Terms of Service
Mogimo, Inc. DBA HYPR
Effective Date: July 15, 2019 Acceptance of Terms.
a. HYPR provides its Service (as defined below) to You through its web site located at http://www.hyprbrands.com/ (the “Site”), subject to this TOS and the terms of Your Services Agreement. As used herein, the “Services Agreement” shall mean either (i) the Services Agreement manually executed between You and HYPR; or (ii) the Influencer Marketing Accelerator Program terms described at https://hyprbrands.com/resources/hypr-accelerator-program/. By accepting this TOS or by accessing or using the Service or Site, You acknowledge that You have read, understood, and agree to be bound by this TOS. In the event of a conflict of terms between this TOS and your Services Agreement, the terms of your Services Agreement shall govern your relationship solely with respect to any such conflicting terms. If You are entering into this Agreement on behalf of a company, business or other legal entity, You represent that You have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with this TOS, You must not accept this TOS and may not use the Service. As part of the registration process, You will identify one or more administrative user names and passwords for Your account (“Account”).
b. HYPR may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your Account or by posting a notice on the Site. You can review the most current version of this TOS at any time at http://hyprbrands.com/terms-of-service/. The revised terms and conditions will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If You are subject to a Services Agreement and You do not consent to any changes to the TOS, you may, within 30 days or learning of such change (or logging into your Account), request a copy of the TOS which was in place at the time of entering your Services Agreement and the parties shall honor the terms of such prior version of the TOS. 2. Description of Service.
The “Service” is an online platform and API portal which provide access to profiles and audience demographic information for social influencers across major social channels. The Service includes access to HYPR content and data (“HYPR Content”) such as reports, graphs and other presentations of data, as well as access to content and data that is not generated or maintained by HYPR (“Third Party Data”). Notwithstanding anything to the contrary contained in this TOS or any Services Agreement, HYPR undertakes no representations or warranties with respect to Third Party Data. Any new features added to or augmenting the Service are also subject to this TOS. 3. General Conditions/ Access and Use of the Service.
a. Subject to the terms and conditions of this TOS, You may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to HYPR. Unless otherwise indicated in Your Services Agreement, You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; including without limitation, the development of a competing platform or access point for use or access to HYPR Intellectual Property Rights or the Third Party Data, (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks, (d) store on any network, hard drive, computer or cloud-storage any HYPR Intellectual Property Rights, HYPR Content or Third Party Data or other information obtained from the Services or the Site for any period of more than 3 days after termination or expiration of this Agreement, or (e) monitor, copy, scan, review, index, mirror, ping or validate the Service via robot, spider, other automatic software or device, process, approach or methodology, manual or otherwise (including but not limited to by using any web scraping, data harvesting, or data extraction methods). You shall comply with any reasonable codes of conduct, policies or other notices HYPR provides You or publishes in connection with the Service, and You shall promptly notify HYPR if You learn of a security breach related to the Service.
b. Any software that may be made available by HYPR in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to access the Service by any means other than through the interface that is provided by HYPR for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of HYPR or any third party is granted to You in connection with the Service. HYPR reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) for any reason at all.
c. You are responsible for maintaining the confidentiality of Your login, password and account and for all activities that occur under Your login or account. While HYPR takes reasonable precautions with respect to any information that you provide to us, You are solely responsible for any data, content, or other information or materials You provide to HYPR (“Your Content”), including but not limited Your compliance with any applicable laws, rules, or regulations with respect to Your Content. By using the Service and providing Your Content to us, You understand and agree that Your Content may be shared with other users of Service. Except as otherwise provided in this Agreement, You retain ownership of Your Content that you provide to us through the Services. HYPR reserves the right to access Your Account in order to respond to Your requests for technical support and to investigate suspicious activity.
d. You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to HYPR’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, You acknowledge that You bear sole responsibility for adequate security, protection and backup of Your Content. HYPR will have no liability to You for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content. The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. HYPR has no control over such sites and resources and HYPR is not responsible for anything contained therein or any result from use thereof. You further acknowledge and agree that HYPR will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings You have with third parties found while using the Service are between You and the third party, and You agree that HYPR is not liable for any loss or claim that You may have against any such third party.
e. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in HYPR’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, Your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Your Account or the Equipment with or without Your knowledge or consent.
f. The failure of HYPR to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between You and HYPR, even though it is electronic and is not physically signed by You and HYPR, and it governs Your use of the Service.
g. HYPR reserves the right to use Your name and/or Your business name as a reference for marketing or promotional purposes on HYPR’s website and in other communication with existing or potential HYPR customers. You further agree that You will place the HYPR logo or company name in a visible spot on Your website homepage and anyplace where HYPR Content or Third Party Data is displayed, unless otherwise agreed by separate agreement. Unless otherwise provided in a separate agreement, HYPR reserves the right to terminate Your access to the Services for violation of this section.
h. You acknowledge that HYPR may establish general practices and limits concerning use of the Service, including without limitation the maximum storage space that will be allotted on HYPR’s servers on Your behalf. You agree that HYPR has no responsibility or liability for the deletion or failure to store any content maintained or obtained by the Service.
i. The Service includes certain services that are available via a mobile device, including the ability to browse the Service and the Site from a mobile device and the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent You access the Service through a mobile device, Your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by Your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, You agree that We may communicate with You regarding HYPR and other entities by SMS, MMS, text message or other electronic means to Your mobile device and that certain information about Your usage of the Mobile Services may be communicated to us.
j. The Services contain Third Party Data aggregated by HYPR from multiple sources. However, the nature of the Third Party Data and the collection processes limits the ability to independently verify and/or validate the Third Party Data and all Third Party Data is subject to change at any time without notice. Neither HYPR nor its Third Party Data sources warrant the comprehensiveness, completeness, accuracy or adequacy of the Third Party Data for any purpose. HYPR, its sources and their directors, employees, contractors, and agents disclaim all warranties, expressed or implied, as to any matter whatsoever and shall not be responsible for any loss or damage that may directly or indirectly arise as the result of the use of the Third Party Data contained in the Service.
4. Your Services Agreement shall govern Your payment plan and provide HYPR with information regarding Your credit card or other payment instrument. You represent and warrant to HYPR that such information is true and that You are authorized to use the payment instrument. You will promptly update Your account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. You agree to pay HYPR the amount that is specified in the Services Agreement and payment plan in accordance with the terms of such plan and this Agreement. Unless otherwise indicated in a Services Agreement, You hereby authorize HYPR to bill Your payment instrument in advance on a periodic basis in accordance with the terms of the applicable services agreement and payment plan until You terminate Your account, and You further agree to pay any charges so incurred. If You dispute any charges You must let HYPR know within sixty (60) days after the date that HYPR invoices you. HYPR may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by HYPR thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on HYPR’s net income. In the event You fail to timely pay any amounts due under this Agreement, or if You otherwise breach this Agreement: (i) HYPR reserves the right in its sole discretion to temporarily or permanently terminate your access to the Services; (ii) Your Discount, if any, shall immediately terminate and Your Subscription Fee shall immediately increase to the full amount indicated in the Services Agreement (the “Full Price Subscription Fee”); and (iii) the entire amount of the Full Price Subscription Fee for the Term shall immediately and automatically accelerate and become due and owing. In the event of such acceleration, HYPR reserves the right to collect such amounts through third-party collections or other proper means, and You agree to pay for any costs of such collections activity.
