Terms
Hypermode Terms of Service
Effective Date: June 25, 2024
These Hypermode Terms of Service (this “Agreement”) are a binding legal agreement between you (“Customer” or “You”) and Hypermode, Inc. (“Hypermode”) regarding your use of Hypermode’s proprietary managed service (the “Hypermode Service”). Please read this Agreement carefully.
BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS OR OTHERWISE ACCESSING OR USING THE HYPERMODE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE HYPERMODE SERVICE, YOU AGREE TO BE BOUND BY, THIS AGREEMENT, INCLUDING HYPERMODE’S PRIVACY POLICY, DATA PROCESSING ADDENDUM (“DPA”), SUPPORT POLICIES (“SLA”) (COLLECTIVELY, THE “TERMS”). If You are not eligible, or do not agree to these Terms, then You do not have our permission to use the Hypermode Service.
IMPORTANT: PLEASE CAREFULLY REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH HYPERMODE ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION AND WAIVING YOUR RIGHT TO A CLASS ACTION. BY ENTERING THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE YOU HAVE READ AND UNDERSTAND ALL THE TERMS OF THE ARBITRATION AGREEMENT AND HAVE TAKEN THE TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
If You are using a free version of the Hypermode Service, Hypermode is not obligated to provide any indemnities, warranties in Section 9 or support in Section 2 and the SLA does not apply. Hypermode may cancel and terminate these Terms and your rights to use the Hypermode Technology at anytime if you are using a free version.
1. Definitions.
Let’s Define Some Important Stuff
“Account” means the account that You, or your entity, will create on our website to access, use or purchase our Hypermode Service. Please secure your account using a strong password that includes special characters, lowercase and capitalized letters, numbers and is not shorter than 10 characters. Alternatively, You may create an account using a third party login, such as your Gmail or GitHub account. You are responsible for the all activities that occur in your account. Your use of any third-party service may be governed by the third party’s terms and conditions, and any issue arising from your use of the third-party service is solely between You and the third party. Hypermode is not an affiliate or partner of any such third party.
“Affiliate” means with respect to a party, a business entity that directly or indirectly controls, is controlled by or is under common control with such party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
“API Materials” means any technical data, specifications, documentation and other materials that Hypermode provides to Client in connection with the API
“Customer Application” means each of Customer’s software application that is generated via the Hypermode Service.
“Customer Data” means any data provided by Customer to Hypermode via the Hypermode API or the Hypermode Service, including inputs and queries. Customer Data does not include any component of the Hypermode Service, Hypermode Technology, or any data provided by or on behalf of Hypermode.
“Hypermode API” means a Hypermode proprietary application programming interface (including any modifications, enhancements and derivatives thereof) made available by Hypermode to Customer.
“Hypermode Technology” means, collectively, the API Materials, Beta Offerings, Documentation, Hypermode APIs, Hypermode Service, and Software.
“End User” means a user of the Customer Application who are bound to enforceable terms of use with Customer, as further described in these Terms.
“Service Level Requirements” means those requirements set forth in the Hypermode Service Level Agreement[4] .
2. Services
Here’s What’s in the Hypermode Tool Box and How to Get Access
Your Account. In order to create an Account yourself or on behalf of your organization on our website, You must be a natural person of at least 16 years old, or a legal entity that is duly registered. If You do create an Account on behalf of your organization, You represent that You have the authority to act on behalf of your organization and bind them to these Terms.
When You create an Account, You will provide us with some information such as your email address, password, username, full name and any other optional information we may ask as part of your profile in your Account. You cannot share your login credentials with multiple users. A valid Account may only be created and maintained if You provide accurate information and regularly update your Account to ensure that it is all up to date.
Remember, You are responsible for all activities that occur under your Account.
Hypermode API. Subject to these Terms, during the Subscription Term, Hypermode hereby grants Customer a limited, non-exclusive, non-sublicensable and non-transferable right to access the Hypermode API in accordance with the API Materials and use the API Materials, in each case, for the sole purpose of (i) developing, testing, and operating Customer Applications; and (ii) publishing, distributing, and making the Customer Applications available to End Users.
Hypermode Service. Subject to these Terms, during the Subscription Term, Hypermode will use its commercially reasonable efforts to provide to Customer the Hypermode Service in accordance with the Service Level Requirements. To the maximum extent permitted by law, Customer’s sole and exclusive remedy for Hypermode’s failure to meet the Service Level Requirements will be to get the service credits in the Service Level Agreement. This remedy does not apply to You if You are using the free Hypermode Service.
