Terms of Service
Last updated on: April 4th, 2016
Your Agreement with Hyper
1.1Your use of the Hyper service is governed by this agreement (the “Terms”). “Hyper” means HyperHQ, Inc., located at 25 Broadway, 9th Floor, New York, 10004, United States, and its subsidiaries or affiliates involved in providing the Hyper Service. The “Hyper Services” means the services Hyper makes available through this website, including this website, the Hyper cloud computing service, the Hyper API, the Hyper Add-ons, the Hyper Components, and any other software or services offered by Hyper in connection to any of those.1.2In order to use the Hyper Services, you must first agree to the Terms. You can agree to the Terms by actually using the Hyper Services. You understand and agree that Hyper will treat your use of the Hyper Services as acceptance of the Terms from that point onwards.1.3You may not use the Hyper Services if you are a person barred from receiving the Hyper Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Hyper Services. You affirm that you are over the age of 13, as the Hyper Services are not intended for children under 13.1.4You agree your purchases of Hyper Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Hyper or any of its affiliates regarding future functionality or features.
Your Account and Use of the Hyper Services
2.1You must provide accurate and complete registration information any time you register to use the Hyper Services. You are responsible for the security of your passwords, credentials and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Hyper immediately.2.2Your use of the Hyper Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.2.3You agree not to (a) access (or attempt to access) the administrative interface of the Hyper Services by any means other than through the interface that is provided by Hyper in connection with the Hyper Services, unless you have been specifically allowed to do so in a separate agreement with Hyper, or (b) engage in any activity that interferes with or disrupts the Hyper Services (or the servers and networks which are connected to the Service).2.4Your account has “hard” and “soft” usage limits, as further explained in the Quota & Limits. The Hyper Services does not permit you to exceed the hard usage limits. Hyper reserves the right to enforce soft usage limits in its sole discretion. Repeated exceeding of the hard or soft usage limits may lead to termination of your account.2.5You may use the Hyper Services only to develop and run applications on the Hyper infrastructure. You may not access the Hyper Services for the purpose of bringing an intellectual property infringement claim against Hyper or for the purpose of creating a product or service competitive with the Hyper Services.
Service Policies and Privacy
3.1You agree to comply with the Hyper Acceptable Use Policy (the “Acceptable Use Policy”) which is incorporated herein by this reference and which may be updated from time to time.3.2The Hyper Services shall be subject to the privacy policy for the Hyper Services available at privacy policy. You agree to the use of your data in accordance with Hyper’s privacy policies.3.3You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to Hyper.
Fees for Use of the Hyper Services
4.1Subject to the Terms, the Hyper Services is provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. The pricing for additional resources and services can be found at https://hyper.sh/pricing (or such URL as Hyper may provide).4.2For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in Hyper fees and payment policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees Hyper incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on Hyper’s measurements of your use of the Hyper Services, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Hyper and only in the form of credit for the Hyper Services. Nothing in these Terms obligates Hyper to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Hyper may be shared by Hyper with companies who work on Hyper’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Hyper and servicing your account. Hyper may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Hyper shall not be liable for any use or disclosure of such information by such third parties. Hyper reserves the right to discontinue the provision of the Hyper Services to you for any late payments.4.3Hyper may change its fees and payment policies for the Hyper Services by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL Hyper may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.4.4You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Hyper Services in a manner intended to avoid incurring fees.
Content on the Hyper Services and Take Down Obligations
5.1You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Hyper Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.” The term Content shall specifically exclude the web application that you create using the Hyper Services and any source code written by you to be used with the Hyper Services (collectively, “Applications”).5.2Hyper reserves the right (but shall have no obligation) to remove any or all Content from the Hyper Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take down request from Hyper. In the event that you elect not to comply with a request from Hyper to take down certain Content, Hyper reserves the right to directly take down such Content or to disable Applications.5.3In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user’s account on your Application. Hyper reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.5.4You agree that you are solely responsible for (and that Hyper has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Hyper Services and for the consequences of your actions (including any loss or damage which Hyper may suffer) by doing so.5.5You agree that Hyper has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.
Proprietary Rights
6.1You acknowledge and agree that Hyper (or Hyper’s licensors) own all legal right, title and interest in and to the Hyper Services, including any intellectual property rights which subsist in the Hyper Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).6.2Except as provided in Section 8, Hyper acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the Hyper Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Hyper, you agree that you are responsible for protecting and enforcing those rights and that Hyper has no obligation to do so on your behalf.
License from Hyper and Restrictions
7.1Hyper gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Hyper as part of the Hyper Services as provided to you by Hyper. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Hyper Services as provided by Hyper, in the manner permitted by the Terms.7.2You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Hyper Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Hyper, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Hyper Services or any applications running on the Hyper Services.7.3Open source software licenses for components of the Hyper Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Hyper for the use of the components of the Hyper Services released under an open source license.
License from You
8.1Hyper claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Hyper Services you give Hyper a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Hyper to provide you with the Hyper Services. Furthermore, by creating an Application through use of the Hyper Services, you give Hyper a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Hyper to provide you with the Hyper Services.8.2By adding a collaborator to your Application, you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Hyper Services functionality or features for the sole purpose of collaborating on development of the Application(s).8.3You may choose to or we may invite you to submit comments or ideas about the Hyper Services, including without limitation about how to improve the Hyper Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Hyper under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.8.4You agree that Hyper, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Hyper Services.
