Last Updated: March 10, 2023.
”) governs your use of the websites of HYPH (usa), inc. (“Company
”), including, without limitation www.HYPH.com
(collectively, the “Website
”), Company’s mobile applications (each, an “App
”), and any services and resources available or enabled via the Website or Apps and associated software made available through the Website and Apps (collectively, with the website, the “Service
”). BY ACCESSING OR USING THE SERVICE, CLICKING ON THE “I ACCEPT” OR SIMILAR BUTTON, AND/OR COMPLETING THE REGISTRATION PROCESS, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THIS AGREEMENT. IF YOU ARE NOT ELIGIBLE (SEE BELOW), OR DO NOT AGREE TO THE AGREEMENT, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE AND YOU MAY NOT ACCESS OR USE THE SERVICE
PLEASE BE AWARE THAT SECTION 14 (Dispute Resolution and Arbitration Agreement) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARERE SOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE BE AWARE THAT SECTION 4(a) (COMPANY COMMUNICATIONS) OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, AS APPLICABLE, VIA E-MAIL, TEXT MESSAGE AND PUSH NOTIFICATION.
1. Introduction and Eligibility
Please read this Agreement carefully before using the Service (as defined below). Your use of, and participation in, the Service may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreementor will be presented to you for your acceptance when you sign up to use the supplemental Service. Without limiting the foregoing, certain materials, tools, or components of the Service made available through the Service (including Premium Add-Ons and Plug-Ins) may be subject to license terms and conditions that are different from those set forth herein, such as terms and conditionsset forth in a Creative Commons license (which shall also be deemed “Supplemental Terms”). Any such terms and conditions will be identified for such materials on the Service, and by downloading any materials, you agree to be bound by and comply with such terms and conditions. If the terms herein are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the applicable Service for which the Supplemental Terms have been provided. Each of the Supplemental Terms is incorporated into this Agreement.
b. Eligibility. You must be at least 13 years old to use the Website, Apps, or Service. By accessingor using the Website, App, or Service or otherwise agreeing to this Agreement, you represent and warrant to us that: (i) you are at least 18 years old, or if you are under the age of 18, you are using the Service under the supervision of an adult who is at least 18 years old and who hereby agrees to this Agreement on your behalf; (ii) you have not previously been suspended or removed from the Service; and (iii) your use of the Service is in compliance with any and all applicable laws and regulations. The term “you” refers to the individual identified as the user as part of registering an account on the Service (or if such user is under 18 years old, the adult who is supervising the minor’s use and access to the Service).
c. No Use if Signed to a Record Label or Music Publisher. If you have assigned your rights to a music publisher or if you are a recording artist under contract with a record label, then you may not use the Service unless you have confirmed that the rights you have granted do not conflict with your grant of rights to Company. You are solely responsible for ensuring that your use of the Services is in compliance with any contractual obligations you may have to your music publisher and record label, including if you create any new compositions or recordings through the Services that may be claimed by your music publisher or label.
2. The Service
a. General. The Service is a platform designed to provide you with tools to make, share, and use original music. The Website, Apps, and Service (“Company Properties”) are owned and operated by Company. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Company are protected by intellectual property and other laws. All materials included in the Service are the property of Company or its third-party licensors. Except as expressly authorized by Company, you may not use any of the Company Properties. Company reserves all rights to the Company Properties not granted expressly in this Agreement.
b. Your Use of the Service and Materials. Unless otherwise expressly authorized by Company in writing, including on the Service, we authorize you, subject to this Agreement, to access and use the Company Properties solely for the use of the services we provide, at our discretion solely for your own personal purposes. Any other use is expressly prohibited.
