Terms of Use Agreement

Last Updated Date: September 4, 2024

TERMS OF SERVICE

PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE "TERMS OF SERVICE") CAREFULLY. THIS AGREEMENT APPLIES TO THE HTTPS://HYPERBOLIC.XYZ WEBSITE AND ALL SUBDOMAINS THEREOF ("WEBSITE") AND THE SERVICES AND RESOURCES AVAILABLE ON OR ENABLED VIA THE WEBSITE (COLLECTIVELY THE "PLATFORM") WHICH IS OWNED AND OPERATED BY HYPERBOLIC LABS, INC. ("HYPERBOLIC," "WE," OR "US"). THESE TERMS OF SERVICE GOVERN YOUR USE OF THE WEBSITE AND ALL SERVICES AND RESOURCES AVAILABLE OR ENABLED BY HYPERBOLIC VIA THE WEBSITE, APPLICATION OR API (EACH A "SERVICE" AND COLLECTIVELY WITH THE WEBSITE, THE "SERVICES") AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE ("USERS"). BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING CLICKING ON ANY "I ACCEPT" BUTTON, COMPLETING A REGISTRATION PROCESS, DOWNLOADING OR USING ANY MOBILE APPLICATION WE MAKE AVAILABLE ("APPLICATION"), or using any application programming interfaces ("API") that we make available AND/OR BROWSING THE MARKETPLACE OR OFFERING FOR SALE OR PURCHASING SUPPLIER SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH HYPERBOLIC, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM "YOU" REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

THE WEBSITE PROVIDES A MARKETPLACE THAT ALLOWS SUPPLIERS OF GRAPHICS PROCESSING UNIT AND OTHER TYPES OR MEASUREMENTS OF COMPUTING POWER ("SUPPLIERS", AND SUCH PRODUCTS COLLECTIVELY THE "SUPPLIER SERVICES")TO OFFER SUCH SUPPLIER SERVICES FOR PURCHASE, AND ALLOWS ALLOW USERS THAT DESIRE TO PURCHASE SUCH SUPPLIER SERVICES (EACH, A "BUYER") TO OFFER TO BUY AND BUY SUCH SUPPLIER SERVICES.

THE TERMS OF SERVICE INCLUDE (1) YOUR AGREEMENT THAT HYPERBOLIC HAS NO LIABILITY REGARDING THE SUPPLIER SERVICES; (2) YOUR AGREEMENT THAT THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTY; (3) YOUR CONSENT TO RELEASE HYPERBOLIC FROM LIABILITY; AND (4) YOUR AGREEMENT TO INDEMNIFY HYPERBOLIC FOR YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR ANY SUPPLIER SERVICES.

SECTION 20 (DISPUTE RESOLUTION) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND HYPERBOLIC. AMONG OTHER THINGS, SECTION 20 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 20 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 20 CAREFULLY.

UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 20.10: (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 YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; 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.

PLEASE NOTE THAT IF YOU OPT-IN TO OBTAIN TEXT MESSAGES FROM HYPERBOLIC, SECTION 2.3 (TEXT MESSAGE SERVICES) OF THIS AGREEMENT BELOW CONTAINS TERMS RELATED TO OUR TEXT MESSAGE SERVICES.

You should print a copy of these terms or save them to your computer for future reference.

Your use of, and participation in, certain Services may be subject to additional terms ("Supplemental Terms") and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the "Agreement."

PLEASE NOTE THAT The Agreement IS subject to change by Hyperbolic in its sole discretion at any time. When changes are made, Hyperbolic will make a new copy of the Terms of Service available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the "Last Updated" date at the top of the Terms of Service. If we make any material changes, and you have registered with us to create an Account (defined below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Website and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Users. Hyperbolic may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

