY CLAIM. All controversies, claims, counterclaims, or other disputes arising between you and Nyanify relating to these Terms, the Website, or any NyanDogg Items shall be submitted for binding arbitration under the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities, regulatory authorities, or other governmental agencies.
This arbitration agreement does not preclude you or Nyanify from seeking action by federal, state, or local government agencies. You and Nyanify may also bring qualifying claims in small claims court. In addition, you and Nyanify retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Nyanify will pay as much of the administrative costs and arbitrator fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
Class Action Waiver
YOU MAY NOT ACT AS A CLASS REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL, NOR PARTICIPATE AS A CLASS MEMBER OF ANY CLASS CLAIMANTS WITH RESPECT TO ANY CLAIM. CLAIMS MAY NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS. You may only bring individual claims, and the arbitrator may only decide individual claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
These Terms May Change
These Terms may be discretionarily modified or replaced at any time, unless stated otherwise herein. The most current version of this Agreement will be posted on the Website with the “Last Revised” date at the top of the Agreement changed. Any changes or modifications will be effective immediately upon posting the revisions to the Site. You shall be responsible for reviewing and becoming familiar with any such modifications. You waive any right you may have to receive specific notice of such changes or modifications. Use of the Platform by you after any modification to the Agreement constitutes your acceptance of the Agreement as modified. If you do not agree to the Agreement in effect when you access or use the Platform, we may, at any time and without liability or prior notice, modify or discontinue all or part of the Platform (including access to the Platform via any third-party links).
The Smart Contracts May Change
The User acknowledges that Nyanify may modify, change, amend, or replace one or more of the Smart Contracts from time to time. The User agrees that a modification to one or more of the Smart Contracts does not alter any right or obligation conferred by these Terms.
You agree to indemnify and hold harmless Nyanify and its affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms by you, a co-conspirator, or anyone using your account. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.
No Assignment of the Terms
Neither party may assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that Nyanify may assign this Agreement without your prior consent to any of Nyanify affiliates, or to its successors in interest of any business associated with the services provided by Nyanify. This Agreement shall be binding upon the permitted assigns or transferees of each party.
Governing Law and Jurisdiction
These Terms will be governed by and construed under the laws of the State of Texas, without giving effect to any conflict of laws rules or provisions. You agree that any action of whatever nature arising from or relating to these Terms, the Website, or NyanDogg Items will be filed only in the state or federal courts in Austin, Texas. You consent and submit to the personal jurisdiction of such courts for any such action. The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future. We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.