PLEASE READ THIS CUSTOMER AGREEMENT CAREFULLY PRIOR TO USING THE SERVICE. IF YOU DO NOT UNDERSTAND OR AGREE TO ALL TERMS IN THIS CUSTOMER AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICE OFFERINGS IN ANY MANNER. IF YOU HAVE ANY QUESTIONS ABOUT THIS CUSTOMER AGREEMENT, PLEASE CONTACT US PRIOR TO USING THE SERVICE OFFERINGS.
THIS CUSTOMER AGREEMENT INCLUDES, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
This HYPR Customer Agreement (this “Agreement“) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between HYPR Corp., a Delaware corporation (“HYPR” “we,” “us,” or “our”) and you or the entity you represent (“you“ or “your”). This Agreement takes effect when you (i) click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Service Offerings (the “Effective Date“). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Section 14 contains the definitions of certain capitalized terms used in this Agreement.
Use of the Service Offerings.
These Terms are the entire agreement between HYPR and you regarding the Service Offerings and supersede all prior or contemporaneous agreements, understandings, and communications, whether written or oral between us and you.
1.2 Generally. You may access and use the Service Offerings in accordance with this Agreement. You will adhere to all HYPR rules, terms of service and regulations applicable to your use of the Service Offerings, including the Policies as defined in Section 14.
1.3 Your Account. To access the Service, you must create a HYPR account associated with a valid e-mail address, and update it with any information we may require from time to time. Unless explicitly permitted by the Service Terms, you may only create one account. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we and our affiliates are not responsible for unauthorized access to your account. You will notify us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 7.
1.4 Support to You. We will provide web-based support. Our support email is email@example.com.
1.5 Third Party Content. Third Party Content may be made available directly to you by other companies or individuals under separate terms and conditions, including separate fees and charges. Because we may not have tested or screened the Third Party Content, your use of any Third Party Content is at your sole risk. We do not accept liability for any fees incurred or damages caused by your use of any Third Party Content. We do not guarantee the availability of any Third Party Content for any purpose.
Changes to the Service Offerings and Third Party Content.
We may change, discontinue or deprecate any of the Third Party Content and Service Offerings (including the Service Offerings as a whole) or change or remove features or functionality of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings using one of the contact methods provided by you during your account opening process.
Security and Data Privacy.
3.1 Your Security. You will implement reasonable and appropriate measures designed to secure access to (i) any device associated with the email address associated with your account, and (ii) your username, password and any other login or identifying credentials. In the event that you are no longer in possession of any device associated with your account or are not able to provide your login or identifying credentials, we may, in our sole discretion, grant access to your account to any party providing additional credentials to us. We explicitly reserve the right to determine the additional credentials required, which may include, without limitation, a sworn, notarized statement of identity.
3.2 Additional Information. You will provide any information requested by us that we, in our sole discretion, deem to be required to maintain compliance with any federal, state or local law, regulation or policy.
3.3 Your Information. We may use aggregate statistical information about your activity, including without limitation your activity on the Hypr Site and logins to various websites for marketing or any other purpose in our sole discretion. However, we will not release your personally-identifying information to any third party without your consent, except as set forth herein or in any Policy.
4.1 Security and Backup. You are responsible for properly configuring and using the Service Offerings. You are fully responsible for maintaining the confidentiality of your account credentials (i.e., any device linked to your account, your username, password, and other account login information). HYPR log-in credentials generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your credentials to your agents and subcontractors performing work on your behalf.
4.2 End User Violations. You will be deemed to have taken any action that you permit, assist, suffer or facilitate any person or entity to take related to this Agreement, or use of the Service Offerings. You are responsible for End Users’ use of the Service Offerings. This means that if you allow anyone to use any device linked to your account or tell another person your email or password and that person uses your account, you are responsible for their actions on the Service even if you did not know or approve of those actions. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User’s access to the Service Offerings.