Software. If the API Materials include any downloadable software from Hypermode or if Hypermode provides Customer with any other downloadable software (“Software”), then, subject to these Terms, during the Subscription Term, Hypermode either: (i) will grant to Customer a license under an identified open source license or (ii) will grant to Customer a non-exclusive, non-transferable, non-sublicensable right and license under Hypermode’s rights in the Software to install and operate the Software in accordance with all applicable Documentation (as defined below). Any third party open source software that is provided will be licensed pursuant to the applicable open source license terms made available with the open source software.
Customer Support. Subject to Customer’s compliance with these Terms, Hypermode will provide Customer with support services in accordance with Hypermode’s standard support policies [hypermode.com/legal/support-agreement].
Documentation. To the extent that the Hypermode Technology comes with any Hypermode-provided user manuals, help files, specification sheets, or other documentation, in whatever form (“Documentation”), during the Subscription Term, Hypermode hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under Hypermode’s rights in the Documentation to use such Documentation solely to enable Customer to exercise its rights to the Hypermode Technology under these Terms.
Beta Products. From time to time, Hypermode may make certain features or functionality available on a beta, pilot, limited release, preview, or evaluation basis (the “Beta Offering(s)”). Customer may use the Beta Offerings only for the purpose of evaluating the functions and performance of the Hypermode Service, solely for the designated time period for the evaluation or trial, and subject to any additional usage restrictions specified by Hypermode. Customer acknowledges that the Beta Offering may be discontinued at any time and that any data stored in the Beta Offering may become unavailable at that time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BETA OFFERINGS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND HYPERMODE WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE BETA OFFERINGS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE HYPERMODE’S LIABILITY WITH RESPECT TO THE BETA OFFERINGS WILL NOT EXCEED THE GREATER OF AMOUNTS PAID BY CUSTOMER FOR THE BETA OFFERING OR $100.00. WITHOUT LIMITING THE FOREGOING, HYPERMODE DOES NOT REPRESENT OR WARRANT THAT: (A) CUSTOMER’S USE OF THE BETA OFFERINGS WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE BETA OFFERINGS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR (C) THAT ITS SECURITY MEASURES WILL PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER WILL BE FULLY LIABLE UNDER THESE TERMS TO HYPERMODE FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE BETA OFFERINGS, ANY BREACH BY CUSTOMER OR ITS AUTHORIZED USERS OF THESE TERMS AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
What Are the Actions That Are Off Limits?
Restrictions. To the maximum extent permitted by applicable law, Customer will not, directly or indirectly, and will not authorize any person, to take any of the following actions to Hypermode Technology:
(i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements;
(ii) reproduce, translate, adapt, or modify;
(iii) write or develop any program based upon it;
(iv) sell, sublicense, transfer any rights in, use for the benefit of or to provide services (e.g., as a service bureau), or allow access to unauthorized persons;
(v) transmit unlawful, infringing or harmful data or code to or from it;
(vi) replicate significant portions; or
(vii) otherwise use any Hypermode Technology, in each case, except as expressly permitted under these Terms.
Customer will prevent any unauthorized use of the Hypermode Technology and will immediately notify Hypermode in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to the Hypermode Technology through Customer. Hypermode reserves the right to investigate potential violations of these Terms. In the event Hypermode reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 6), Hypermode will have the right to suspend Authorized Users suspected of the violation from accessing the Hypermode Service for as long as it takes to address the potential violation. Customer must not incorporate, link, distribute or use any third party software or code in conjunction with (1) the Software (2) any software, products, documentation, content or other materials developed using the Software, or (3) any derivative works that Customer make using the source code portions of the Software (if any), in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to the Software, including the distribution or disclosure of any source code; or (b) grants, purports to grant or has the potential to grant to any third party any rights to or immunities under any intellectual property rights of Hypermode, including rights existing in or relating to the Software.
Compliance with Laws. Any and all of Customer’s use of the Hypermode Technology, including the operation of any Customer Applications and the Hypermode Service, must be in compliance with all applicable laws and regulations, including without limitation the development, deployment or operation of AI.
