Please read the terms and conditions contained in this Hype Creator Agreement (the “Creator Terms”), our Data Processing Addendum (“Data Processing Addendum”), and our Privacy Policy (“Privacy Policy”) carefully. These Creator Terms govern your use of the website located at hype.co and associated web app at app.hype.co (collectively, the “Site”) and our website plugin (“Plugin”), currently available via JavaScript or as a native WordPress Plugin at https://wordpress.org/plugins, collectively called the “Services”. You as a content creator or influencer (“Creator”, “you” or “your”) can build landing pages hosted via the Site (each, a “Creator Page”) and install the Plugin on a custom website built and hosted using third-party tools (“Creator Site”) to solicit contact information and facilitate payments from visitors via the Services.
If you are accessing and using the Services just as a user consuming or subscribing to content of Creators, paying for products or services offered by Creators, or making a contribution, tip or donation to Creators (a “User”), your use and interactions with the Site with the Services will be governed by the User Terms.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE CREATOR TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND HYPE THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 17 “DISPUTE RESOLUTION FOR INDIVIDUALS” AND SECTION 18 “DISPUTE RESOLUTION FOR ENTITIES” BELOW FOR DETAILS REGARDING ARBITRATION.
By accessing or using the Services as a Creator, you agree to be bound by the terms and conditions set forth in these Creator Terms. If you access or use the Services on behalf of an entity, you represent that you have the authority to bind such entity to these Creator Terms and that these Creator Terms is fully binding upon them. In such a case, the term “you” or “your” will refer to such entity. If you do not have that authority, or if you otherwise do not agree with the terms and conditions set forth in these Creator Terms, you may not access or use the Services.
Please review our Privacy Policy, which also governs your use of the Services, for information on how we collect, use and share personal information.
Due to the evolving nature of the Services, Hype reserves the right to modify these Creator Terms, at any time and without notice, at our sole discretion. If Hype determines that a modification may materially adversely impact you, Hype will provide you with reasonable notice prior to implementing the modification. If you do not wish to be bound by any new or modified terms, you must cease all use of the Services. The date on which these Creator Terms was last updated is shown in the “Last Updated” legend on the top of these Creator Terms.
You may use the Services only if you are at least 16 years of age (or such other minimum age at which you can provide consent to data processing under the laws of your territory), and not otherwise barred from using the Services under applicable law. If you are over 16 years of age but under the age of majority in your respective jurisdiction, you hereby represent and warrant that your parent or legal guardian has read these Creator Terms and accepts them on your behalf. Parents and legal guardians are responsible for the acts of their minor children when using the Services, whether or not the parent or guardian has authorized such acts.
5.1
Hype will provide you with access to templates, themes, content and software (“Hype Materials”) to enable the creation of custom landing pages hosted by Hype. Subject to the terms and conditions of this Creator Agreement, Hype hereby grants you a limited, non-transferable (except as permitted herein), non-sublicensable, non-exclusive, internal-use, right and license to use the Hype Materials to incorporate into your Creator Pages during the term of these Creator Terms.
5.2
Our Services will permit you to view and adjust some of your Hype account settings, such as certain criteria your Users (your “Contacts”) must meet to have access to content on your Creator Pages or Creator Site, and view your Hype revenue performance. Such information is currently available at app.hype.co.
5.3
Subject to the rights expressly granted by Hype to you under these Creator Terms, Hype or its licensors exclusively own all rights, title and interest in and to the Hype Materials and the Services, including all source code and object code, interfaces developed for use of the Services; all modifications, enhancements, revisions, changes, copies, translations, improvements, and derivative works of the Hype Materials and the Services and intellectual property rights therein; and any and all other materials available on the Hype website or through the Services and all intellectual property rights therein.