MARKETPLACE TERMS
1. Supplier Services Marketplace. Hyperbolic provides a marketplace that allows Suppliers to offer for sale and sell Supplier Services. As a marketplace, Hyperbolic does not offer, supply, or provide the Supplier Services, and any contract for Supplier Services ("Supplier Contract") is directly between the applicable Supplier and Buyer. While the Website may display information with respect to pricing and other guidance of the Supplier Services, such information is provided by the applicable Supplier, and not Hyperbolic. All matters concerning the Supplier Services, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance, uptime, quality, availability, and delivery, are solely between the Buyer and the Supplier. Hyperbolic makes no warranties or representations whatsoever with regard to any Supplier Services. You will not consider Hyperbolic, nor will Hyperbolic be construed as, a party to such Supplier Contracts, whether or not Hyperbolic may have received some form of revenue or other remuneration in connection with the Supplier Contracts, nor will Hyperbolic be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the Supplier Contracts.
2. Supplier Obligations. When you offer Supplier Services through the Services, you represent and warrant that (a) such Supplier Services will conform (i) to the descriptions of the Supplier Services that you provide in connection therewith, and (ii) to any descriptions, commitments, or guarantees you make in any applicable Supplier Contract; (b) you are licensed and registered, and in all other ways permitted to the extent required under all applicable law, to provide the Supplier Services as contemplated by this Agreement.
3. Restrictions. You may not use the Services to solicit, advertise for, or contact in any form, Users for employment or any other purpose not related to the Services. You may not use the Services to collect usernames and/or e-mail addresses of Users by electronic or other means without the express prior written consent of Hyperbolic.
4. Disputes. Hyperbolic is not a party to any interaction between any Users.While we may, in our discretion, help facilitate the resolution of disputes through various programs, Hyperbolic has no obligation to do so.
5. KYC. PLEASE READ CAREFULLY THIS IMPORTANT INFORMATION ABOUT PROCEDURES BEFORE USING THE SERVICES. Hyperbolic reserves the right to obtain, verify, and record information that identifies each person who has an Account on Hyperbolic. When you engage in transactions on the Services, we may ask for your name, address, date of birth, and other information that will allow us and/or our Payment Service Provider (as defined below) to identify you. We may also ask for a copy of your driver's license or other identifying documents. We reserve the right to require you to provide additional information and documents. Failure to provide such information upon request, as well as any other violation of this Agreement, may result in your removal from the Services, including a termination of your ability to offer to sell or buy Supplier Services.
6. Limited Payments Agent. By offering any Supplier Services on or through the Services, you hereby appoint Hyperbolic as your limited payments agent for the sole purpose of receiving, holding and settling payments due and owed to you arising out of the sale of such Supplier Services. Hyperbolic will process such payments and settle payments that are actually received by Hyperbolic, less any amounts owed to Hyperbolic, including taxes, fees and other obligations, and subject to the terms of this Agreement. You agree that a payment received by Hyperbolic, on your behalf, satisfies the payor's obligation to make payment to you, regardless of whether Hyperbolic actually settles such payment to you. If Hyperbolic does not settle any such payments as described in this Agreement to you, you will have recourse only against Hyperbolic and not the payor, as payment is deemed made by the payor to you upon constructive or actual receipt of such payment by Hyperbolic.
7. Disclaimer of Supplier Services and Supplier Contracts; Release. Hyperbolic has no control over and does not guarantee the existence, quality, reliability, safety or legality of Supplier Services; the truth or accuracy of Users' content or Suppliers' listings; the ability of Suppliers to sell Supplier Services; the ability of Buyers to pay for Supplier Services; or that a Buyer and Supplier will actually enter into and/or perform under a Supplier Contract. NEITHER HYPERBOLIC NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. YOU EXPRESSLY AGREE THAT HYPERBOLIC AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE ANY SUPPLIER SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE HYPERBOLIC, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, INVESTORS, AGENTS, PARTNERS AND LICENSORS (COLLECTIVELY, THE "HYPERBOLIC PARTIES") FROM ANY AND ALL LIABILITY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE BETWEEN YOU AND ANY OTHER USER OR YOUR USE OF ANY SUPPLIER SERVICES.
USE OF THE SERVICES. The Services and the information and content available on the Services are protected by applicable intellectual property (including copyright) laws. Unless subject to a separate license agreement between you and Hyperbolic, your right to access and use the Services, in whole or in part, is subject to this Agreement.
1. Hyperbolic Software. Use of any software and associated documentation that is made available via the Website or the Services, including without limitation any developer tools that enable Suppliers to integrate their Supplier Services with the Website ("Software"), is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Hyperbolic provide you with any tangible copy of our Software. Hyperbolic shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Agreement. Subject to your compliance with the Agreement, Hyperbolic grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
2. Licenses. Subject to your compliance with this Agreement, Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to: (i) download, install and use a copy of the Application on a single Device (as defined below) that you own or control and to run such copy of the Application solely for your own personal or internal business purposes; and (ii) access and use any APIs Hyperbolic makes available to you (if any) solely for your own personal or internal business purposes.
3. API Limitations. Company may limit: (i) the number of network calls that you may make via the API; (ii) the maximum file size; and (iii) anything else about the API that Hyperbolic deems appropriate in its sole discretion. Company may impose or modify these limitations without notice. In addition, Hyperbolic may utilize technical measures to prevent over-usage and stop usage of the API after any usage limitations are exceeded or suspend your access to the API with or without notice to you in the event you exceed such limitations.
4. Updates. You understand that the Services are evolving. As a result, Hyperbolic may require you to install updates to the Software that you have installed on the devices through which you access or use the Services ("Device"). You acknowledge and agree that Hyperbolic may update the Services with or without notifying you. You may need to update third-party software from time to time in order to continue to use the Service. Any future release, update or other addition to the Services shall be subject to this Agreement.
