Terms of Service
Effective date: 13th of April, 2021
Address: 134 West Highland Avenue, Philadelphia, PA 19118
1. Acceptance of Terms
1.1. Overview. The following terms of service ("TOS") govern your use of and purchases through (a) the hyper.co website (including all web pages, sub-domains and sub-parts therein contained, the "Site"), and (b) any and all services available on or through the Site or otherwise provided by Frenzy Technologies Inc. ( “Hyper”) (collectively, the "Services"). Except as set forth herein, the Services are owned and operated by Hyper. The Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Site by Hyper. BY USING OR ACCESSING ANY PART OF THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES THAT MAY BE PUBLISHED FROM TIME TO TIME ON THE SITE BY HYPER. IF YOU DO NOT AGREE TO ANY OF SUCH TERMS, CONDITIONS, RULES, POLICIES OR PROCEDURES, DO NOT USE OR ACCESS THE SERVICES.
1.2. Modification. Hyper reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this TOS at any time. It is your responsibility to check this TOS periodically for changes. Your continued use of the Services following the posting of any changes to this TOS constitutes acceptance of those changes. If any change to this TOS is not acceptable to you, your sole remedy is to cease accessing and otherwise using the Services.
2. Description of Hyper
Hyper provides software, services, tools and APIs to enable you to manage and use various Internet properties, including Discord servers, including modules that allow you to sell licenses and manage access to or use your properties to your end users. You may use the Services to bill and collect payments directly from your end users. Payments are all transacted through Hyper’ integration with your account on the Stripe payment processing platform (the "Gateway"). All payment processing services for Hyper are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to the TOS or continuing to operate as an account holder on the Services, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Hyper enabling payment processing services through Stripe, you agree to provide Hyper accurate and complete information about you and your business, and you authorize Hyper to share it and transaction information related to your use of the payment processing services provided by Stripe.
3. Your Use of the Services
Hyper hereby grants you a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable right to access and use the Services solely (i) in compliance with this TOS, and (ii) to the extent permitted under all applicable laws and regulations (foreign and domestic). Notwithstanding the foregoing, you shall not, and shall not permit anyone else to, directly or indirectly: (i) modify, reproduce, distribute, scrape, frame or create derivatives of any part of the Services or Site Content (as defined below); (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Services (except as permitted by applicable law); (iii) rent, lease, resell, distribute or use the Services for timesharing, service bureau, or to aggregate purchases through the Services; (iv) remove or alter any proprietary notices or labels on or in the Services or Site Content; or (v) engage in any activity not otherwise permitted by this TOS or Hyper’ policies, including those activities prohibited by Section 8.1.
4. Billing, Payment, Cancellation and Refunds
4.1. Payments and Subscriptions. There are various payment and subscription options available for using the Services. These options can be found in the individual Services descriptions and may change from time to time. Once your initial payment is processed, your subscription to the Services has begun, and you can immediately access the relevant Services. IN ADDITION TO ANY SUBSCRIPTION FEES OR OTHER CHARGES, YOU AGREE THAT ANY APPLICATION OR TRANSACTION FEES THAT MAY BE IN PLACE WITH OTHER SERVICE PROVIDERS, INCLUDING THE GATEWAY, MAY BE CARRIED OVER TO (AND COLLECTED AND RETAINED BY) HYPER, AND YOU HEREBY AGREE THAT HYPER MAY KEEP ALL SUCH FEES.
4.2. Automatic Renewals. Subscriptions automatically renew. This means that once you sign up for the Services, your subscription will automatically renew based on the subscription program you chose (e.g. semiannually, monthly, etc.). Your credit card on file will be charged the rate stated at the time of purchase (plus applicable taxes) at the beginning of each billing term of your subscription. You are responsible for keeping a valid credit card number on file and for ensuring that your billing information is correct to prevent your subscription from lapsing. Our pricing may change at any time. The price and terms in place when you made your initial purchase or when your subscription last renewed will stay in effect for the duration of that subscription period, but new prices and terms may apply to renewals or new subscriptions. Hyper will give you reasonable notice of any change in price or terms before they go into effect. If you do not want to renew your subscription under these new prices or terms, you may cancel your subscription as described below.