6.1
If you comply with these Creator Terms, Hype grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App. Except as expressly permitted in these Creator Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
6.2
This Section 6.2 applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Creator Terms, and upon your acceptance of the Creator Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Creator Terms against you as a third-party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
7.1
You will not, and will not permit others to:
(a)
license, sublicense, assign, convey or transfer any rights granted hereunder;
(b)
publish, display, disclose, sell, rent, lease, store, loan, distribute, transmit, translate, publicly display or perform, co-brand, frame, host, outsource, or otherwise commercially exploit the Services;
(c)
use, display, mirror or frame the Services or any individual element within the Services or other proprietary information, or the layout and design of any page or form contained on a page, without Hype’s express written consent;
(d)
access, tamper with, or use non-public areas of the Services, Hype’s computer systems, or the technical delivery systems of Hype’s providers;
(e)
attempt to probe, scan or test the vulnerability of any Hype system or network or breach any security or authentication measures;
(f)
avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Hype or any of Hype’s providers or any other third party (including another user) to protect the Services;
(g)
attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Hype or other generally available third-party web browsers;
(h)
attempt to decipher, decompile, disassemble, reverse engineer, engage in model extraction or stealing attacks or otherwise attempt to discover the source code or underlying components of models, algorithms, and systems of any of the software used to provide the Services (except to the extent such restrictions are contrary to applicable law);
(i)
use the Services in any manner that may infringe any intellectual property rights, rights of privacy or other rights of Hype or any third party;
(j)
use the Services in a manner that (i) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (ii) is fraudulent, false, misleading or deceptive; (iii) is defamatory, obscene, pornographic, vulgar or offensive; (iv) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (v) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (vi) promotes illegal or harmful activities or substances or (vii) disparages Hype or any other person or party;
(k)
use the Services for any service bureau, time-sharing, resale or similar purposes;
(l)
circumvent any technological measure or authentication measures implemented by Hype;
(m)
access or use the Services in violation of any applicable laws or for any purpose other than as expressly permitted under these Creator Terms;
(n)
interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(o)
impersonate or misrepresent your affiliation with any person or entity; or
(p)
encourage or enable any other individual to do any of the foregoing.
7.2
Other than as incorporated in the Hype Materials, Creator Pages and the Plugin, in each case by Hype, you may not, directly or indirectly, authorize any other person or entity to use any Hype trademarks or service marks (collectively, “Hype Marks”) without Hype’s express permission. Any goodwill generated your use of the Hype Marks will inure solely to Hype. However, during the term of this Agreement, you may publicly identify Hype as the provider of the Plugin. Additionally, Hype may publicly identify you as a Hype user or creator, and you hereby consent and grant Hype a license to use your trade names, trademarks, service marks and logos in connection with Hype’s business purposes, including on Hype’s websites and other marketing materials. Hype will cease any such use to the extent you reasonably object in writing under Section 19.10 or upon termination of these Creator Terms with you. Neither you nor Hype will imply any untrue sponsorship, endorsement, or affiliation between you and Hype.
7.3
Hype is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Creator Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including Creator Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Creator Terms. We have the right to investigate violations of these Creator Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
7.4
You are responsible for maintaining the confidentiality and security of any credentials made available to you by Hype or through the Services, including, but not limited to, any password or other account access information. Hype is not liable for any loss or damage arising from any unauthorized access of your credentials. You will take appropriate steps and precautions for the protection of the Services in your possession or control, including keeping all tangible forms of the Services under access and use restrictions sufficient to prevent any unauthorized use or access.
8.1
During the term of these Creator Terms and afterward, you will not take any action or make any statement that disparages or denigrates Hype or the Services, or otherwise injure the reputation of Hype.
8.2
Without limiting Section 8.1, you represent that you have not committed and will not commit any morally repugnant act which may bring yourself or Hype, in Hype’s sole discretion, by association, into public disrepute, contempt, scandal or ridicule, or which may insult or offend the public or any protected group or class thereof including, without limitation, the general community to which the Hype and/or the Services are directed, and as such, may reflect unfavorably upon the reputation of the Hype or the Services irrespective of whether such act is related to your services hereunder and of the length of time that has elapsed since such act was committed. If you breach Section 8.1 or this Section 8.2, then in addition to Hype’s other rights and remedies available at law or in equity, Hype will be entitled to terminate these Creator Terms and receive a prompt refund from you in full of any fees paid to you under these Creator Terms.