4.3 End User Support. You are responsible for providing customer service (if any) to End Users. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
4.4 Prohibited Activities. You will not use the Service Offerings:
(a) for any unlawful activity;
(b) to pay or discharge any debt to any person on behalf of yourself or any other person;
(c) to provide any money services, including, without limitation, check issuing, cashing or selling, issuing or participating in a stored value program, providing prepaid access, trading, dealing or exchanging currency, or transmitting money.
Fees and Payment
5.1. Service Fees. Currently, we do not charge for use of the Service Offerings. We reserve the right to charge for any portion of the Service Offerings and to change our fees from time to time in our sole discretion. If we decide to charge fees, we will notify you in advance and we will offer you the opportunity to discontinue use of the Service Offerings within a reasonable time of the notice without incurring any of the fees for the Service Offerings.
5.2 Taxes. If we decide to charge fees for use of the Service Offerings, all fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
6.1 Generally. We may suspend your or any End User’s right to access or use of any portion or all of the Service Offerings for any reason or no reason.
6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Service Offerings, we will not be liable for any special, incidental or consequential damages you sustain, including without limitation any special, incidental or consequential damages due to any loss of login or user information for any website or your inability to access any website or account.
Our right to suspend your or any End User’s right to access or use the Service Offerings is in addition to our right to terminate this Agreement pursuant to Section 7.
7.1. Term. The term of this agreement will commence on the Effective Date and will remain in effect so long as we permit you to use the Service Offerings.
(a) You may terminate this Agreement for any reason by providing us notice and closing your account for the Service through the HypKey Site.
(b) We may terminate this Agreement for any reason or no reason. If we terminate this Agreement, and/or your right to access or use any portion or all of the Service Offerings, we will not be liable for any special, incidental or consequential damages you sustain, including without limitation any special, incidental or consequential damages due to any loss of login or user information for any website or your inability to access any website or account.
7.3. Effect of Termination. Upon any termination of this Agreement: (a) all your rights under this Agreement immediately terminate; (b) you are not entitled to a refund of any amount paid prior to the date of termination; (c) you will immediately return or, if instructed by us, destroy all HYPR Content in your possession; and (d) Sections 4.1, 5, 7.3, 8 (except the license granted to you in Section 8.1), 9, 10, 11, 13 and 14 will continue to apply in accordance with their terms.
8.1 Service Offerings License. As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Service Offerings. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Service Offerings solely in accordance with this Agreement. Except as provided in this Section 8.1, you obtain no rights under this Agreement from us or our licensors to the Service Offerings, including any related intellectual property rights.
8.2 License Restrictions. Neither you nor any End User may use the Service Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Service Offerings (except to the extent software included in the Service Offerings are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings, (c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Service Offerings. All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service Offerings you have used.
8.3 Suggestions. If you provide any Suggestions to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential or proprietary. We and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
8.4 Intellectual Property. We retain all right, title and interest in all of our intellectual property, including inventions, discoveries, processes, marks, methods, compositions, formulae, techniques, information and data, whether or not patentable, copyrightable or protectable in trademark, and any trademarks, copyrights or patents based thereon. You may not use any of our intellectual property for any reason, except with our express, prior, written consent.
9.1. General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any End Users’ use of the Service Offerings (including any activities under your HYPR account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any End User; or (c) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
9.2. Process. We will promptly notify you of any claim subject to Section 9.1, but our failure to promptly notify you will only affect your obligations under Section 9.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
10.1 General. THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
10.2 No Insurance. THE SERVICE OFFERINGS ARE NOT INSURED BY ANY GOVERNMENTAL OR PRIVATE ORGANIZATION.
Limitations of Liability.
NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, (III) ANY MALFUNCTION, OR (IV) UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, MAINTENANCE, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY DATA.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HYPR BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH THIS AGREEMENT, ANY USE OF THE HYPR SERVICES OR CONTENT, OR ANY FAILURE OR DELAY RELATING TO THE SERVICES. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $50. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN SUCH A JURISDICTION.