4.3. Services Cancellations and Refunds. You may cancel the Services by logging into your dashboard page on the Site or by contacting us by email. All refunds will be credited to your credit card on file. The following terms will apply:
Monthly Subscriptions: Subscriptions billed on a monthly basis may be canceled at any time prior to two business days before your renewal date but are not eligible for a refund. If you cancel your monthly subscription, you will retain access to the Services for the remainder of that month. If you do not cancel your subscription prior to two days before your renewal date, Hyper will renew your subscription for one more month.
Subscriptions Longer than a Month: Subscriptions longer than one month may be canceled during the first 30 days for a refund of any prepaid fees beyond the fees for the first 30 day period. If you cancel this type of subscription after the first 30 days, you will not receive a refund, but you will retain access to the relevant Services for the remainder of your subscription period, after which your subscription will be canceled. If you do not cancel your subscription within your subscription period, Hyper will renew your subscription for an additional term equivalent in length to your current subscription. Refunds are not based on account usage.
One Time Charges: One-time charges for Services may be canceled during the first 30 days for a full refund.
4.4. Additional Services. You are also responsible for, and Hyper is authorized to charge your credit card for, any additional Services that you authorize, whether verbally or in writing (including via email), such as the purchase of additional modules, additional services or customization services. Hyper reserves the right, in its sole and absolute discretion, to accept or decline requests for additional modules, additional services or customization services.
4.5. End User Payments. Hyper’ sole role with respect to payments is to provide access to the Gateway to facilitate processing of payments for licenses administered through the Services. All such payments are collected directly from the end user by you via your account with the Gateway and are not collected by Hyper. You, and not Hyper, are responsible for calculating and collecting all applicable taxes from end users based on transactions processed using the Services. All communications and disputes regarding payments are solely between you and your end user, and Hyper is not responsible or liable in any way for, and you will hold Hyper harmless from any rejected payments, incorrect charges, chargebacks or any other transaction failure in connection with your use of the Services, even if performed by Hyper on your behalf.
4.6. End User Refunds. It is your responsibility to communicate your refund policy to end users and to issue refunds to end users via the Site or otherwise in accordance with that policy. All communications or disputes regarding chargebacks or refunds are solely between you and the end user, and Hyper will not be responsible or liable in any way for chargebacks, refunds, errors in issuing refunds, or lack of refunds in connection with your use of the Services, even if performed by Hyper on your behalf. Communications to Hyper concerning payments, refunds or chargebacks will not be answered and will not be forwarded to you. Hyper shall not be bound by your refund policy, whether or not such policy is communicated to end users on or through the Site.
5. Your Registration Obligations
6. Account and Security
You are responsible for maintaining the confidentiality of your account, and are fully responsible for all activities that occur under your account, whether or not authorized by you. Furthermore, you agree that as part of the Services, Hyper will have access to your account(s) via the Gateway’s API, and will have the ability to issue refunds, create subscriptions, and charge your end users through the Gateway’s API, and you hereby authorize Hyper to do so on your behalf. You agree to (a) never share your account with anyone, (b) immediately notify Hyper of any actual or suspected unauthorized use of your account or any other breach of security, and (c) ensure that you exit from your account at the end of each session. Hyper cannot and will not be liable for any loss, damage or other liability arising from your failure to comply with this Section or from any unauthorized access to or use of your account.
7.1. Site Content. You agree that all material, including without limitation information, data, software, text, design elements, graphics, images and other content (collectively, "Content"), contained in or delivered via the Services or otherwise made available by Hyper in connection with the Services (collectively, "Site Content") is owned by Hyper and its licensors and is protected by copyrights, trademarks, service marks, trade secrets or other intellectual property and other proprietary rights and laws. Except as expressly authorized by Hyper in writing or solely as necessary for your use of the intended functionality of the Services, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any Site Content, or post any Site Content on any other web site or in a networked computer environment for any purpose. However, you may print or download a reasonable number of copies of the Site Content for your own personal informational or record-keeping purposes, provided that you retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any Site Content for any other purpose is strictly prohibited without the express prior written permission of Hyper. You shall use the Site Content only for purposes that are permitted by this TOS and any applicable laws and regulations (foreign and domestic). Any rights not expressly granted herein are reserved.