5. Text Message Services. Hyperbolic may offer one or more mobile message programs (collectively, the "Message Service") that allows users to receive SMS/MMS mobile messages by opting-in such as through online or application-based enrollment forms. Regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by this Agreement. We do not charge for the Message Service, but you are responsible for all charges and fees associated with mobile messaging imposed by your wireless carrier and you acknowledge that your carrier may charge you or deduct usage credit from your account when you text us or we send messages to you. Message and data rates may apply. By enrolling a telephone number in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the number you specify, and you represent that you are authorized to receive mobile messages at such number. The messages sent through the Message Service may include marketing communications and operational communications related to your use of the Services, including messages sent on behalf of Suppliers. You agree that these messages may be transmitted using an automatic telephone dialing system ("ATDS"), other automated systems for the selection or dialing of telephone numbers, or different technology. Your consent to receive mobile messages via an ATDS or other automated system for the selection or dialing of numbers is not required (directly or indirectly) as a condition of purchasing any property, goods or services. While you consent to receive messages sent using an ATDS, the foregoing shall not be interpreted to suggest or imply that any or all of our messages are sent using such a system. Message frequency varies. If you do not wish to continue participating in a Message Service program we offer, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message you receive from that program to opt out. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that that we and our service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those keyword commands set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out. To the extent you subscribe to more than one Message Service program that we operate, you must unsubscribe from each program separately. For Message Service support or assistance, text the HELP keyword in response to any message you receive through the Message Service or email us at [email protected]. Please note that the use of this email address is not an acceptable method of opting out of Message Service. Opt outs must be submitted in accordance with the procedures set forth above. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we are not responsible for honoring requests made in such messages. The Message Service may not be available in all areas or supported by all carriers or all devices. Check with your carrier for details. Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you decide to change your mobile phone number, you agree to first opt out of each Message Service program in which your number is enrolled. For clarity, you acknowledge and agree that any disputes between you and us related to the Message Service will be governed by Section 20 (Arbitration Agreement).
REGISTRATION.
1. Registering Your Account. In order to access certain features of the Services, you may be required to register an account on the Services ("Account") or have a valid account on a Third-Party Service (defined below) through which you can connect to the Services, as permitted by the Services (each such account, a "Third-Party Account").
2. Access Through a Third-Party Service. The Service may allow you to link your Account with a Third-Party Account by allowing Hyperbolic to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Hyperbolic and/or grant Hyperbolic access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Hyperbolic to pay any fees or making Hyperbolic subject to any usage limitations imposed by such third-party service providers. By granting Hyperbolic access to any Third-Party Account, you understand that Hyperbolic may access, make available and store (if applicable) any information, data, text, software, tags and/or other materials that you have provided to and stored in your Third-Party Account ("Third-Party Service Content") so that it is available on and through the Services. Unless otherwise specified in this Agreement, all Third-Party Service Content is considered to be Your Content for all purposes of this Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. If a Third-Party Account or associated service becomes unavailable, or Hyperbolic's access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Service Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the "Settings" section of the Services. YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND HYPERBOLIC DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Hyperbolic makes no effort to review any Third-Party Service Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Hyperbolic is not responsible for any Third-Party Service Content.
3. Registration Data. In registering an Account on the Services, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the "Registration Data"), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete.
4. Eligibility. When you use the Services, you represent and warrant that none of: (i) you; (ii) any affiliate of any entity on behalf of which you are entering into this Agreement; (iii) any other person having a beneficial interest in any entity on behalf of which you are entering into this Agreement (or in any affiliate thereof); or (iv) any person for whom you are acting as agent or nominee in connection with this Agreement is: (A) a country, territory, entity or individual named on an OFAC list as provided at http://www.treas.gov/ofac, or any person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; or (B) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure.
5. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Hyperbolic. Furthermore, you are responsible for all activities that occur under your Account. You shall monitor your Account to prohibit use by minors. You may not share your Account or password with anyone, and you agree to notify Hyperbolic immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, incomplete or not current, or Hyperbolic has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete or not current, Hyperbolic has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Services if you have been previously removed by Hyperbolic, or if you have been previously banned from any of the Services.