5. From time to time, HYPR may offer trial access to the Services for first time users of the Site (the “Trial”) for some period of time. The Trial is strictly for use by first-time users to test the product and cannot be used for commercial purposes. At the end of the Trial, you will no longer have access to any data or account details and HYPR may terminate the Trial at any time with or without notice to you. Attempts to manipulate the Trial for commercial use by signing up under different account names or email addresses will be flagged and removed. Generating reports, derivative data or other presentations to third parties for commercial gain during any Trial period is a serious violation of HYPR’s intellectual property rights and will subject the violator to fines and potential legal action. IN THE EVENT YOU VIOLATE THIS SECTION, YOU AGREE TO PAY HYPR AN AMOUNT EQUAL TO $5,000 PER OCCURRENCE (THE “LIQUIDATED DAMAGES”). THE PARTIES INTEND THAT THE LIQUIDATED DAMAGES CONSTITUTE COMPENSATION FOR OBTAINING PROPRIETARY DATA WHICH IS OTHERWISE ONLY AVAILABLE FOR PURCHASE, AND NOT A PENALTY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE HARM CAUSED BY YOUR BREACH WOULD BE IMPOSSIBLE OR VERY DIFFICULT TO ACCURATELY ESTIMATE AT THE TIME OF CONTRACT, AND THAT THE LIQUIDATED DAMAGES ARE A REASONABLE ESTIMATE OF THE ANTICIPATED OR ACTUAL HARM THAT MIGHT ARISE FROM YOUR BREACH. YOUR PAYMENT OF THE LIQUIDATED DAMAGES IS YOUR SOLE LIABILITY AND ENTIRE OBLIGATION AND HYPR’S EXCLUSIVE REMEDY FOR YOUR BREACH OF THIS SECTION. 6. Representations and Warranties.
You represent and warrant to HYPR that (i) You have full power and authority to enter into this TOS and the Services Agreement; (ii) You own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in Your posting and other activities (and allow HYPR to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and HYPR’s exercise of all rights and license granted by You herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) You are eighteen (18) years of age or older.
a. Except as set forth herein, You may not terminate Your account within the Term. You may terminate this Agreement on sixty (60) days written notice to HYPR if any of the following events occur:
b, upon the bankruptcy or insolvency of HYPR, or the filing against HYPR of a petition in bankruptcy, or the making of an assignment for the benefit of creditors by HYPR, or the appointment of a receiver or trustee for HYPR or any of the assets of HYPR, or the institution by or against HYPR of any other type of insolvency proceeding;
c. HYPR permanently ceases to offer the Services in their entirety; or
d. HYPR is in Material Breach (as defined herein) of this Agreement. “Material Breach” shall mean a complete outage of the Service for more than ten (10) consecutive business days.In addition to any other remedies HYPR may have, HYPR may terminate Your Account and this Agreement:
e. At any time by providing thirty (30) days prior notice to the administrative email address associated with Your Account;
f. Immediately with or without notice to You if You breach any of the terms or conditions of this TOS. HYPR reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) for any reason at all and may do so without notice in case of your breach of the TOS or any other agreement between you and HYPR. All of Your Content on the Service (if any) may be permanently deleted by HYPR upon any termination of your account in its sole discretion.
h. If HYPR terminates Your account pursuant to Section 7(b)(i), HYPR will refund the pro-rated, unearned portion of any amount that You have prepaid to HYPR for such Service.
i. If HYPR terminates Your account pursuant to Section 7(b)(ii), HYPR may in its sole discretion retain any unearned portion of any amount that You have prepaid to HYPR for such Service, in addition to any other remedies HYPR may have.
j. All of HYPR’s accrued rights to payment shall survive termination of this TOS.
k. Upon termination or expiration of this Agreement, You agree that You will delete any and all HYPR Intellectual Property Rights and Third Party Data obtained from the Services within a reasonable period of time, not to exceed 3 days. For the avoidance of doubt, unauthorized storage or access to HYPR Intellectual Property Rights or Third Party Data following termination of a subscription or trial period is a violation of this Agreement.
8. DISCLAIMER OF WARRANTIES.
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by HYPR or by third-party providers, or because of other causes beyond HYPR’s reasonable control. HOWEVER, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND HYPR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT HYPR DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM HYPR OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL HYPR BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES (INCLUDING ATTORNEYS’ FEES) IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS AND THE SERVICES AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS AND THE SERVICES AGREEMENT. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, HYPR’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10. Subject to Section 9 herein (Limitation of Liability), each Party (the “Indemnifying Party”) shall defend, indemnify, and hold harmless the other Party (the “Indemnified Party”) from and against any third-party claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from the Indemnifying Party’s breach of this Agreement. The Indemnified Party shall provide notice to the Indemnifying Party of any such claim, suit or demand. The Indemnifying Party reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, the Indemnified Party agrees to cooperate with any reasonable requests assisting the Indemnifying Party’s defense of such matter.