3. Hypermode API
Read This Section if You Want to Learn More About our Hypermode API
Modifications. Hypermode reserves the right to modify the Hypermode API and the API Materials, and to release subsequent versions of the Hypermode API, as explained in the rest of Section 3 below. Customer agrees that it may be required to obtain and use the most recent version of the Hypermode API in order for Customer Applications to continue to function with the Hypermode API and the Hypermode Service.
Emergencies. In the event of an emergency, critical failure, suspected critical failure, loss of license, or a security breach, without limiting any other right of Hypermode under these Terms, Hypermode reserves the right to modify or suspend the Hypermode API and the Hypermode Service at any time without notice or liability to Customer.
Planned updates. If not covered by the above, should Hypermode elect to modify or suspend the Hypermode API due to a planned change, it will use commercially reasonable efforts to give Customer 5 business days’ written notice of the modification or suspension.
Access to Customer Applications. If Hypermode reasonably requests access to any Customer Applications, Customer will provide Hypermode with access to the Customer Applications a for Hypermode to verify Customer’s compliance with these Terms.
4. Customer Applications
Keep This Stuff in Mind with Customer Applications
Permissions and Requirements. Customer represents and warrants to Hypermode that it has obtained and will maintain all necessary rights, permissions, and licenses, if any, in content, material, data, and software code appearing, used, stored, or displayed in or using any of the Customer Applications and that the Customer Applications will be in full compliance with all applicable laws and regulations and terms of applicable platform requirements (e.g., terms imposed by Apple and Google on developers and parties utilizing their respective technology platforms, marketplaces, etc.). If Customer uses third party IDs or other third-party services or offerings (each, a “Third Party Service”) to interact with the API Materials or Hypermode Service, Customer must at all times comply with all agreements, policies and other terms applicable to use of those Third Party Services. Customer shall not use the Hypermode Service for, and shall not develop or provide any Customer Application for: (i) automated decision-making that has legal or similarly significant effects on individuals unless it does so with adequate human review and in compliance with all laws, regulations and best practices; or (ii) purposes or with effects that are discriminatory, harassing, harmful or unethical. The Hypermode Services are not designed, tested, or certified for use or development of a Customer Application where it could result in a situation that threatens the safety of human life or results in catastrophic damages (including, for example, use in connection with any autonomous vehicle applications, weapons, weapons systems, nuclear installations, aviation, life-support computers or equipment (including resuscitation equipment and surgical implants), pollution control, hazardous substances management, or for any other life critical or dangerous application).
Mandatory End-User License Agreement Clauses. Customer will include, in a mandatory end-user license agreement for each Customer Application (“EULA”), in an agreement between Customer and each End User, legally enforceable provisions that are appropriate to the Customer Application, that obtain all necessary licenses, rights, consents, and permissions from the End User and that comply with all applicable laws, rules and regulations, and that include: (a) all terms, disclosures and information necessary to comply with the terms of these Terms; (b) each End User’s consent to the collection, processing, storage, disclosure, and use by Hypermode and service providers of Customer Data and Usage Data, and the transfer of Customer Data and Usage Data to and between Hypermode and service providers (which may be in the United States or in other countries), in each case for the purposes of (i) providing the Hypermode Service to Customer and End Users, (ii) improving the Hypermode API and Hypermode Service, and (iii) as otherwise set forth under these Terms; and (c) all disclosures, notices and/or consents relating to artificial intelligence and privacy laws and regulations.
[Enforcement. Customer will use its best efforts to enforce any violations of the EULA by an End User and immediately terminate an End User’s access to the Customer Application if the End User breaches the terms of the EULA.]
5. Payment
All The Payment Details You Should Know
If You decide to purchase a subscription to Hypermode Service, your subscription will be automatically renewed on a monthly basis (“Subscription Term”) at Hypermode’s then-current fees for such services, unless You cancel your subscription.
You may cancel your subscription, without penalty or obligation, at any time prior to end of amonthly renewal date. If You cancel, You will continue to have access to your subscription benefits until the end of your Subscription Term, at which point it will expire. Deleting your account or deleting the application from your device does not cancel your subscription or free trial.
Hypermode may change the fees for any feature of the Hypermode Service, including additional fees or charges. Don’t worry, we’ll give You advance notice and the adjusted fees will be applicable only in a future monthly billing cycle. All fees are exclusive of any applicable taxes, which You are responsible for. Unless otherwise indicated, all prices, fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
We process payments on our website through our third party payment providers who are solely responsible for managing your Account’s credit card or debit card payments. By providing your payment information, You will be subject to their terms of service and any other applicable polices. We receive limited information such as the last four digits of your credit card card or debit card number, the card type and billing address. You agree that by providing us your payment information, You authorize us to invoice You for the Hypermode Service You have in your Account and that no further consent, notice or authorization is required. You must notify us of any change in your billing address or the credit card used for the payment in your Account. All fees are non-refundable and exclusive of any applicable taxes, which You are responsible for.