9.1
Our Services may permit you to store or share content such as your cover photo, profile photo, text (such as in posts, on the Creator Site or Creator Page or communications with others), page wallpaper, files (such as images, movies, PDFs, and vCards), links, documents, data, graphics, images, music, software, audio and video. Anything (other than Feedback and Hype Materials) that you post or otherwise make available through the Services is referred to as “Creator Content”. Hype does not claim any ownership rights in any Creator Content and nothing in these Creator Terms will be deemed to restrict any rights that you may have to your Creator Content.
9.2
By making any Creator Content available through the Services you hereby grant to Hype a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your Creator Content (i) in connection with your Creator Pages, including without limitation permitting Contacts and other Users to access your Creator Content via the Services and (ii) otherwise for operating (including without limitation featuring your Creator Site in Hype’s marketing and promotional initiatives), providing and improving the Services.
9.3
You are solely responsible for all your Creator Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your Creator Content under these Creator Terms. You represent and warrant that neither your Creator Content, nor your use and provision of your Creator Content to be made available through the Services, nor any use of your Creator Content by Hype on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
9.4
Hype believes in full transparency and in full, fair and effective disclosures of material facts relating to your relationship with Hype and the Users. Accordingly, Hype requires that you comply with all applicable laws and regulations relating to your Creator Content, including without limitation, the FTC’s Guides Concerning Endorsements and Testimonials in Advertising, as well as the FTC Disclosures Guide and the FTC Native Advertising Guidelines. Relatedly, you also agree that at all times:
(a)
Your Creator Content is accurate and substantiated and does not contain any content, information or materials known by you to be false, inaccurate or misleading;
(b)
You are solely responsible for your Creator Content and you have (and will continue to have) all rights, clearances, consents and authorizations that are necessary to grant the rights granted by you under these Creator Terms;
(c)
Your Creator Content must be original and must reflect your honest and truthful opinions, findings, beliefs or experiences; and
(d)
for any third-party talent incorporated into your Creator Content, you have the right and authority to bind such third party to the terms in these Creator Terms, including without limitation, on the content specific representations, morals and non-disparagement clauses.
9.5
You can remove your Creator Content by specifically deleting it. You should know that in certain instances, some of your Creator Content (such as posts or comments you make) may not be completely removed and copies of your Creator Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your Creator Content.
9.6
Hype will be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, methodologies, and techniques that it acquires or uses in the course of providing the Services for any purpose. In addition, you may from time-to-time submit feedback, comments, suggestions, questions, ideas, or other information to Hype concerning Hype’s Services or other products, services, technology, techniques, processes or materials (“Feedback”). Hype may in connection with any of its products and/or services freely use, copy, disclose, license, distribute and otherwise exploit such Feedback in any manner without any obligation, payment, royalty or restriction whether based on intellectual property rights or otherwise.
10.1
Hype will provide you with access to software (“Software”) to enable the creation of custom landing pages and the integration of the Plugin on the Creator Site. The Software will enable Users to purchase subscriptions or access certain content made available on the Creator Site or to make Contributions to you. You may only use, install or incorporate Software into your systems, in accordance with Hype’s instructions and directions and for the sole purpose of integrating the Creator Site with the Plugin. You will be responsible for all costs and expenses associated with using the Services, including ensuring that you have the necessary and compatible technology, hardware, systems and software to use the Software and Plugin as directed by Hype.
10.2
You are responsible and liable for the operation, hosting, development, display, access and delivery of all websites owned and controlled by you, including the Creator Site and all content therein, and ensuring that each User who has made a Purchase or Contribution via the Hype Services is able to obtain proper access to the content associated with their Purchase or Contribution.