c. App License. Subject to your compliance with the Agreement, Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Agreement of Service. Notwithstanding the first sentence in this section, with respect to any App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
d. Certain Restrictions. You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. In using the Service, you shall not:
(i) interfere with security-related features of the Company Properties, including by: (A) disabling or circumventing features that preventor limit use or copying of any content; or (B) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer or otherwise attempting to discover the source code of any portion of the Company Properties except to the extent that the activity is expressly permitted by applicable law;
(ii) interfere with the operation of the Company Properties or any user’s enjoyment of the Company Properties, including by: (A) uploading or otherwise disseminating any virus, adware, spyware, worm, or othe rmalicious code; (B) making any unsolicited offer or advertisement to another user of the Company Properties; (C) collecting personal information about another user or third party without consent; or (D) interfering with ordisrupting any network, equipment, or server connected to or used to providethe Company Properties;
(iii) perform any fraudulent activity including impersonating any person or entity, or claiming a false affiliation
(iv) disclose personal information about another personor harass, abuse, or post objectionable, pornographic, harmful, offensive, or obscene material;
(v) shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of your rights in the Company Properties to a third party without our express written consent;
(vi) use the Company Properties in an illegal way or inviolation of any applicable law or that otherwise results in fines, penalties, and other liability to us or others;
(vii) violate, or encourage others to violate, any right of a third party (including by infringing or misappropriating any third-party intellectual property right);
(viii) frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of Company;
(ix) use any metatags or other “hidden text” using Company’s name or trademarks;
(x) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
(xi) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post or transmit any Company Property in any form or by anymeans;
(xii) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Company Properties;
(ix) if you are a business entity, use the Service in connection with more than one artist per subscription; or
(viii) assist or permit any persons in engaging in any ofthe activities described above.
Company, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Company Property terminates the licenses granted by Company pursuant to the Agreement. You may use the Service only for its intended purpose.
e. Updates. You understand that Company Properties are evolving. As a result, Company may require you to accept updates to Company Properties that you have installed on your computer or mobile device. You acknowledge and agree that Company may update Company Properties with or without notifying you. You may also need to update third-party software from time to time in order to use Company Properties or such third-party software.
3. Account Creation and Your Account
a. Registering an Account.
Each user of the Service is a “User
.” Certain parts of the Service require you to create an account (“Account
”) by providing a valid email address, username, password and other information as prompted by the registration form. When registering, you are prohibited from selecting or using as a username: (i) a name of another person with the intent to impersonate that person; (ii) a name that is subject to any rights of a person other than you without appropriate authorization; or (iii) a name that is otherwise offensive, vulgar or obscene. For example, you may not register using the name of a musical artist, unless you have the rights to such name. We reserve the right to reject any username or to terminate your username and give such username to another user of the Service in our sole discretion, and without any liability to you. You represent and warrant that (i) the information you provide to us upon registration and at all other times will be accurate, current and complete and (ii) you will maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that any information you provideis untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future useof Service (or any portion thereof). You agree not to create an Account or use the Service if you have been previously removed by Company, or if you have been previously banned from any of Service.b. Your Log-In Credentials.
You are responsible for maintaining the confidentiality of your log-in credentials and are fully responsible for all activities that occur through the use of your credentials. You must notify us immediately at email@example.com
if you believe the confidentiality of your log-in credentials has been compromised or if you suspect unauthorized use of your Account. We will not be liable for any loss or damage arising from unauthorized use of your credentials. You agree that you shall monitor your Account to prevent use by minors, and you will accept full responsibility for any unauthorized use of Company Properties by minors. c. Necessary Equipment andSoftware.
You must provide all equipment and software necessary to connect to the Service, including but not limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service.
By entering into the Agreement or using the Service, you agree to receive communications from us, including via emails, text messages, and push notifications through the Service. You agree that texts may be generated by automatic telephone dialing systems. Communications from Company may includebut are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Company and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL TEXTS, YOU MAY TEXT “END” IN REPLY TO ANY SUCH PROMOTIONAL MESSAGE FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIREDTO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS), YOU CAN TEXT THE WORD “STOPALL” IN REPLY TO ANY SUCH TEXT, FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE SERVICE AND ABILITY TO ACCESS CERTAIN FEATURES AND FUNCTIONALITY.