Modifications to the Agreement.
We may modify this Agreement (including any Policies) at any time by posting a revised version on the HYPR Site or by otherwise notifying you in accordance with Section 13. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Hypr Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.
13.1 Confidentiality and Publicity. You may use HYPR Confidential Information only in connection with your use of the Service Offerings as permitted under this Agreement. You will not disclose HYPR Confidential Information during the Term or at any time during the 5 year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of HYPR Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Service Offerings. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
13.2 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war, changes in digital currency technology, changes in the digital currency industry or any other force outside of our control, including but not limited to fraud, identity theft or unauthorized access by a third party.
13.3 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
13.7 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
13.7 U.S. Government Rights. The Service Offerings are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service Offerings. If you are using the Service Offerings on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Service Offerings. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
(a) To You. We may provide any notice to you under this Agreement by any or all of the following: (i) posting a notice on the Hypr Site; or (ii) sending a message to the email address then associated with your account. It is your responsibility to keep your email address and any other contact information current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive or read the email.
(b) To Us. To give us notice under this Agreement, you must contact HYPR by email to firstname.lastname@example.org. We may update this email address for notices to us by posting a notice on the Hypr Site. Notices to us will be effective one business day after they are sent.
(c) Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
13.8 Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.8 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
13.9 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
13.10 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
13.11 Disputes Resolution by Binding Arbitration; Jury Trial Waiver; Class Action Waiver. For any and all controversies, disputes, demands, claims, or causes of action between you and us (including the interpretation and scope of this Section and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to the Service Offerings or this Agreement (as well as any related or prior agreement that you may have had with us), you and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. The arbitration will take place in the federal judicial district of your residence. As used in this Section, “we” and “us” mean HYPR. In addition, “we” and “us” include any third party providing any product, service, or benefit in connection with the Service Offerings or this Agreement (as well as any related or prior agreement that you may have had with us) if such third party is named as a co-party with us in any controversy, dispute, demand, claim, or cause of action subject to this Section.
Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). Where no claims or counterclaims exceed $10,000, the dispute will be resolved by the submission of documents without a hearing, unless a hearing is requested by a party or deemed necessary by the arbitrator, in which case, a party may elect to participate telephonically.
You should review this provision carefully. To the extent permitted by applicable law, you are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court in the state or municipality of your residence within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Additionally, notwithstanding this agreement to arbitrate, claims of defamation, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York County, New York. Additionally, notwithstanding this agreement to arbitrate, you or we may seek emergency equitable relief before the state or federal courts located in New York County, New York in order to maintain the status quo pending arbitration and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York County, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators’ decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and we must abide by the following rules: (A) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) we also reserve the right, in our sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (g) subject to the limitation of liability provisions of these Terms, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (h) you and we will pay our respective attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law.
This Section will survive termination of your account and this Agreement as well as any voluntary payment of any debt in full by you or any bankruptcy by you or us. With the exception of subparts (a) and (b) above of this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (a) or (b) above of this Section is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York County, New York.
For more information on the AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call the AAA at 888-778-7879 or visit the AAA website at http://www.adr.org.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR IT WILL BE FOREVER BARRED.
13.12 Entire Agreement; English Language. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 3 of this Agreement contain the Parties and their affiliates’ entire obligation regarding the security, privacy and confidentiality of your personal information. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
13.13 Attorneys’ Fees. In the event it becomes necessary for us file any action or proceeding or attempt to resolve any controversy, dispute, demand, claim or cause of action to enforce this Agreement or any provisions contained herein, and we prevail in such action or proceeding, then we will be entitled to recover, in addition to all other remedies or damages, our reasonable attorney’s fees and costs incurred.
13.14 Digital Millennium Copyright Act. If you are a copyright owner or agent thereof and believe any Content infringes upon your copyrights, you may submit a written notice pursuant to the Digital Millennium Copyright Act (“DMCA”) to our copyright agent at email@example.com.