10.3
Each User's access to the Creator Site will be governed by the terms and conditions governing your website, including any online terms of use or service, and privacy policy. You represent, warrant and covenant that your terms and conditions and privacy policy contain all terms that are required to be agreed to by your users for Hype to perform all services contemplated hereunder. However, any use of the Plugin by a User will be governed by the User Terms and Privacy Policy.
10.4
Hype’s access to the Creator Site will be governed by this Agreement. You hereby authorize Hype to place the Plugin on the Creator Site to enable Users to access certain content on the Creator Site, to access and integrate with any of your software, data or systems for the Plugin to perform the functions described in this Agreement and to allow Hype to track the activities of visitors of the Creator Sites while accessing the Creator Site, regardless of whether such visitors are Users or visitors of the Creator Site who have not registered with Hype. Activities that may be tracked by Hype include the member's browsing activity on the Creator Site, any sharing of any Creator Site content by the User and any use of the Plugin.
10.5
You may be responsible for additional fees in connection with the Creator Site, as further described in Section 12.6.
Hype respects copyright law and expects its users to do the same. It is Hype’s policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Hype’s Copyright and IP Policy for further information.
12.1
When a User purchases a one-time or recurring access to certain content, products or services offered by a Creator (each, a “Purchase”) or makes a one-time or recurring tip, donation or contribution (each, a “Contribution”), Hype will use a third-party payment processor to collect the amounts received from such User. The third-party vendor will then remit the value from the Purchase and/or Contribution received and cleared from the applicable User to you (“Creator Payout”) subject to the fees that Hype retains for itself (“Hype Fees”), currently 2% of Contributions and 5% of Purchases, or such other fees as agreed by the parties. You must create an account with our third-party payment processor and connect it to our Services to receive your Creator Payout, the schedule of which is determined by your agreement with our third-party payment processor.
12.2
As between Hype and you, you are solely responsible for (i) setting the pricing and rates for Purchases via the Creator Site or Creator Page and (ii) notifying Users of any upcoming subscription in accordance with applicable laws. For automatically renewing subscriptions with terms of six months or longer, some laws may require sending a notice of the upcoming renewal 30-45 days prior to renewal. As between Hype and you, you are solely responsible for complying with any cancellation processes described in the User Terms. You may issue refunds to your Users at your discretion, but Hype is still entitled to retain the Hype Fees for those applicable transactions. You may not publish, set or convey any other pricing terms that conflict with or supplement these Creator Terms or the User Terms.
12.3
As between Hype, User and you, you will solely ensure that your receipt and use of any such Contributions complies with all applicable laws, including those relating to charitable Contributions and receipts or other rules on such transfers.
12.4
You should not rely on Hype for legal advice. Hype recommends that you consult with legal counsel if you have any questions, including regarding your Contributions.
12.5
All Creator Payouts, refunds and any other fees associated with or arising from the Services are processed through a third-party vendor. Hype is not responsible for and disclaims all liability for any failure or delay in processing any Creator Payout, refund and/or any other payment caused by an act or omission outside of Hype’s control.
12.6
To access certain features and benefits of the Services, including (i) activating the Plugin on your Creator Site, (ii) using advanced design customization tools when editing your Creator Page, (iii) creating multiple Creator Pages instead of relying on a one-size-fits-all link-in-bio page or (iv) using more than 500 messaging credits in a month, Hype requires the purchase of a subscription (each, a “Subscription”). For additional terms about each subscription model and associated fees, plus any applicable taxes, and other charges (the “Subscription Fees”), please see the Hype App Marketplace.