6. Admin Portal. Hyperbolic may make an administrative portal available to you in connection with your use of the Services ("Admin Portal"). Hyperbolic may furnish you with one or more access codes for use on the Admin Portal ("Access Codes"). You shall be responsible for the confidentiality and use of such Access Codes and shall immediately notify Hyperbolic if there has been an unauthorized release, use or other compromise of any Access Code. In addition, you agree that you shall keep confidential and not distribute any information or other materials made available by or through the Admin Portal. You shall be solely responsible for all use of the Admin Portal, and Hyperbolic shall be entitled to rely on your uses of and submissions to the Admin Portal as authorized by you. Hyperbolic shall not be liable for any loss, cost, expense or other liability arising out of your use of the Admin Portal or any information on the Admin Portal. Hyperbolic may change or discontinue the Admin Portal, or your right to use the Admin Portal, at any time. Additional terms and policies may apply to your use of the Admin Portal. These terms and policies will be posted on the Admin Portal.
7. Necessary Equipment and Software. You must provide all Devices and other equipment or software (excluding Software) necessary to access or use the Services. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Services.
RESPONSIBILITY FOR CONTENT
1. Types of Content. You acknowledge that any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services (collectively, "Content"), is the sole responsibility of the party from whom such Content originated. This means that you, and not Hyperbolic, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available ("Make Available") through the Services, including the Third-Party Service Content ("Your Content"), and that other users of the Services, and not Hyperbolic, are similarly responsible for all Content that they Make Available through the Services ("User Content").
Storage. Unless expressly agreed to by Hyperbolic in writing elsewhere, Hyperbolic has no obligation to store any of Your Content. Hyperbolic 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 the Services. Certain features and functionality of the Services may enable you to specify the level at which the Services restricts access to Your Content. In such cases, you are solely responsible for applying the appropriate level of access to Your Content. If you do not choose a level of access, the system may default to its most permissive setting. You agree that Hyperbolic retains the right to create reasonable limits on Hyperbolic's use and storage of Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Services and as otherwise determined by Hyperbolic in its sole discretion.
OWNERSHIP.
1. The Service. Except with respect to Your Content, you agree that Hyperbolic and its suppliers or licensors own all rights, title and interest in the Services (including but not limited to, any computer code, themes, concepts, methods of operation, moral rights, documentation, and Software). You shall not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
2. Trademarks. "Hyperbolic" and all related stylizations, graphics, logos, service marks and trade names used on or with the Services are the trademarks of Hyperbolic and may not be used without permission in connection with your, or any third-party's, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
3. Your Content. Hyperbolic does not claim ownership of Your Content. However, when you Make Available any Content on or to the Services, you represent that you own and/or have sufficient rights to Your Content to grant the license set forth in Section 6.4 (License to Your Content).
4. License to Your Content. Subject to any applicable Account settings that you select, you grant Hyperbolic a non-exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, publicly display and derive revenue or other remuneration from Your Content (in whole or in part) for the purposes of operating, improving, and providing the Services to you and to our other users. Please remember that other users may be able to search for, see, use, modify and/or reproduce any of Your Content that you submit to any area of the Services that is accessible by other users.
5. User Inputs and Outputs. The Services utilize software and technology including artificial intelligence to process user inputs to the Services, such as text prompts and inputs (the "Input," which is part of Your Content hereunder), and generate and return outputs based on such Inputs (the "Output"). Hyperbolic does not claim ownership of any of your Inputs or Outputs. For the avoidance of doubt, Hyperbolic does not use any of your User Content, including Inputs or Outputs, to train any generative artificial intelligence models.
6. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Hyperbolic through its suggestion, feedback, forum, or similar pages ("Feedback") is at your own risk and that Hyperbolic has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Hyperbolic a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully 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 in any manner, any and all Feedback, and to freely transfer and sublicense all of the foregoing rights, in connection with the operation and maintenance of the Services and/or Hyperbolic's business.
USER CONDUCT AND RESTRICTIONS. As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Services or any other portion of the Services (including images, text, page layout or form) without Hyperbolic's prior written consent; (iii) use any metatags or other "hidden text" using Hyperbolic's name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) 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 Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services 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); (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (vii) impersonate any person or entity, including any employee or representative of Hyperbolic; (viii) interfere with or attempts to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, "flooding," "spamming," "mail bombing," or "crashing" the Services; or (ix) take any action or Make Available any Content on or through the Services that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (B) constitutes unauthorized or unsolicited advertising, junk or bulk email; or (C) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Hyperbolic's prior written consent. You may not post or Make Available a photograph of another person without that person's permission. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this section. Any unauthorized use of the Services terminates the licenses granted by Hyperbolic pursuant to this Agreement.
INVESTIGATIONS, MONITORING, & NO OBLIGATION TO PRE-SCREEN CONTENT. Hyperbolic may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services and/or Content, including Your Content and User Content, at any time. 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 limitation chat, text, or voice communications. Without limiting the foregoing, Hyperbolic reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Hyperbolic; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Services or if Hyperbolic otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. Upon determination of any possible violations by you of any provision of this Agreement, Hyperbolic, may, at its sole discretion immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you. If Hyperbolic believes that criminal activity has occurred, Hyperbolic reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Services, including Your Content, in Hyperbolic's possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce this Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property, or personal safety of Hyperbolic, its users or the public, and all enforcement or other government officials, as Hyperbolic in its sole discretion believes to be necessary or appropriate.