7.2. Hyper’ License to use Your Content. You hereby grant to Hyper a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) right and license to use, reproduce, adapt, modify, distribute, translate, publish, create derivative works based on, perform, display and otherwise exploit any Content, feedback, suggestions or improvements that you contribute, provide or otherwise make available to Hyper or others and/or by or through the Site (“Your Content”) in whole or in part, in any media now known or hereafter developed, for any purpose whatsoever, and to allow others to do so, without compensation to you or any third party. You represent and warrant that you have all the rights, power, authority and authorization necessary to contribute, provide and make available to Hyper and others Your Content and to grant the foregoing license, and that all Your Content (i) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party, (ii) complies with all applicable laws and regulations (foreign and domestic), and (iii) that you have all authorizations, consents, approvals and have made all disclosures required to provide Your Content to Hyper and to allow Hyper to use Your Content as provided in these TOS. Hyper reserves the right to remove any of Your Content from the Site at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to Your Content) or no reason.
8.1. Certain Restrictions. You understand that you are liable for your use of the Services, including for all Content, in whatever form, that you provide or otherwise make available to or through the Services, including to end users. You agree not to use the Services to:
- upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, fraudulent, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; harm minors in any way;
- impersonate any person or entity, including, but not limited to, Hyper, or falsely state or otherwise misrepresent your affiliation with a person or entity; forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
- upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any person or entity; upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, except in those areas that are designated for such purpose and within the scope of such designation;
- upload, post, email, transmit or otherwise make available any Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to otherwise interact with the Services in a manner not permitted by this TOS or expressly authorized by Hyper;
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; intentionally or unintentionally violate any applicable law or regulation (foreign or domestic); stalk or otherwise harass any person orentity
8.2. Certain Remedial Rights. Hyper does not pre-screen any Content provided or made available by you or any third party in connection with the Services, but Hyper and its designees shall have the right (but not the obligation) in their sole discretion to (i) monitor, alter, edit, or remove any Content, in whole or in part, and/or (ii) suspend, rescind and terminate your right to use the Services at any time (with or without notice) for any reason or no reason. You acknowledge and agree that Hyper may preserve Your Content and may also disclose Your Content for any reason (but subject to the terms of the Privacy Notice, as defined herein), including, without limitation, if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this TOS; (c) respond to claims that any of Your Content violates the rights of third parties; and/or (d) protect the rights, property, or personal safety of Hyper, its users and/or the public. You understand that the technical processing and transmission of the Services, including Your Content, may involve (i) transmissions over or storage using various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
9. Special Terms Regarding International Use
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content and your use of the Services. By way of example and not of limitation, you agree to comply with all applicable laws and regulations (foreign and domestic) regarding the transmission of technical data exported from the United States or the country in which you reside. In addition, the Services may be subject to United States export controls. No part of the Services may be exported or re-exported into, or to a national or resident of, any country to which the U.S. has embargoed goods and/or services of the same type as the Services. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not located in, and you are not a national or resident of, any such country. Further, no part of the Services (including any Software) may be exported or re-exported to any person or entity appearing on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List or the Bureau of Industry and Security's Denied Persons List. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not a person or entity or under the control of or affiliated with a person or entity that appears on any such list.
You agree to defend, indemnify and hold Hyper and its affiliates, licensors, suppliers, subcontractors, partners and agents, and each of its and their respective officers, directors, agents and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys' and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise), investigation or settlement made by any third party (each a "Claim") due to or arising out of Your Content, your use of, contribution to or connection with the Services, your violation of this TOS or any of your policies, including your refund policy, and/or your violation of any rights of another. Hyper shall provide notice to you of any such Claim that it receives, provided that the failure or delay by Hyper in providing such notice shall not limit your obligations hereunder. Hyper reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section, and in such case, you agree to cooperate with all reasonable requests in assisting Hyper’ defense of such matter.