You agree that Hypermode may suspend your access to the Hypermode Service if You fail to timely pay fees due to Hypermode. We’ll be sad to see You go, but if You wish to terminate your Account, follow the instructions in Section 6 Term and Termination below.
6. Term and Termination
Here’s What Happens Next If You Decide to Leave
Term and Termination. These Terms are effective for so long as You are subscribed to our Hypermode Service for each Subscription Term unless and until terminated by either You or Hypermode. You may terminate these Terms at any time by cancelling your monthly subscription.
In our sole discretion, Hypermode may terminate, suspend or delete your Account and these Terms if You fail to pay your subscription fees or Hypermode knows or reasonably believes You (i) violated any applicable laws (ii) are in breach of any provision of these Terms or (ii) otherwise take any actions that threaten or challenge Hypermode’s intellectual property rights, including rights in and to any Hypermode Service and Hypermode Technology. You will remain responsible for any accrued fees You owe Hypermode. If You have a free version of Hypermode Service, Hypermode has the right to terminate without cause and anytime with or without written notice to Customer.
Effect of Termination. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, warranty disclaimers, and limitations of liability. Termination will not limit any of Hypermode’s other rights or remedies at law or in equity.
7. Data Matters
The Nuts and Bolts of Your Data
Customer Data. Customer Data processed by the Hypermode Service is and will remain, as between Hypermode and Customer, owned by Customer. Customer hereby grants Hypermode the right to process, transmit, store, use, and disclose Customer Data (a) to provide the Hypermode API and the Hypermode Service to Customer and End Users, (b) to improve, optimize, troubleshoot and create bug fixes for the Hypermode API, and (c) as otherwise set forth in these Terms. Customer is solely responsible for (i) Customer Data as provided or supplied by Customer or any End Users, (ii) for complying with any privacy and data protection laws and regulations applicable to Customer Data and Customer’s and End Users’ use of the Hypermode Service, and (iii) for maintaining its equipment, the timely transmission of Customer Data, and the accuracy, quality, integrity, and reliability of Customer Data. To the extent Customer is subject to laws that require a data processing agreement or the like, Customer shall contact Hypermode for its Data Protection Addendum.
Usage Data. Customer agrees that Hypermode may collect, create, use, disclose and otherwise process aggregated or deidentified data derived from Customer Data or Customer’s End Users’ use of the Hypermode Service (collectively, “Usage Data”) for Hypermode’s business purposes, including benchmarking and capacity planning, provided that Usage Data will be in an aggregated and/or otherwise deidentified form only and will not identify Customer or End Users.
Data Security. Hypermode will use commercially reasonable industry standard security technologies designed to protect the security, integrity, and confidentiality of Customer Data.
Customer Responsibilities. Customer represents and warrants that it has obtained and will maintain all rights, consents, and authorizations required to grant Hypermode the rights set forth in this Section 7 and for Hypermode to process Customer Data and Usage Data in accordance with the terms of these Terms.
Customer Name. Hypermode may list Customer as a customer in its promotional and marketing materials, including its website.
8. Indemnification
A Less Than Ideal Outcome
You bear the sole and exclusive responsibility for your use of the Hypermode Service. Hypermode and its affiliates, contractors, licensors, officers, directors, agents, or employees will have no liability to Customer for any claim arising out of or based upon: (a) the use of the Hypermode Service in combination with software, products or services not provided by Hypermode; (b) Customer’s failure to use the Hypermode Service in accordance with these Terms; (c) Customer’s modifications to the Hypermode Service; or (d) Customer Applications or the Customer Data.
By Customer. Notwithstanding anything to the contrary in Section 8, Customer will defend or, at its option, settle, any claim brought against Hypermode arising from: (a) the download, installation, duplication, storage, execution, display, performance, making of derivative works, use or distribution or transfer of any Customer Application or related documentation or any content or materials or derivative works or products used by or in the Customer Applications by any person or entity; (b) Customer’s breach of these Terms or any third party terms; or (c) Hypermode’s use of Customer Data or Usage Data, and Customer will pay damages finally awarded against Hypermode (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. Hypermode will provide Customer with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Hypermode may appear, at its own expense, through counsel of its choice.