5. Creating Hyphs
a. Creating with the Service.
The Service is a platform designed to provide you with tools to create sound recordings. Company may make available to you certain audio files, including samples, through the Service (“Stems
”). Stems are licensed, not sold, to you. Subject to your compliance with this Agreement, Company grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to use the Stems solely via the Service in combination with other sounds and lyrics in music productions to create new compositions and associated recordings (“Hyphs
”). This limited license means that you may modify, reproduce, publicly perform, distribute, transmit, communicate to the public, sublicense, and otherwise use such Stems solely in connection with your use of the Service for the creation of Hyphs for personal, non-commercial purposes, and in accordance with any limitations set forth herein or otherwise communicated by Company on or through the Service.
b. Types of Content.
You acknowledge that all information, data, text, software, music, sounds, musical compositions, lyrics, sound recordings, photographs, graphics, video, messages, tags and/or other materials accessible through Company Properties (collectively, “Content”
), including the Service, is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”
) through the Service (“Your Content”
), and that you and other Users of the Service, and not Company, are similarly responsible for all Content that you and they Make Available through the Service (“User Content”
c. Ownership of the Hyphs.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you hereby grant and assign to Company, exclusively, perpetually and throughout the universe, all right, title, and interest in and to any and all of your contributions to each of the Hyphs. Company is the exclusive owner of all right title and interest in and to the Hyphs throughout the universe, including all rights of the owner of copyright as specified in any applicable law in any jurisdiction. For the avoidance of doubt, Company or Company’s designees may exploit each Hyph in all media throughout the universe in perpetuity as Company may determine in its sole discretion. You hereby waive throughout the world any “moral rights,” if any, you may have as an author, as such term is commonly understood and acknowledge and agree that each Hyph may be changed, altered, or coupled with any other Stems or recordings at Company’s sole discretion. You acknowledge that you did not and will not contribute to any compositions as a co-author or otherwise and shall claim no interest (financial or otherwise) in or to the underlying copyright thereof.
d. Company’s Rights to Hyphs
. You acknowledge and agree that Company has the exclusive right to register (or cause the registration of) the compositions included in each Hyph with Societies throughout the world and to collect one hundred percent (100%) of any music publishing revenues for the Hyphs, including the so-called “Writer’s Share” in addition to the so-called “Publisher’s Share” of performance income generated by the relevant Hyph. You acknowledge and agree that Company has the exclusive right worldwide to collect, either directly or indirectly, all payments from DSPs for licenses for the Hyphs, whether direct or statutory, in connection with permanent digital downloads, temporary digital downloads, interactive or on-demand streaming, non-interactive or radio streaming, cloud services, or otherwise. You further acknowledge and agree that Company shall have the exclusive right to secure copyright registrations for the Hyphs, including any and all renewals and extensions thereof.
e. License to Hyphs that Include Your Content.
Company hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable right and license to use the User-Related Hyphs, including (i) publicly performing such Hyphs (including on social media platforms), (ii) reproducing such Hyphs, and (iii) synchronizing the Hyphs in timed relation to video for purposes of promoting your self. For the avoidance of doubt, the foregoing license does not include the right to authorize third parties to synchronize such Hyphs with video. You (1) have no right to receive any income or other consideration from any Hyphs, including User-Related Hyphs, or your use of any musical works, sound recordings, or audiovisual clips made available to you on or through the Services, and (2) are prohibited from exercising any rights to monetize or obtain consideration from any Hyphs within the Services or on any third party service (e.g., you cannot claim Hyphs that have been uploaded to a social media platform such as YouTube for monetization).f. Ownership of and License to Other Content.
When you as a User post or publish Your Content (other than your contributions to Hyphs) on or in the Company Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, distribute, publicly perform, publicly display, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform, and displayYour Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
g. License to Your Name and Likeness
. You further grant Company a royalty-free license to use your name, username, image, voice, and likeness to identify you as the source of any of Your Content and in connection with use of Hyphs that include Your Content, including for purposes of advertising and marketing Company and its licensees and exploitingany Hyph.