11. Service Modifications and Suspensions
Hyper reserves the right at any time to, and from time to time may, modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) for any reason or no reason with or without notice. You agree that Hyper shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
Hyper, in its sole discretion, may terminate your account and/or your right to use the Services, and remove and discard any and all of Your Content within the Services, at any time for any reason or no reason, including, without limitation, if Hyper believes that you have violated or acted inconsistently with the provisions of this TOS. You agree that any termination of your right to use the Services may be effected without prior notice, and acknowledge and agree that Hyper may immediately deactivate or delete your account and all related Content and files related to your account and/or bar any further access to such files or the Services. Further, you agree that Hyper shall not be liable to you or any third-party for any termination of your right to use or otherwise access the Services. All provisions of this TOS that by their nature should survive termination of your right to use the Services shall survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections and licenses).
The Services may provide, or third parties may provide, links to other Internet websites or resources, including, but not limited to, Discord, Stripe, Twitter and eBay. Because Hyper has no control over such websites and resources, you acknowledge and agree that Hyper is not responsible for the availability of such websites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that Hyper shall not be responsible or liable for any damage or loss caused or alleged to be caused by or in connection with any use of or reliance on any such Content, advertising, products, services or other materials available on or through any such website or resource.
14. Disclaimer Of Warranties
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. HYPER HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. HYPER MAKES NO WARRANTY THAT: (I) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (II) ANY CONTENT OBTAINED THROUGH THE SERVICES, OR THE SERVICES THEMSELVES (OR ANY PART THEREOF), WILL MEET YOUR EXPECTATIONS, OR (III) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. HYPER IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR YOUR CONTENT, PRODUCTS, SERVICES, ACTIONS OR OMISSIONS IN CONNECTION WITH YOUR USE OF THE SERVICES; AND HYPER WILL HAVE NO LIABILITY WITH RESPECT TO ANY WARRANTY DISCLAIMED IN (I) THROUGH (V) ABOVE. YOU ACKNOWLEDGE THAT HYPER HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE TRUTH OR ACCURACY OF ANY OF YOUR CONTENT OR LISTINGS, OR THE ABILITY OF ANY END USER TO PERFORM, OR ACTUALLY COMPLETE A TRANSACTION. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Notwithstanding the foregoing, you may report the misconduct of end users and/or third parties in connection with the Site or any Services to Hyper. Hyper, in its sole discretion, may, but shall not be obligated to, investigate the claim and take any action that it deems appropriate.
15. Limitation Of Liability
HYPER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THIS TOS, FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HYPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, (III) AMOUNTS IN EXCESS OF US$100.00 IN THE AGGREGATE FOR ALL CLAIMS WITH RESPECT TO THE SERVICES, OR (IV) ANY MATTERS BEYOND HYPER’ REASONABLE CONTROL. HYPER SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF YOUR CONTENT OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES. IN ADDITION, HYPER IS NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE GATEWAY), AND HYPER HAS NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD PARTY SERVICE PROVIDER. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IN CONSIDERATION OF BEING PERMITTED TO ACCESS AND USE THE SERVICES, YOU HEREBY AGREE TO RELEASE HYPER AND ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, PARTNERS AND AGENTS, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES FROM ALL DAMAGES (WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE), LOSSES, LIABILITIES, COSTS AND EXPENSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH DISPUTES BETWEEN YOU AND THIRD PARTIES (INCLUDING OTHER HYPER CUSTOMERS OR END USERS) IN CONNECTION WITH THE SERVICES, YOUR ACCESS AND USE OF THE SERVICES, OR ANY EVENTS LISTED THEREON.