9. Warranties; Disclaimer; Limitation of Liability
Managing Expectations: Understanding What We Can and Can’t Guarantee
Mutual Warranties. Each party represents and warrants to the other that: (a) these Terms has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of these Terms.
Limited Warranty. Hypermode represents and warrants to Customer that the Hypermode Service when used for its intended purpose and in accordance with the Documentation, the Hypermode Service will materially conform to Hypermode's Documentation during the Subscription Term. Customer’s sole and exclusive remedy, and Hypermode's sole and exclusive liability for any breach of this warranty will be, at Hypermode's sole discretion, to either fix the Hypermode Service to remedy the defect or refund a pro-rated portion of the applicable fees paid by Customer for the Hypermode Service, in each case on condition that Customer promptly notifies Hypermode in writing of any alleged breach of this warranty. This warranty is null and void to the extent the Hypermode Service: (i) fail to conform with this warranty as a result of its use with any third party hardware or software; (ii) are used for an unintended purpose, are used other than in accordance with the Documentation, or are otherwise used by Customer in breach of these Terms, or (iii) fail due to any defect in or misconfigurations of Customer Data.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HYPERMODE HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. HYPERMODE DOES NOT WARRANT THAT THE HYPERMODE TECHNOLOGY WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ITS SECURITY MEASURES WILL PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE OUTPUT FROM THE HYPERMODE SERVICE AND THE CUSTOMER APPLICATION GENERATED THROUGH THE USE OF THE HYPERMODE APPLICATION MAY BE SIMILAR OR IDENTICAL TO OTHER OUTPUTS AND APPLICATIONS INDEPENDENTLY PROVIDED BY HYPERMODE TO OTHERS. HYPERMODE DOES NOT REPRESENT OR WARRANT THAT: (I) ANY CUSTOMER APPLICATION OR OUTPUT DOES NOT INCORPORATE OR REFLECT THIRD PARTY CONTENT OR MATERIALS OR (B) ANY CUSTOMER APPLICATION OR OUTPUT WILL NOT INFRINGE THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. CUSTOMER APPLICATIONS AND OUTPUTS GENERATED THROUGH THE HYPERMODE SERVICE ARE NOT TESTED, VERIFIED, ENDORSED OR GUARANTEED TO BE ACCURATE, COMPLETE OR CURRENT BY HYPERMODE. CUSTOMER SHOULD INDEPENDENTLY REVIEW AND VERIFY ALL CUSTOMER APPLICATIONS AND OUTPUTS AS TO APPROPRIATENESS FOR ANY OR ALL CUSTOMER USE CASES OR APPLICATIONS.
FOR THE AVOIDANCE OF DOUBT, FREE VERSIONS OF THE HYPERMODE SERVICE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND.
Limitation of Liability. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS AND INFRINGEMENT OF HYPERMODE’S INTELLECTUAL PROPERTY RIGHTS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THESE TERMS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S PAYMENT AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS AND INFRINGEMENT OF HYPERMODE’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THESE TERMS WILL EXCEED THE GREATER, OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNT PAID BY CUSTOMER UNDER THESE TERMS DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
Nothing in these Terms limits in any way Hypermode’s liability to Customer where it would be unlawful to do so, including to the extent applicable, liability for death or personal injury caused by Hypermode’s negligence, or for fraud or fraudulent misrepresentation.
10. General
A Few Other Essentials Not to Miss
Assignment. Hypermode may assign these Terms or any of its rights or obligations under these Terms without your prior written consent. You may not assign or transfer these Terms without the prior written consent of Hypermode. Any attempted assignment by You will be invalid and unenforceable. Subject to the foregoing, these Terms will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under these Terms due to any cause beyond its reasonable control, including an act of war, terrorism, act of God, earthquake, flood, epidemic, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet. The delayed party will give the other party notice of such cause and will use its reasonable commercial efforts to correct such failure or delay in performance.
Governing Law. These Terms will be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
Notices. On occasion, we may also provide You notice by sending it to the email address in your Account or sending You a notice through your Account. You can reach out to Hypermode at 555 Bryant St. #208, Palo Alto, CA 94301 or email us at legal@hypermode.com.
Amendments.