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on Company Properties, you hereby expressly permit Company to identify you by your username (which may be a pseudonym) as the contributor of Your Content in onnection with Your Content in any publication in any form, media, or technology now known or later developed.
i. Revenue Share
. Company, as the owner of the Hyphs, may license Hyphs to third parties and/or register the Hyphs with mechanical and performing rights societies (“Societies
”) and DSPs. Company does not guarantee collection of any or all revenue related to the use or licensing of Hyphs, including in connection with the Services. To the extent that the Company actually receives any music licensing revenues for Hyphs that include Your Content (“User-Related Hyphs
”), Company will report and pay a revenue share to you in accordance with this Agreement. Notwithstanding anything herein to the contrary, User-Related Hyphs may only include Stems and Your Content to bee ligible for such revenue share; User-Related Hyphs that include any Hyph that you modify, including by adding any of Your Content, are not eligible for revenue-share payments under this Agreement.
(1) Reports. For revenue received by Company attributable to any User-Related Hyph, within thirty (30) days after the end of each calendar month for which Company has received any revenue related to a User-Related Hyph, Company will post a link (the “Monthly Transaction Report”) in the Licenses section of the User’s Account on the Service, setting forth for each such User-Related Hyph the Applicable Revenue (the “Monthly ReportPeriod
(2) Revenues. "Applicable Revenues” means all monies actually received by the Company in cash by way of mechanical royalties, public performance royalties, synchronization royalties, and print music royalties arising from the sale or license and exploitation of a User-RelatedHyph.
(i) Hyph will credit the User with five percent (5%) of the Applicable Revenues received from societies for a User-Related Hyph attributable to the Monthly Report Period in question.
(ii) Hyph will credit the User with five percent (5%) of the Applicable Revenues received by Hyph from third parties for a User-Related Hyph pursuant to a direct license agreement attributable to the Monthly Report Period in question.
(iii) Hyph will credit the User with five percent (5%) of the proportionate amount of Applicable Revenues from blanket license fees received by Hyph from third parties under licenses that include the User-Related Hyph, which shall be calculated by taking the number of User-Related Hyphs vis-à-vis the number of all Hyphs (regardless of who owns those Hyphs) for which such blanket license agreement was issued.
(iv) The total of the foregoing credits each Monthly Report Period shall be the “Amount Due
” to you.
(4) Payment Process. You may request via the Service that Hyph remit the Amount Due to you to Your PayPal account (as identified by You at the time of such request for remittance), or through such other electronic banking systems as Hyph may implement from time to time (less any fee charged by PayPal or by such other electronic banking systems) when the Amount Due to you exceeds Two Dollars ($2.00). All payment accounts and account holders must be located in the United States.
(5) Any objection relating to any amount due or payment made to You here under, or otherwise, or any claim or dispute arising there from, must be made (and any claim or dispute commenced) by You no later than one (1) year after the earlier of the date the amount(s) in question become due or are paid to You, and You hereby waive any longer statute of limitations that may be permitted by law.
(6) Deceptive Traffic. You shall not, and shall not authorize or encourage any third party to, directly or indirectly generate queries, impressions of, or clicks on any User-Related Hyph for which a revenue share may be payable hereunder through any automated, deceptive, fraudulent, or other such means, including repeated manual clicks, the use of robots or other automated query tools, computer-generated search requests, and the fraudulent use of other search engine optimization services or software. Company shall be entitled to withhold some o rall of the Amount Due to you, for as long as Company deems appropriate in its discretion, as a reserve against possible third-party claims relating to fraudulent or infringing activity. Company will disclose any such with holding to you. Without limiting any other rights and remedies of Company, You agree that (i) Amount Due to You will be forfeited by You if Company determines that your Account or any act giving rise to any revenue share to which such Amount Due to You relates is subjected to or involved in any fraudulent or infringing activity, and (ii) to the extent that any fraudulent or infringing activity is determined by Company to be caused by any of your or your affiliates’ or associates’ actions or omissions, any costs incurred by Company (including legal fees and expenses) in connection there with may be deducted by Company from any amount otherwise payable to you by Company under this Agreement o rotherwise.