(a)
When you purchase a Subscription, you expressly authorize us (or our third-party payment processor) to charge you for such Subscription. We may ask you to supply additional information relevant to your Subscription, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Subscription, you authorize us to provide your Payment Information to third parties so we can complete your Subscription and to charge your payment method for the type of Subscription you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Subscription (such information is included within the definition of Payment Information). By initiating a Subscription, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Subscriptions are non-refundable and non-transferable except as expressly provided in these Creator Terms. All fees and applicable taxes, if any, are payable in United States dollars.
(b)
In connection with your Subscription you will be charged the monthly Subscription Fee, at the beginning of your Subscription and each year thereafter, at the then-current Subscription Fee. BY STARTING A SUBSCRIPTION, YOU AUTHORIZE HYPE TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each month following the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. By agreeing to these Creator Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Hype. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Creator Terms.
(c)
YOUR PAYMENT OF A SUBSCRIPTION FEE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PAYMENT AND/OR RECEIVE A REFUND OF YOUR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Subscription, we reserve the right to cancel your Subscription for any reason; if we cancel your Subscription we’ll refund any payment you have already remitted to us for such Subscription. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel the next Subscription period, you can visit the billing settings in the Hype web app at app.hype.co/apps/billing or send an email to [email protected]. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.
12.7
You will be responsible for the payment of all taxes in connection with these Creator Terms, including the Creator Payouts and Contributions.
13.1
Each party will comply with the Data Processing Addendum, the terms of which are incorporated herein by reference.
13.2
Notwithstanding anything to the contrary in these Creator Terms or the Data Processing Addendum, you acknowledge that the Services are run on software, hardware, and networks, any component of which may, from time to time, require maintenance or experience problems or breaches of security beyond our control.
13.3
Certain features and functionalities within the Services may allow you to interface or interact with, access, disclose Creator Content to, and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services. Hype does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. You are solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for you to use the Third-Party Services in connection with the Services.
14.1
Hype may modify or suspend the Services or any features or functionalities of the Services or suspend your access to the Services, from time to time, for any reason and in its sole discretion, without providing any notice to you. In addition, Hype may, upon notice to you, terminate these Creator Terms, discontinue the Services or terminate your access to the Services, for any reason and in its sole discretion.
14.2
You may terminate these Creator Terms at any time and for any reason, by providing prior written notice to Hype to the email address set forth in Section 19.10.
14.3
In the event Hype terminates these Creator Terms, discontinues the Services or terminates your access to the Services under Section 14.1 or you terminate these Creator Terms under Section 14.2: (a) you will cease all use of the Services and remove any Hype Materials from your systems and destroy any copies of the Hype Materials and Hype confidential information in your possession or control; (b) any license or any other right Hype granted to you under these Creator Terms will terminate; and (c) Sections 7.1, 7.2, 7.3, 8, 9.2, 9.6, 12 (for outstanding Subscription Fees), 14.3, and 15 - 18 of these Creator Terms will survive.
15.1
You will defend, indemnify and hold harmless Hype, its affiliates, officers, directors, agents, representatives, and employees from any claim, suit, or demand (including legal fees) made or incurred by any third party that is based on or arising out of your: (a) breach of these Creator Terms; (b) Creator Content, Creator Site or Creator’s products or services, (c) use of the Services or (d) other actions or omissions resulting in liability to Hype. Hype will promptly notify you in writing of a claim or suit and provide reasonable cooperation (at your expense) and full authority to defend or settle the claim or suit. You may not settle any claims which relate to or otherwise impact Hype without Hype’s written consent which may be withheld in its sole discretion.
15.2
THE SERVICES AND ANY OTHER ITEMS PROVIDED BY HYPE ARE PROVIDED “AS IS”. HYPE DOES NOT MAKE ANY OTHER REPRESENTATIONS, GUARANTEES, WARRANTIES OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY SERVICES OR ANY OTHER ITEMS MADE AVAILABLE BY OR ON BEHALF OF HYPE UNDER THESE CREATOR TERMS (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).
15.3
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER HYPE NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE CREATOR TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HYPE OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL HYPE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE CREATOR TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO HYPE FOR USE OF THE SERVICES IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO HYPE, AS APPLICABLE.