Keep an Eye Out for Changes
Hypermode reserves the right to make changes to these Terms and any such changes will be posted on our website and indicated at the top of the page, the date last updated. So we encourage You to regularly check for any updates. We may also notify You through email or your Account. Customer will be responsible for reviewing and becoming familiar with any and all such changes. If Customer continues to use any portion of the Hypermode Technology or Hypermode Service after notice of any changes has been provided or posted, Customer will be deemed to have accepted any and all such changes.
Government Use. The API Materials are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Any use, modification, derivative, reproduction, release, performance, display, disclosure or distribution of the Hypermode Technology by any government entity is prohibited, except as expressly permitted by the terms of these Terms. Additionally, any use by U.S. government entities must be in accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4.
Miscellaneous. These Terms are the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to the subject matter. The headings in these Terms are inserted for convenience and are not intended to affect the interpretation. Waiver of any of these Terms or forbearance to enforce any term by either party will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other provision of these Terms. Any provision found to be unlawful, unenforceable or void will be severed from the remainder of these Terms, and it will continue in full force and effect without the severed provision. Customer agrees to comply with all applicable export control laws and regulations related to its use of Hypermode Technology, including those administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”). Customer will not directly or indirectly export, re-export or otherwise deliver Hypermode Technology to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that it is not a Sanctions Target or prohibited from receiving Hypermode Technology pursuant to these Terms under applicable laws, including Export Laws.
11. Privacy Policy and DPA
Your Privacy is Important to Us
Your use of the Hypermode Service is governed by our Privacy Policy and our Data Processing Addendum. [5]
12. Binding Arbitration
How Do We Handle Disputes
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND HYPERMODE CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND HYPERMODE TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
You agree that, in the event any dispute or claim arises out of or relating to your use of the Services, You will contact us at legal@hypermode.com and You and Hypermode will attempt in good faith to negotiate a written resolution of the matter directly. You agree that if the matter remains unresolved for 30 days after notification (via certified mail or personal delivery), such matter will be deemed a “Dispute” as defined below. Except for the right to seek injunctive or other equitable relief described under the “Binding Arbitration” section below, should You file any arbitration claims or any administrative or legal actions without first having attempted to resolve the matter by mediation, then You agree that You will not be entitled to recover attorneys' fees, even if You may have been entitled to them otherwise.
Binding Arbitration. You and Hypermode agree that any dispute, claim or controversy arising out of or relating to these Terms or to your use of the Hypermode Technology (collectively “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that You and Hypermode both agree to waive the right to a trial by jury. Notwithstanding the foregoing, You may bring a claim against Hypermode in “small claims” court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
Class Action Waiver. You and Hypermode agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that You and Hypermode both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless You and Hypermode agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person’s claims and may not preside over any form of class action proceeding.
Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Binding Arbitration” section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879).
Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure. Unless You and Hypermode agree otherwise, the seat of the arbitration shall be in San Francisco, California. If your claim does not exceed USD $10,000, then the arbitration will be conducted solely on the basis of documents You and Hypermode submit to the arbitrator, unless You request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD $10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
Arbitrator’s Decision and Governing Law. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Warranties; Disclaimer; Limitation of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Fees. Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to: legal@hypermode.com with the subject line “HYPERMODE ARBITRATION AND CLASS ACTION WAIVER OPT-OUT”. The notice must be sent within thirty (30) days of your first use of the Hypermode Service, otherwise You shall be bound to arbitrate any disputes in accordance with the provisions of these Terms for binding arbitration. If You opt-out of these arbitration provisions, Hypermode also will not be bound by them.
13. Feedback
We Care About Your Feedback of the Hypermode Service
We welcome and encourage You to provide feedback, ideas, enhancement requests, recommendations, comments and suggestions for improvements to the website and our Hypermode Technology and Hypermode Service ("Feedback"). You may submit Feedback by emailing us at help@hypermode.com. You acknowledge and agree that Hypermode shall own all right, title and interest in the Feedback and is the sole exclusive owner of Feedback and You agree to assign all rights, title and interest You have in such Feedback to Hypermode together with all intellectual property rights therein.
14. Notice for California Residents
You May Want to Pay Attention If You Are From CA
If You are a California resident, You may have these Terms mailed to You electronically by sending a letter to us with your email address and request for the Terms and any linked terms. In addition, under California Civil Code Section 1789.3, You may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at 1-800-952-5210 in order to resolve a complaint regarding the website or to receive further information regarding use of the website.