Notices to you may be made via either e-mail or United States mail to the address below. You hereby consent to receiving notice via e-mail. The Services may also provide notices of changes to this TOS or other matters by displaying notices or links to notices to you generally on the Services. Any notice from you to us shall be sent in writing to our mailing address at Frenzy Technologies Inc., 134 West Highland Avenue, Philadelphia, PA 19118.
19. Trademark Information
The trademarks, service marks, and logos of Hyper (the "Hyper Trademarks") used and displayed in connection with the Services are registered and/or unregistered trademarks or service marks of Hyper. Other company, product, and service names used in connection with the Services may be trademarks or service marks owned by third parties (the "Third Party Trademarks", and, collectively with Hyper Trademarks, the "Trademarks"). The offering of the Services shall not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in connection with the Services without the prior written consent of Hyper specific for each such use. The Trademarks may not be used to disparage Hyper, any third party or Hyper’ or third party’s products or services, or in any manner (in Hyper’ sole judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless Hyper approves the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any Hyper Trademark shall inure to Hyper’s benefit.
20. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND HYPER HAVE AGAINST EACH OTHER ARE RESOLVED.
You and Hyper agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Hyper (including any claim or dispute between you and a third-party agent of Hyper) that relates in any way to or arises out of this or previous versions of these TOS, your use of or access to the Services, the actions of Hyper or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Section.
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the Commonwealth of Pennsylvania, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and Hyper, except as otherwise stated in this Agreement.
Agreement to Arbitrate
You and Hyper each agree that any and all disputes or claims that have arisen, or may arise, between you and Hyper (including any disputes or claims between you and a third-party agent of Hyper) that relate in any way to or arise out of this Agreement, your use of or access to the Services, the actions of Hyper or its agents, or any products or services sold, offered, or purchased through the Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND HYPER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND HYPER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Hyper's right to appeal the court's decision. All other claims will be arbitrated.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of the portion of this Agreement entitled "Prohibition of Class and Representative Actions and Non-Individualized Relief", shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word "arbitrator" in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA's rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement.
A party who intends to seek arbitration must first send to the other, by certified mail, a Notice of Dispute ("Notice"). The Notice to Hyper should be sent to Hyper at the address set forth in the Notice section above. Hyper will send any Notice to you to the physical address we have on file associated with your Hyper account; it is your responsibility to keep your physical address up to date.
If you and Hyper are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Hyper may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Hyper at the address set forth in the Notice section above. In the event Hyper initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Hyper account. Any settlement offer made by you or Hyper shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Hyper may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Hyper subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Hyper may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Hyper user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement.
With the exception of any of the provisions in the Section entitled "Prohibition of Class and Representative Actions and Non-Individualized Relief", if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement shall still apply.
Future Amendments to this Section
Notwithstanding any provision in the Agreement to the contrary, you and we agree that if we make any amendment to this Legal Disputes Section (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Hyper prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by this Agreement that have arisen or may arise between you and Hyper. We will notify you of amendments to this Agreement by posting the amended terms on hyper.co at least 30 days before the effective date of the amendments and by providing notice through email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Legal Disputes section above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Hyper must be resolved exclusively by a state or federal court located in the Commonwealth of Pennsylvania. You and Hyper agree to submit to the personal jurisdiction of the courts located within the Commonwealth of Pennsylvania for the purpose of litigating all such claims or disputes.
You agree that regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to use of the Services or these TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
21.1. Entire Agreement. This TOS and the Privacy Notice constitutes the entire agreement between you and Hyper and governs your use of the Services, superseding any prior or contemporaneous agreements, proposals, discussions or communications between you and Hyper on the subject matter hereof. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third party Content, third party software or the Services in a manner other than as governed by this TOS.
21.2. Waiver. The failure or delay of Hyper to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. No oral waiver, amendment or modification shall be effective under any circumstance whatsoever.
21.3. Severability. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this TOS shall remain in full force and effect.
21.4. Captions. The section captions in this TOS are for convenience only and have no legal or contractual effect.