INTERACTIONS WITH OTHER USERS.
1. User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Hyperbolic reserves the right, but has no obligation, to intercede in any disputes between Users. You agree that Hyperbolic will not be responsible for any liability incurred as the result of such interactions between you and other Users.
2. Content Provided by Other Users. Services may contain User Content provided by other Users. Hyperbolic is not responsible for and does not control User Content. Hyperbolic has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Users at your own risk.
3. Subverting the Services. The value of the Services rests in its thriving marketplace for Buyers and Suppliers. It is a material breach of this Agreement to arrange for the sale of Supplier Services from, or the payment of fees to, Suppliers outside the Services for the purposes of circumventing the obligation to pay Hyperbolic's fee for Supplier Services purchased through the Services.
FEES AND PAYMENT POLICY.
1. Fees. Hyperbolic charges fees in connection with your use of the Services, as further set forth on the Website ("Fee(s)"). We may change our Fees from time to time by updating the Website. The new Fee(s) will apply to any Supplier Contract entered into or payment for Supplier Services made on or through the Services after the updated Fee schedule is posted. All payments under Supplier Contracts must be made through the Services. The Fee for the Services is deducted from the purchase price paid by the Buyer for the applicable Supplier Services, with the remainder remitted to the Supplier. You understand and agree that the Hyperbolic itself does not process the transmission of funds and thus it is not a separate and discrete service that Hyperbolic provides in addition to the Services.
2. Third-Party Payments Provider. Hyperbolic uses Stripe, Inc. and its affiliates as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) ("Payment Service Provider"). If you purchase or sell Supplier Services, you will be required to provide your payment details and any additional information required to complete your order directly to our Payment Service Provider. You agree to be bound by Stripe's Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/ssa), or Stripe Connected Account Agreement, as applicable, and hereby consent and authorize Hyperbolic and Stripe to share any information and payment instructions you provide with one or more Payment Service Provider(s) to the minimum extent required to complete your transactions. Please note that online payment transactions may be subject to validation checks by our Payment Service Provider and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our Payment Service Provider uses various fraud prevention protocols and industry-standard verification systems to reduce fraud, and you authorize it to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our Payment Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
3. Payment by Buyers. You shall pay all Fees in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable. By providing Hyperbolic and/or our Payment Service Provider with your payment information, you agree that Hyperbolic and/or our Payment Service Provider is authorized to immediately invoice your Account for all Fees due and payable to Hyperbolic and any applicable Supplier hereunder and that no additional notice or consent is required.You shall immediately notify Hyperbolic of any change in your payment information to maintain its completeness and accuracy. Hyperbolic reserves the right at any time to change its prices and billing methods in its sole discretion. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Hyperbolic and/or our Payment Service Provider or our inability to collect payment constitutes your material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Services, and any prepayment of credits for Supplier Services, are non-refundable. Except as set forth in any Supplier Contract, all fees for the Supplier Services are non-refundable.
4. Refunds. Hyperbolic has no obligation to provide refunds or credits.
5. Taxes. The Fees do not include any Sales Tax (defined below) that may be due in connection with the Services provided under this Agreement. If Hyperbolic determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Hyperbolic shall collect such Sales Tax in addition to the Fees. If any Services, or payments for any Services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Hyperbolic, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall indemnify Hyperbolic for any liability or expense Hyperbolic may incur in connection with such Sales Taxes. Upon Hyperbolic's request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, "Sales Tax" means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. You shall make all payments of Fees to Hyperbolic free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to Hyperbolic shall be your sole responsibility, and you shall provide Hyperbolic with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
6. Promotions. Any free trial or other promotion ("Promotion") that provides preferential Fee rates of any sort must be used within the specified time of the Promotion. At the end of the Promotion period, your use of the applicable Services or other preferential access will expire and any further use of the Services on such preferential terms is prohibited unless you pay the then-current applicable Fees.
Settlement to Suppliers.
1. Service Fees. Hyperbolic may charge fees to Suppliers for use of the Services ("Service Fees"), which may include transaction fees when a Buyer purchases any Supplier Services. The Service Fees may include certain other charges, including without limitation taxes that Hyperbolic is legally required to collect, processing fees, and fulfillment fees. If you are a Supplier, Service Fees will be separately indicated either (i) at the time you connect to the Services to offer Supplier Services, or (ii) in a separate written agreement between you and Hyperbolic (a "Preferred Supplier Agreement"). Service Fees may fluctuate based on the type of Supplier Services you offer, and other factors. You are responsible for paying any Service Fees that you owe to Hyperbolic. Service Fees are non-refundable. Buyers contract directly with Suppliers for the purchase of Supplier Services. Suppliers are solely responsible for setting the prices for Supplier Services. Hyperbolic facilitates these sales by hosting the Services and by facilitating the exchange as described below. All Supplier Services must be purchased and payments must be made through the Website. Hyperbolic's Service Fee for each purchase through the Services is deducted from the amount that the Buyer pays, as described in Section 2.1, with the remainder remitted to the Supplier. You understand and agree that Hyperbolic itself does not process the transmission of funds and thus it is not a separate and discrete service that Hyperbolic provides in addition to the Services. Hyperbolic may, in its sole discretion, cancel a purchase, or may limit quantities, of Supplier Services, as reasonably deemed necessary, to comply with applicable law or to respond to a case of misrepresentation, fraud or known or potential violations of the law or this Agreement. Refunds for cancelled orders may be issued where appropriate. Hyperbolic does not make any guarantees about pricing errors and reserves the right, in its sole discretion, to not process or to cancel any order for Supplier Services, including, without limitation, if the price was incorrectly posted on the Website. If this occurs, Hyperbolic will attempt to notify you.