15.4
Each provision of these Creator Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages exists for the purpose of allocating the risks of these Creator Terms between the parties and constitutes an essential element of the basis of the bargain between the parties.
These Creator Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Sections 16 and 17 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Hype are not required to arbitrate will be the state and federal courts located in the Northern District of California and you and Hype each waive any objection to jurisdiction and venue in such courts. To the extent it may be applicable, the parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to these Creator Terms. In addition, these Creator Terms will not be governed by any law based in any way upon the Uniform Computer Information Transactions Act (UCITA).
17.1
Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Creator Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Hype agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Creator Terms, and that you and Hype are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Creator Terms.
17.2
Exceptions. As limited exceptions to Section 17.1 above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
17.3
Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Creator Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
17.4
Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
17.5
Injunctive and Declaratory Relief. Except as provided in Section 17.2 above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
17.6
Class Action Waiver. YOU AND Hype AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
17.7
Severability. With the exception of any of the provisions in Section 17.6 of these Creator Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Creator Terms is invalid or unenforceable, the other parts of these Creator Terms will still apply.
If you are accessing and using the Services on behalf of a company or other legal entity, any Dispute will be resolved exclusively accordingly to the process set forth in Section 17, expressly including the class action waiver, except that, to the extent legally permitted, (a) each party will be responsible for their own filing, administrative, arbitrative and similar fees, (b) the losing party will pay the prevailing party for all costs and attorney’s fees, and (c) the AAA Commercial Arbitration Rules will apply to any arbitration between us.
19.1
You agree that regardless of any statute or law to the contrary, any Dispute must be filed within one (1) year after the occurrence of the event or facts giving rise to a Dispute, or you waive the right to pursue any Dispute based upon such event or facts forever.
19.2
Each party is an independent contractor and not a partner or agent of the other. These Creator Terms will not be interpreted or construed as creating or evidencing any partnership or agency between the parties or as imposing any partnership or agency obligation or liability upon either party.
19.3
These Creator Terms exists for the benefit of the parties only, and only the parties may enforce it. The parties do not intend for these Creator Terms to confer any right or benefit on any third party, except for Hype’s indemnitees.
19.4
These Creator Terms may not be interpreted or construed to prohibit or in any way restrict either party’s right to perform any services for any third party or to otherwise restrict the placement of any resources of either party who are involved in the performance or use of the Services.
19.5
The delay or failure of either party to insist upon or enforce the other party’s strict performance of any provision of these Creator Terms, or to exercise any right or remedy under these Creator Terms, will not be interpreted or construed as a waiver or relinquishment to any extent of that party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect.
19.6
Neither party may assign these Creator Terms without the prior written consent of the other, which consent will not be unreasonably withheld or delayed, except that either party may assign these Creator Terms to an affiliate or to any successor by way of any merger, acquisition, sale of assets, consolidation or other corporate reorganization upon providing written notice to the other party. Subject to the foregoing, these Creator Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
19.7
These Creator Terms constitutes the entire agreement, and supersedes any and all prior agreements, between the parties with respect to the Services and any other items provided or to be provided under these Creator Terms.
19.8
The headings and captions used in these Creator Terms are used for convenience only and are not to be considered in construing or interpreting these Creator Terms. The words “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation. No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Creator Terms.
19.9
You agree that Hype may provide any notices to you under these Creator Terms by posting it on or through Hype’s website, emailing it to the email address associated with your Hype account, or mailing it to the street address listed in your Hype account. Notices sent to you by email are considered to be received by you within 24 hours of the time we send the email unless Hype receives notice the email was not delivered. Notices sent to you by mail are considered received by you within three (3) business days of the date we send the notice unless it is returned to us.
19.10
Notices to Hype must be sent to [email protected]. Notices sent to this email address shall be deemed only received when you receive a reply from Hype, other than an automated reply.