11. S. Government Matters.
You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by HYPR on Your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
12. Intellectual Property.
a. You acknowledge and agree that the copyright, trademark, trade secrets and any other intellectual property rights arising out of or related to the Services, including but not limited to any rights arising out of the compilation and presentation of Third Party Data (the “HYPR Intellectual Property Rights”) is and shall remain with HYPR. You acknowledge that such HYPR Intellectual Property Rights, regardless of form or format, are proprietary to HYPR, including (a) works of original authorship such as compiled information containing HYPR’s selection, arrangement and coordination and expression of such information or pre-existing material it has created, gathered or assembled; (b) confidential or trade secret information; and (c) information that has been created, developed and maintained by HYPR at great expense of time and money such that misappropriation or unauthorized use by others for commercial gain would unfairly and irreparably harm HYPR. You shall not commit or permit any act or omission by Your agents, employees or any third party that would impair HYPR’s proprietary and intellectual property rights in HYPR Intellectual Property Rights. You agree to notify HYPR immediately upon obtaining any information regarding a threatened or actual infringement of HYPR’s rights.
b. You agree that any feedback or ideas You provide to HYPR regarding the Site, Service or any suggested improvements thereto (together, the “Feedback”) will be the exclusive property of HYPR. To the extent You own any rights in the Feedback, You hereby agree to, and hereby do, assign all right, title and interest in and to the Feedback to HYPR. You agree to perform all acts reasonably requested by HYPR to perfect and enforce such rights.13. Confidential Information.
a. The Parties shall treat all information, tangible and intangible, received in connection with this Agreement, including but not limited to either Party’s business, policies, procedures, plans, services, products, intellectual property, data, customers, suppliers, methods, research, inventions, ideas or property and any and all demographic and psychographic information, including information made available by either Party before the Effective Date of this Agreement (“Confidential Information”), as strictly confidential and proprietary information. Confidential Information shall not include information that either Party can demonstrate: (i) is already publicly known when it is received or which is subsequently made public by the disclosing Party; (ii) was independently developed by the receiving Party without reference to Confidential Information; or (iii) was known by the receiving Party prior to being received from the disclosing Party and which was not subject to an obligation of confidentiality.
b. The Parties shall, during the Term and for a period of 2 years from the termination or expiration of this Agreement: (i) protect and safeguard the confidentiality of the disclosing Party’s Confidential Information with at least the same degree of care as the receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person, except to the receiving Party’s employees and contractors who need to know the Confidential Information to assist the receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The receiving Party shall be responsible for any breach of this Section 13 caused by any of its employees or contractors. Each Party shall destroy all Confidential Information of the other Party immediately upon termination of this Agreement, including any notes, copies or other records containing or reflecting any Confidential Information.
14. Neither Party may assign this TOS or any Services Agreement without the prior written consent of the other Party; provided, however, that HYPR may assign or transfer this TOS, in whole or in part, without restriction and without Your prior consent, in the event of a change in control of HYPR, including but not limited to any merger, acquisition, or sale of all or substantially all of the assets of HYPR. 15. Social Networking Services.
16. If any provision of this TOS or the Services Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS or the Services Agreement will otherwise remain in effect and enforceable. Except with respect to any Services Agreements executed by the parties, both parties agree that this TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS or any Services Agreement and You do not have any authority of any kind to bind HYPR in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given once sent. 17. Governing Law.
This TOS and any Services Agreement shall be governed by the laws of the State of New York without regard to the principles of conflicts of law. Unless otherwise elected by HYPR in a particular instance, You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of New York for the purpose of resolving any dispute relating to Your access to or use of the Service.
18. To understand how HYPR collects and uses personal information, please visit: https://www.hyprbrands.com/privacy_policy/