(7) End of Revenue Share. Company’s obligation to pay you the revenue share set forth in this Section shall cease on the 30th anniversary of the creation of the User-Related Hyph, unless this Agreement is earlier terminated.
j. Representations & Warranties; Indemnification.
(1) Representations & Warranties.
You represent, warrant and covenant that, at all times relevant here to:
(i) You Content, including all musical compositions and sound recordings embodied in a Hyph, and the uses of Your Content authorized hereunder, does not and shall not infringe any copyright or other intellectual property or proprietaryright of any third party;
(ii) Your Content, including all musical compositions and sound recordings embodied in a Hyph, does not contain any unauthorized samples;
(iii) You have all right, power and authority to enter into this Agreement and, to the extent specified herein, to grant, license, sell, assign, convey, and transfer all right, title, and interest in, to, and under Your Content, freeand clear of any licenses, rights, claims, liens, security interests, charges, restrictions, covenants, options, or other encumbrances or title defects, as may be necessary for Company and its licensees to fully enjoy the license granted hereunder, and to otherwise carry out the terms and provisions of this Agreement; and
(iv) You have secured all third-party consents, licenses, and permissions necessary to enter into and perform under this Agreement including, without limitation, those arising pursuant to any union agreements or collective bargaining agreements, and no further action or authorization on the part of Company, any licensee, or any third party, and no payment to any third party, is necessary to carry out the terms and conditions of this Agreement.
(2) You shall indemnify, defend, and hold harmless Company, its affiliates, and all officers, directors, employees, agents, owners and representatives of any of the from and against any and all claims, actions, demands, losses, liability, damages, costs and expenses, including reasonable attorneys' fees, arising out of or related to (i) any breach of any of the representations, warranties or covenants made in this Agreement by you, or (ii) the use of any User-Related Hyph or Your Content in accordance with this Agreement, including by any licensee.
k. No Obligation to Pre-Screen Content.
You acknowledge that Company has no obligationto pre-screen Content (including User Content), although Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without l imitation chat, text, or voice communications. In the event that Company pre-screens, refuses or removes any Content, you acknowledge that Company will do so for Company’s benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any of Your Content that you Make Available on Company Properties. Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Company Properties. Certain portions of the Service may enable you to specify the level at which such Service restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Company retains the right to create reasonable limits on Company’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Company in its sole discretion. m. User Content Generally
. Posting User Content, including contributing to Hyphs, is a privilege, not a right, and we may terminate such privileges of any User at any time and for any reason, without liability to such User. If you find objectionable content in any User Content, then please notify us by sending an e-mail to firstname.lastname@example.org
. You are solely responsible for the content of any User Content.
6. Copyright Infringement Claims, Company Marks
a. Procedure for Making Claims of Copyright Infringement. It is Company’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Company by the copyright owner or the copyright owner’s legal agent in accordance with our DMCA Policy. Without limiting the foregoing, if you believe that your work has been copied and posted on the Company Properties ina way that constitutes copyright infringement, please follow the steps set forth on our DMCA Policy.
b. Hyph, and other Company logos and product and service namesare or may be our trademarks (the “Company Marks”). Without our prior written permission, and except as solely enabled by any link we provide, you may not display or use in any manner the Company Marks.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you grant Company an unrestricted, perpetual, irrevocable, non-exclusive, worldwide, fully-paid, royalty-free, fully transferable and sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. You acknowledge that your submission of Feedback is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.
8. Interactions with Other Users
a. Content Provided by Other Users.
We do not represent or guarantee the truthfulness, accuracy, or reliability of User Content. You accept that any reliance on material postedby other Users or third-party service providers will be at your own risk. By using the Service, you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.
b. User Disputes.