2. Payment to Suppliers. Hyperbolic will pay the Supplier the full value received by Hyperbolic for Supplier Services, less any Service Fees, within thirty (30) days of the provision of such Supplier Services.
3. Supplier Taxes. Unless otherwise stated on the Services, the amounts paid by Buyers do not include any Sales Tax that may be due in connection with any Services. If Hyperbolic determines it has a legal obligation to collect Sales Tax, Hyperbolic shall collect such Sales Tax in addition to the amounts required under this Agreement or your Preferred Supplier Agreement. If any Supplier Services, or payments for any Services under the Agreement are subject to Sales Tax in any jurisdiction and the applicable Sales Tax has not been remitted to Hyperbolic, then you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Hyperbolic for any liability or expense that Hyperbolic may incur in connection with such Sales Tax. Upon Hyperbolic's request, you will provide it with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicable taxes.
RELEASE. 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 Hyperbolic Party or for such party's fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder.
Indemnification. You agree to indemnify and hold Hyperbolic, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a "Hyperbolic Party" and collectively, the "Hyperbolic Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; (e) any Supplier Contract; (f) your use of or inability to use any Supplier Services; or (g) your violation of any applicable laws, rules or regulations. Hyperbolic reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Hyperbolic in asserting any available defenses. This provision does not require you to indemnify any of the Hyperbolic Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Services.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. HYPERBOLIC PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE OR SERVICES.
  1. HYPERBOLIC PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE SERVICES, AND OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL.
  2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SERVICES, INCLUDING SUPPLIER SERVICES, 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 SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
  3. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. HYPERBOLIC MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
  4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HYPERBOLIC OR THROUGH SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
  5. From time to time, Hyperbolic may offer new "beta" features or 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 Hyperbolic's sole discretion. The provisions of this section apply with full force to such features or tools.
2. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT HYPERBOLIC PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD HYPERBOLIC PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
  1. Hyperbolic makes no warranty that the Supplier Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Hyperbolic makes no warranty regarding the quality of any such Supplier Services, or the accuracy, timeliness, truthfulness, completeness or reliability of any User content obtained through the Services.
  2. We are not involved in the actual transaction between Buyers and Suppliers. While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the quality, safety or legality of Supplier Services advertised, the truth or accuracy of Users' content or listings, the ability of Suppliers to sell Supplier Services, the ability of Buyers to pay for Supplier Services, or that Buyer or Supplier will actually complete a transaction.
  3. Further, we cannot guarantee continuous or secure access to the Services and operation of the Services may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions.
3. No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF SERVICES. YOU UNDERSTAND THAT HYPERBOLIC DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF SERVICES. HYPERBOLIC MAKES NO WARRANTY THAT THE SUPPLIER SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. HYPERBOLIC MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SUPPLIER SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH SERVICES.
4. Regulatory and Legal Changes. The parties acknowledge that the respective rights and obligations of each party as set forth in this Agreement upon its execution are based on law and the regulatory environment as it exists on the date of execution of this Agreement. Hyperbolic may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change affects Hyperbolic's ability to provide the Services.
5. Third-Party Materials. As a part of Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Hyperbolic to monitor such materials and that you access these materials at your own risk.
LIMITATION OF LIABILITY.
1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL HYPERBOLIC PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT HYPERBOLIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY SUPPLIER SERVICES, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SERVICES; OR (e) ANY OTHER MATTER RELATED TO SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A HYPERBOLIC PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A HYPERBOLIC PARTY'S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A HYPERBOLIC PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
2. Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, HYPERBOLIC PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO Hyperbolic by you during the one-month period prior to the act, omission or occurrence giving rise to such liability; (b) $100; or (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A HYPERBOLIC PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A HYPERBOLIC PARTY'S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A HYPERBOLIC PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
3. User Content. EXCEPT FOR HYPERBOLIC'S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE HYPERBOLIC'S PRIVACY POLICY, HYPERBOLIC ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
4. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HYPERBOLIC AND YOU.
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Hyperbolic's policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Hyperbolic by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for Hyperbolic's Copyright Agent for notice of claims of copyright infringement is as follows: 400 Spectrum Center Drive, suite 1900, Irvine, CA, 92618.
POINTS PROGRAM.