In order to take action, your notice must:
Include your physical or electronic signature.
Identify the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notice, a representative list of such works at that site. As an example, you might state that the copyrighted work that was infringed is located on Page 123 of the book “Parenting 1, 2, 3” written by John Doe, published by Rainbow Publishing in 2007, ISBN 1231231231.
Identify the Content that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and provide information reasonably sufficient to permit us to locate the Content. For example, you might state that the Content located in paragraph 4 of message #1234 is substantially the same as what is written on Page 123 of Parenting 1, 2, 3.
Provide a way for us to contact you, such as your address, telephone number, or email address.
Include in your notice the following statement: “I believe in good faith that the use of copyrighted material described in this notice was not authorized by the owner of the copyright, an agent of the owner of the copyright, or applicable law.”
Include in your notice the following statement: “I swear, under penalty of perjury, that the information I have set forth in this notice is accurate, and I am either (1) the owner of the copyright; (2) someone authorized to act on behalf of the owner of the copyright; or (3) someone authorized to act on behalf of someone who holds an exclusive right to use the copyright in the manner in which it has been infringed.”
We cannot take action unless you give us all required information, and you acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
Please note that you can be held liable for damages (including costs and attorneys’ fees) if you wrongfully claim that Content infringes your copyright. If you are not sure whether Content infringes your copyright, you should first contact an attorney and seek legal advice.
If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, to post and use such material, you may submit a written counter-notice to our copyright agent at firstname.lastname@example.org. In order to take action, your counter-notice must: (1) include your physical or electronic signature; (2) identify your Content that has been removed or to which access has been disabled and the location at which your Content appeared before it was removed or access to it was disabled; (3) include a statement, under penalty of perjury, that you have a good faith belief that your Content was removed or disabled as a result of mistake or a misidentification of your Content; and (4) include your name, address, and telephone number and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided the DMCA notice to us or an agent of such person. If a proper counter-notice is received by our copyright agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed Content or cease disabling it in ten business days. We may, in our discretion, replace or restore access to the removed Content and cease disabling access to it in ten to 14 business days or more after receipt of the counter-notice, unless our designated agent first receives notice from the person who submitted the DMCA notice that such person has filed an action seeking a court order to restrain the owner of the removed Content from engaging in infringing activity relating to such Content.
“Content” means software (including machine images), data, text, audio, video, images, audiovisual works or other content.
“End User” means any individual or entity that directly or indirectly through another user accesses or uses the Service Offerings under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own HYPR account, rather than your account.
“HYPR Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. HYPR Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. HYPR Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the HYPR Confidential Information.
“HYPR Content” means Content we or any of its affiliates make available in connection with the Services or on the Hypr Site to allow access to and use of the Services. HYPR Content does not include the Services.
“Hypr Site” means https://www.hypr.com and any successor or related site designated by us.
“Policies” means the Site Terms, the Service Terms, all restrictions described in the HYPR Content and on the Hypr Site, and any other policy or terms referenced in or incorporated into this Agreement. Policies does not include whitepapers or other marketing materials referenced on the Hypr Site. In the event of a conflict between any Policy and this Agreement, the terms of this Agreement prevail.
“Service” means our provision to you of software that enables user authentication on third party websites using a decaying token that stores and transmits your usernames and passwords for those websites.
“Service Offerings” means the Service, the HYPR Content, the Hypr Site, and any other product or service provided by us under this Agreement. Service Offerings do not include Third Party Content.
“Site Terms” means the terms of service located at the Hypr Site, as they may be updated by us from time to time.
“Suggestions” means all suggested modifications, improvements, additions or subtractions to the Service Offerings that you provide to us.
“Term” means the term of this Agreement described in Section 7.1.
“Third Party Content” means Content made available to you or us by any third party in conjunction with the Services, including without limitation transaction confirmations, network statistics, hosted wallet information or mining information.