We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service, including Users. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release us of all claims, demands, and damages in disputes among you and other Users of the Service and will not involve us in such disputes. Use caution and common sense when using the Service and dealing with other Users.
9. Financial Provisions.
a. Advertising Revenue. Company reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Service, and you acknowledge and agree that Company has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Company as a result of such advertising).
10. DISCLAIMER OF WARRANTIES
a. TO THE FULLEST EXTENT PERMITTED BY LAW, (A) THE COMPANY PROPERTIES AND CONTENT AVAILABLE THROUGH THE SERVICE (INCLUDING ALL STEMS) ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND (B) COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. COMPANY DOES NOT WARRANT THAT THE COMPANY PROPERTIES OR ANY PORTION OF THE COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, THAT ANY OF THOSE ISSUES WILL BE CORRECTED, OR THAT THE RESULTS OBTAINED FROM USE OF THE COMPANY PROPERTIES WILL BE ACCURATEOR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY PROPERTIES (INCLUDING ALL STEMS) IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICE MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICE, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURESOR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
b. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY ENTITLES (AS DEFINED BELOW) ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY ENTITIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
c. No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF COMPANY PROPERTIES. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF COMPANY PROPERTIES. COMPANY MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. COMPANY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH COMPANY PROPERTIES.
d. Third-Party Materials. As a part of Company Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.
11. LIMITATION OF LIABILITY AND INDEMNIFICATION
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, PARTNERS, AND LICENSORS (COLLECTIVELY, “COMPANY ENTITIES”) BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY COMPANY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE COMPANY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF $100 AND THE AMOUNTS YOU HAVE PAID TO COMPANY, IF ANY, DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE OF YOUR CLAIM AGAINST US .
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. FOR UK USERS, COMPANY DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY COMPANY’S NEGLIGENCE; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify the Company Entities from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) Your Content; (b) your unauthorized use of, or misuse of, the Company Properties; (b) your violation of any portion of this Agreement, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right (including, without limitation, in connection with any use of User Content or a Sound); or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you will cooperate with our defense of those claims.
12. Termand Termination
. This Agreement is effective beginning when you accept the Agreement or first access or use the Company Properties, and ending when terminated as described herein.b.Termination
. Ifyou violate any provision of this Agreement, your authorization to access the Company Properties and this Agreement automatically terminates. In addition, Company may, at its sole discretion, terminate this Agreement or suspend or terminate your access to the Company Properties, at any time for any reason or no reason, with or without notice, to the fullest extent permitted by applicable law. We may also change, suspend, or discontinue any aspect of the Company Properties at any time. You may terminate your Account and this Agreement at any time by sending an email to email@example.com
or use any termination functionality that may be offered through the Service. THE SERVICE WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 9 (f) (AUTOMATIC RENEWAL). c. Effect of Termination.
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases, although copies of Your Content may remain stored on back-up storage media maintained by or for us. You grant us a royalty-free license to retain such back-up copies of Your Content on storage media maintained by or for us. If you stop using the Company Properties but keep User Content on the Service, then this Agreement will continue to apply in full force and effect for so long as such User Content is available on or through the Service. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content.
All provisions of the Agreement which by their nature should survive, shall survive termination of Service, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
a. Third Party Service Provider. Intentionally omitted.
b. Third-Party Websites, Applications and Ads. Company Properties may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Company Properties and are subject to the Agreement and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Company. Company is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Company provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
c. App Stores. You acknowledge and agree that the availability of the Application and the Servicesis dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Company and not with the App Store. Company, not the App Store, issolely responsible for Company Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating there to (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to payall fees (if any) charged by the App Store in connection with Company Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Company Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
d. Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
You acknowledge and agree that (i) the Agreement is concluded between you and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Agreement of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the Agreement and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your licenseof the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
14. Dispute Resolution and Arbitration Agreement. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires users to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
a. Applicability of Arbitration Agreement.