1. Subject to your ongoing compliance with this Agreement and any Points Program Terms (defined below) made available by Hyperbolic from time to time, Hyperbolic may enable you to participate in a limited program that rewards Users for using or interacting with the Services (the "Points Program") by allocating such Users with digital assets that bear no cash or monetary value and are made available by Hyperbolic ("Points", as further described below). Your participation in the Points Program constitutes your acceptance of the then-current terms and conditions applicable to the Points Program at the time of such participation (the "Points Program Terms"), as may be modified or updated by Hyperbolic in its sole discretion. Additional terms applicable to the Points Program, which shall constitute part of the Points Program Terms, may be set forth on the Services from time to time.
2. Eligibility. To be eligible to participate in the Points Program you must accept the terms of this Agreement, make Supplier Services available through the Services, and accept the Points Program Terms.
3. Points. Points will be allocated in accordance with the then-current Points Program Terms and any applicable Supplemental Terms. Hyperbolic does not guarantee that you will receive or be eligible to receive any minimum amount of Points by participating in the Points Program. Points have no monetary value and cannot be redeemed for cash or cash equivalent, including any cryptocurrency. Accumulating Points does not entitle you to any vested rights, and Hyperbolic does not guarantee in any way the continued availability of Points. POINTS HAVE NO CASH VALUE. POINTS ARE MADE AVAILABLE "AS IS" AND WITHOUT WARRANTY OF ANY KIND.
4. Taxes. In the event that any applicable authority determines that your receipt of Points is a taxable event, you agree that you, and not Hyperbolic, are solely liable for payment of such taxes, and you agree to indemnify Hyperbolic in connection with same.
5. Disclaimers. Points are provided solely as an optional enhancement to users to incentivize participation in our community. Points do not constitute compensation or any other form of consideration for services. You agree that Points may be cancelled or revoked by Hyperbolic at any time, including if you breach this Agreement; misuse or abuse the Points Program; or commit or participate in any fraudulent activity related to the Points Program. HYPERBOLIC RESERVES THE RIGHT TO MODIFY OR TERMINATE THE POINTS PROGRAM AT ANY TIME, FOR ANY OR FOR NO REASON, WITH OR WITHOUT NOTICE TO YOU. In the event of any termination, all Points will expire immediately as of the effective date of termination.
TERM AND TERMINATION.
1. Term. The Agreement commences on the date when you accept these Terms of Service (as described in the preamble above) and remain in full force and effect while you use any Services or Supplier Services, unless terminated earlier in accordance with the Agreement.
2. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and that the Agreement will remain in full force and effect while you use any Services and/or any Supplier Services, unless earlier terminated in accordance with the Agreement.
3. No Subsequent Registration. If your registration(s) with, or ability to access, the Services is discontinued by Hyperbolic for any or for no reason, you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for Fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Hyperbolic reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
SERVICES MADE AVAILABLE FROM THE US ONLY. TheServices can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Hyperbolic intends to announce such Services or Content in your country. The Services are controlled and offered by Hyperbolic from its facilities in the United States of America. Hyperbolic makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are solely responsible for compliance with local law.
DISPUTE RESOLUTION. Please read this Section 20 (the "Arbitration Agreement") carefully. It is part of your contract with Hyperbolic and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement (including Section 20.2, which shall apply notwithstanding any laws or rules in your jurisdiction that may prohibit mandatory or compelled arbitration), you and Hyperbolic agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a "Dispute") will be resolved by binding arbitration, rather than in court, except that: (1) you and Hyperbolic may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Hyperbolic 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 this Agreement.
2. Informal Dispute Resolution. There might be instances when a Dispute arises between you and Hyperbolic. If that occurs, Hyperbolic is committed to working with you to reach a reasonable resolution. You and Hyperbolic agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Hyperbolic therefore agree that before either party commences arbitration against the other (or initiates an action 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 will also 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. Notice to Hyperbolic that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to the contact information set forth below. The Notice must include: (1) your name, telephone number, mailing address, and e‐mail address; (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.
3. Waiver of Jury Trial. YOU AND HYPERBOLIC 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 Hyperbolic 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.
4. Waiver of Class and Other Non-Individualized Relief. YOU AND HYPERBOLIC AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 20.9, 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 Subsection 20.9. 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 20.4 are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Hyperbolic 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 courts of California, sitting in Los Angeles. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Hyperbolic from participating in a class-wide settlement of claims.
5. Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Hyperbolic agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association ("AAA"), in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. 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 (if applicable); (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 Conference 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 Hyperbolic otherwise agree, or the Batch Arbitration process discussed in subsection 20.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and Hyperbolic 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.
6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in California and will be selected by the parties from the AAA's 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 the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 20.9 is triggered, the AAA will appoint the arbitrator for each batch.
7. 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 Subsection 20.4, including any claim that all or part of Subsection 20.4 is unenforceable, illegal, void or voidable, or that Subsection 20.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Subsection 20.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (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 a court 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 Subsection 20.9. 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.
