user AGREEMENT

Please read the terms and conditions contained in this Hype User Agreement (the “User Terms”) and our Privacy Policy (“Privacy Policy”) carefully because they govern your use of the website located at hype.co and associated web app at app.hype.co (collectively, the “Site”), our website plugin (“Plugin”) offered by Hype Kit, Inc. (“Hype”), which may be installed on a custom website (“Creator Site”) built by a Creator (defined below), and a Creator’s landing pages hosted via the Site (each, a “Creator Page”) collectively called the “Services.” Using these Services, you can subscribe to updates from Creators, pay for content, products or services offered by Creators, or make a tip or donation to Creators (“User”, “you” or “your”).

If you are accessing and using the Services as a content creator or influencer (a “Creator”) to build Creator Pages and use the Plugin on a Creator Site to grow your audience of subscribers and customers and facilitate payments, your use and interactions with the products and services offered by Hype will be governed by the Creator Terms.

‍IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE USER 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 13 “DISPUTE RESOLUTION FOR INDIVIDUALS” AND SECTION 14 “DISPUTE RESOLUTION FOR ENTITIES” BELOW FOR DETAILS REGARDING ARBITRATION.

1. Agreement to Terms.

By accessing or using the Services as a User, you agree to be bound by the terms and conditions set forth in these User 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 User Terms and that these User 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 User Terms, you may not access or use the Services.

2. Privacy Policy.

Please review our Privacy Policy, which also governs your use of the Services, for information on how we collect, use and share personal information.

3. Changes to these User Terms.

Due to the evolving nature of the Services, Hype reserves the right to modify these User 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 User Terms was last updated is shown in the “Last Updated” legend on the top of these User Terms.

4. Who may use the Services.

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 User 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. Use of the Services.

5.1

5.2

You may not, directly or indirectly, or authorize any other person or entity to, use any Hype trademarks or service marks without Hype’s express permission.

5.3

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 User 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, 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 User Terms. We have the right to investigate violations of these User Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

5.4

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.

6. Residuals; Feedback.

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.

7. DMCA/Copyright Policy.

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.

8. Hype Fees and Payment.

8.1

In connection with a Creator Page or the Plugin on a Creator Site (collectively, “Creator Interfaces”), you have the option of making a one-time or recurring tip, donation or contribution to the Creator (each, a “Contribution”) and purchasing one-time or recurring access to certain content, products or services offered by the Creator (each, a “Purchase”). The fees payable by you vary depending on the specific options selected by you through a Creator Interface or other Hype-hosted webpage. Some subscriptions may be available on a monthly or annual basis. Please check the specific Creator Interface or other Hype-hosted webpage for the current fees and prices for the Contributions and Purchases.

8.2

Whether you make a Contribution or Purchase (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction on behalf of Creator. We may ask you to supply additional information relevant to your Transaction, 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 Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, 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 Transactions are non-refundable and non-transferable except as expressly provided in these User Terms. All fees and applicable taxes, if any, are payable in United States dollars.

8.3

If you make a Contribution or Purchase that is recurring in nature (“Subscription”), you will be charged the monthly, quarterly or annual Subscription fee listed by the applicable Creator, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each month, quarter or 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 start a Subscription, we (or our third-party payment processor) will automatically charge you each month, quarter or year after the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. By agreeing to these User 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 User Terms.

8.4

Because of occasional failures of some credit cards and/or bank account withdrawals, Hype cannot guarantee that Hype or the Creator will receive your Contribution or Purchase. Hype is not responsible for the policies of any third-party payment processors, including for withdrawing funds from your account. Hype reserves the right to use other methods of payment aside from any third-party payment processors.

8.5

EACH OF YOUR TRANSACTIONS ARE FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE TRANSACTION AND/OR RECEIVE A REFUND OF YOUR CONTRIBUTION OR PURCHASE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction, we’ll refund any payment you have already remitted to us for such Transaction. 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 send an email to the Creator by selecting the “Help” option in the account menu on their Creator Page or in the Plugin on their Creator Site. Unless decided otherwise by the Creator, 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.