Subject to the terms of this Arbitration Agreement, you and Company agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than incourt, except that: (1) you and Company may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
b. Informal Dispute Resolution.
There maybe instances when a Dispute arises between you and Company. If that occurs, Company is committed to working with you to reach a reasonable resolution. You and Company agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Company therefore agree that before either party commences arbitration against the other (or initiates anaction in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference
”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice
”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Company that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to firstname.lastname@example.org
or regular mail to our offices located at 1 Boston Place, Suite 2600, Boston, MA 02108. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
c. Waiver of Jury Trial.
YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
d. Waiver of Class and Other Non-Individualized Relief.
YOU AND Company AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 12 (i) (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator 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 the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection12 (i) (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Company agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in New York County, New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Company from participating in a class-wide settlement of claims.
e. Rules and Forum
. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision hereinwith respect to the applicable substantive law, the Federal Arbitration Act, 9U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Company agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counter claims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration
/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration
/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request
”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay,or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and otherwise agree, or the Batch Arbitration process discussed in subsection 12 (i) (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonableex change of information between the parties, consistent with the expedited nature of the arbitration. You and Company agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under subsection 12 (i) (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
g. Authority of Arbitrator.
The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and OtherNon-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the sub section entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by anarbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by acourt of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
h. Attorneys’ Fees and Costs.
The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11 (b)). If you or Company need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
i. Batch Arbitration.
To increase the efficiency of administration and resolution of arbitrations, you and Company agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Company by or with the assistance of the same law firm, group of law firms, ororganizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall
(1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requestsleft over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration
All parties agree that Requests are of a“substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability oft he Batch Arbitration process (“Administrative Arbitrator
”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Company.
You and Company agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forthin this provision.
j. 30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 1 Boston Place, Suite 2600, Boston, MA 02108, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, any e-mail you have submitted to us through the Website or Services, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms ofService will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
k. Invalidity, Expiration.
Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief, ” if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Company as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Notwithstanding any provision in the Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Company at: 1 Boston Place, Suite 2600, Boston, MA02108, or email@example.com, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this ArbitrationAgreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Company will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
a. Electronic Communications.
The communications between you and Company may take place via electronic means, whether you visit Company Properties or send Company e-mails, or whether Company posts notices on Company Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be inwriting. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign
You hereby release Company Entities and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Company Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Company Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Entity or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Service provided hereunder.c. Assignment.
The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior writtenconsent, and any attempted assignment, subcontract, delegation, or transfer inviolation of the foregoing will be null and void.d. Force Majeure.
Company shall not be liable for any delay or failure to perform resulting from causes outsideits reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. For UK Users, if a force majeure event occurs that affects Company’s performance of its obligations under the Agreement: (a) Company will contact you as soon as reasonably possible to notify you; and (b) Company’s obligations under the Agreement will be suspended and the time for Company’s performance of its obligations will be extended for the duration of the forcemajeure event. You may cancel the Services affected by a force majeure event which has continued for more than 120 days. To cancel please contact Company.
e. Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to Company Properties, please contact us at the mailing or email address found at the end of this Agreement. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation
.f. Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in acourt, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York County, New York.
g. Governing Law.
THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDERTHE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mailaddress you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the address below. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaidmail at the above address.
Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
k. Export Control.
You may not use, export, import, or transfer Company Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Company Properties, and any other applicable laws. In particular, but without limitation, Company Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s Listor Entity List. By using Company Properties, 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 prohibitedor restricted parties. You also will not use Company Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Companyare subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country inviolation of such laws and regulations.
l. Consumer Complaints.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 NorthMarket Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800)952-5210.m. Choice of Language.
This Agreement, and any contract between us, are only in the English language. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges enanglais.
n. Entire Agreement.
The Agreement ist he final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. Each party represents to the others that it is not relying on any representation, warranty, or promise not set forth in this Agreement.ContactInformation
HYPH (USA) Inc.1
Boston Place, Suite 2600
Boston, MA firstname.lastname@example.org