8. 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 Hyperbolic 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 Conference process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys' fees and costs.
9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Hyperbolic agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Hyperbolic by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left 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 the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the 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 Hyperbolic. You and Hyperbolic agree to cooperate in good faith with the AAA 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 forth in this provision.
10. 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 the address set forth below, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, email address, 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 this Agreement 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.
11. Invalidity, Expiration. Except as provided in Subsection 20.4, 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 Hyperbolic 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.
12. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Hyperbolic 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 become effective by writing to Hyperbolic at the address set forth below, your continued use of the Services, including the acceptance of products and services offered on 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 this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, 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, or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Hyperbolic will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
13. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
14. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Hyperbolic.
THIRD-PARTY SERVICES.
1. Third-Party Websites, Applications and Ads. Certain features of the Services may rely on third-party websites, services, technology, or applications accessible or otherwise connected to the Services but not provided by Hyperbolic, (each, a "Third-Party Service" and, collectively, "Third-Party Services"). Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that (i) Hyperbolic shall not be liable for any damages, liabilities, or other harms in connection with your use of and/or any inability to access the Third-Party Services; and (ii) Hyperbolic shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions or loss of data occurring directly or indirectly by reason of Third-Party Services or any other circumstances beyond Hyperbolic's control. When you use Third-Party Services, you may be subject to additional terms with respect to such use, including without limitation the privacy policies of such Third-Party Services. You use all Third-Party Services at your own risk, and we encourage you to investigate Third-Party Services prior to use.
2. Third-Party Application Access. With respect to any Application accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"), you shall only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple's Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to any Application 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 Application on a shared basis within your designated family group.
3. Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
  1. You acknowledge and agree that (i) this Agreement is concluded between you and Hyperbolic only, and not Apple, and (ii) Hyperbolic, 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 Terms of Service.
  2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
  3. 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 Hyperbolic 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 Hyperbolic.
  4. You and Hyperbolic acknowledge that, as between Hyperbolic and Apple, Apple is not responsible for addressing any claims you have or 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.
  5. You and Hyperbolic 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 Hyperbolic and Apple, Hyperbolic, 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 this Agreement.
  6. You and Hyperbolic acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
  7. Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
GENERAL PROVISIONS.
1. Electronic Communications. The communications between you and Hyperbolic may take place via electronic means, whether you visit Services or send Hyperbolic e-mails, or whether Hyperbolic posts notices on Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Hyperbolic in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Hyperbolic provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. 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").
2. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Hyperbolic's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
3. Force Majeure. Hyperbolic shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, pandemic, epidemic, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
4. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us at: [email protected]. 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.
5. Limitation Period. IF YOU USE THE SERVICES AS A SUPPLIER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW YOU AND HYPERBOLIC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT, SERVICES, OR SUPPLIER SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
6. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Hyperbolic 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 Los Angeles, California.
7. Governing Law and Jurisdiction. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, 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.
8. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
9. Notice. Where Hyperbolic requires that you provide an e-mail address, you are responsible for providing Hyperbolic with your most current e-mail address. In the event that the last e-mail address you provided to Hyperbolic is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Hyperbolic's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Hyperbolic at the following address: 400 Spectrum Center Drive, Suite 1900, Irvine, CA, 92618. Such notice shall be deemed given when received by Hyperbolic by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
10. Waiver. 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.
11. Severability. 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.
12. Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services 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 List or Entity List. By using Services, you represent and warrant that (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Services 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 Hyperbolic are 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 Hyperbolic products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13. 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 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
14. Entire Agreement. The Agreement is the 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.

Terms of Use Agreement

TERMS OF SERVICE

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