8.6

Deduction of charitable and other nonprofit contributions is governed by Internal Revenue Service rules. You and the Creator to which you are making a Contribution are entirely responsible for compliance with all laws and legal obligations regarding charitable donations and receipts or other rules on such transfers. Hype makes no representations as to your legal rights or obligations or as to whether all or any portion of your Contributions are tax deductible. Hype will have no liability for any claim by any federal, state, local or any other tax authority with respect to the characterization on any applicable tax return of any Contribution by you. You should not rely on Hype for legal advice. Hype recommends that you consult with legal counsel if you have any questions regarding your Contributions. Hype CANNOT confirm the Section 501(c)(3) or 501(c)(4) or other legal status, or the truthfulness of any other representations or statements, of any Creator or their content. Hype may seek confirmation that a Creator is a legally recognized person or entity, but Hype is not required to undertake any such investigation or to make any other inquiries as to the actions or status of any Creator. In the event that your contribution is not used by a Creator as represented, or otherwise pursuant to your understanding or expectations, you understand that remedies may not be pursued or obtained from Hype.

8.7

You are responsible for all taxes that you incur in connection with your use of the Services, including, without limitation, your purchase of any content, good, or service via Hype. Without limiting the other terms herein, you agree that Hype may include additional charges for all sales taxes and any other applicable charges depending on the applicable laws, rules and regulations with any payment made in connection with and/or the Services.

9. Third-Party Services.

Certain features and functionalities within the Services may allow you to interface or interact with, access, disclose your information or materials 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.

10. Changes to and Discontinuation of the Services; Termination.

10.1

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 User Terms, discontinue the Services or terminate your access to the Services, for any reason and in its sole discretion.

10.2

You may terminate these User Terms at any time and for any reason, by providing prior written notice to Hype to the email address set forth in Section ‎15.10.

10.3

In the event Hype terminates these User Terms, discontinues the Services or terminates your access to the Services under Section ‎10.1 or you terminate these User Terms under Section ‎10.2: (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) you will pay any outstanding Contributions or Purchases as soon as reasonably practicable; (c) any license or any other right Hype granted to you under these User Terms will terminate; and (d) Sections 5.1, 5.2, 5.3, 6, 8, 10.3 and 11 - 15 of these User Terms will survive.

11. Indemnification, Disclaimers and Liability.

11.1

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 User Terms; (b) use of the Services or (c) 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.

11.2

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 USER 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).

11.3

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 USER 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 USER 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.

11.4

Each provision of these User 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 User Terms between the parties and constitutes an essential element of the basis of the bargain between the parties.

12. Governing Law and Forum Choice.

These User 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 13 and 14 “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 User Terms. In addition, these User Terms will not be governed by any law based in any way upon the Uniform Computer Information Transactions Act (UCITA).

13. Dispute Resolution for Individuals.

13.1

Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these User 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 User 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 User Terms.

13.2

Exceptions. As limited exceptions to Section 13.1 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.

13.3

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 User 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.

13.4

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.

13.5

Injunctive and Declaratory Relief. Except as provided in Section 13.2 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.

13.6

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.

13.7

Severability. With the exception of any of the provisions in Section 13.6 of these User Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these User Terms is invalid or unenforceable, the other parts of these User Terms will still apply.

14. Dispute Resolution for Entities.

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 13, 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.

15. General.

15.1

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.

15.2

Each party is an independent contractor and not a partner or agent of the other. These User 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.

15.3

These User Terms exists for the benefit of the parties only, and only the parties may enforce it. The parties do not intend for these User Terms to confer any right or benefit on any third party, except for Hype’s indemnitees.

15.4

These User 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.

15.5

The delay or failure of either party to insist upon or enforce the other party’s strict performance of any provision of these User Terms, or to exercise any right or remedy under these User 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.

15.6

Neither party may assign these User 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 User 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 User Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

15.7

These User 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 User Terms.

15.8

The headings and captions used in these User Terms are used for convenience only and are not to be considered in construing or interpreting these User 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 User Terms.

15.9

You agree that Hype may provide any notices to you under these User 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.

15.10

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.

15.11

Hype or its licensors exclusively own all rights, title and interest in and to 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 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.