Add-ons
9.1Hyper may make available through the Hyper Services additional features, functionality, and services offered by its third-party partners (“Add-ons”). Your use of Add-ons is subject to these Terms and to the applicable fees. You acknowledge for each Add-on you subscribe to or purchase through the Hyper Services, these Terms constitute a binding agreement between you and the third party licensor of that Add-on (“the Add-on Provider”) only. The Add-on Provider of each Add-on is solely responsible for that Add-on, the content therein, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the Add-on Provider of that Add-on; Hyper is acting as agent for the Add-on Provider in providing each such Add-on to you; Hyper is not a party to the license between you and the Add-on Provider with respect to that Add-on; and Hyper is not responsible for that Add-on, the content therein, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that Hyper, and Hyper’s subsidiaries, are third party beneficiaries of the agreement between you and the Add-on Provider for each Add-on, and that Hyper will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.9.2By subscribing to or purchasing an Add-on, you grant Hyper permission to share your Application, Content, and user information with the Add-on Provider as necessary in order to provide you the Add-on.9.3The license granted to you to use any Add-on is personal to you, and is not sublicensable to your End Users. You may not provide or resell Add-ons to others.
Recommendations
10.1Hyper may, and you grant us permission to, make recommendations via the Hyper Services for products or services we think may be of interest to you based on your Application(s), Content, and/or use of the Hyper Services. We will never make recommendations directly to your End Users.
Modification and Termination of the Hyper Services
11.1Hyper is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Hyper Services which Hyper provides may change from time to time without prior notice to you. Changes to the form and nature of the Hyper Services will be effective with respect to all versions of the Hyper Services; examples of changes to the form and nature of the Hyper Services include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.11.2You may terminate these Terms at any time by canceling your account on the Hyper Services. You will not receive any refunds if you cancel your account.11.3You agree that Hyper, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Hyper Services may be without prior notice, and you agree that Hyper will not be liable to you or any third party for such termination.11.4You are solely responsible for exporting your Content and Application(s) from the Hyper Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).11.5Upon any termination of the Hyper Services or your account these Terms will also terminate, but Sections 5.1, 10, 11, 12, 13, and 17 shall continue to be effective after these Terms are terminated.
EXCLUSION OF WARRANTIES
12.1NOTHING IN THESE TERMS, INCLUDING SECTIONS 11 AND 12, SHALL EXCLUDE OR LIMIT HYPER’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.12.2YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE HYPER SERVICE IS AT YOUR SOLE RISK AND THAT THE HYPER SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”12.3HYPER, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE HYPER SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HYPER, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE HYPER SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE HYPER SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE HYPER SERVICES WILL BE ACCURATE.
LIMITATION OF LIABILITY
13.1SUBJECT TO SECTION 11.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT HYPER, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.13.2THE LIMITATIONS ON HYPER’S LIABILITY TO YOU IN PARAGRAPH 12.1 ABOVE SHALL APPLY WHETHER OR NOT HYPER HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
Indemnification
14.1You agree to hold harmless and indemnify Hyper, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively “Hyper and Partners”) from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Hyper Services, (c) your violation of applicable laws, rules or regulations in connection with the Hyper Services, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Hyper will provide you with written notice of such claim, suit or action.
Copyright Policy
15.1You agree to set up a process to respond to notices of alleged infringement that comply with the United States’ Digital Millennium Copyright Act (“DMCA notices”). It is Hyper’s policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice.
Other Content
16.1The Hyper Services may include hyperlinks to other web sites or content or resources or email content. Hyper may have no control over any web sites or resources which are provided by companies or persons other than Hyper.16.2You acknowledge and agree that Hyper is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.16.3You acknowledge and agree that Hyper is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
Changes to the Terms
17.1Hyper may make changes to the Terms from time to time. If we change the Terms in any substantive way, we will give you a grace period of seven (7) days to reject the changes by terminating your account.17.2You understand and agree that if you use the Hyper Services after the date on which the Terms have changed, Hyper will treat your use as acceptance of the updated Terms.
General Legal Terms
18.1The Terms constitute the whole legal agreement between you and Hyper and govern your use of the Hyper Services (but excluding any services which Hyper may provide to you under a separate written agreement), and completely replace any prior agreements between you and Hyper in relation to the Hyper Services.18.2There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.18.3If Hyper provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.18.4You agree that Hyper may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Hyper Services. By providing Hyper your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.18.5You agree that if Hyper does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Hyper has the benefit of under any applicable law), this will not be taken to be a formal waiver of Hyper’s rights and that those rights or remedies will still be available to Hyper.18.6Hyper shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.18.7The Terms, and your relationship with Hyper under the Terms, shall be governed by the laws of the State of North Carolina without regard to its conflict of laws provisions. You and Hyper agree to submit to the exclusive jurisdiction of the courts located within the county of Orange County, North Carolina to resolve any legal matter arising from the Terms. 18.8 Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of your use of the Hyper Services upon written notice to the assigning party.
NOTE: This document is an adaptation of the Heroku Terms of Service. The original work has been modified. Heroku, Inc. is not connected with and does not sponsor or endorse Hyper or its use of the work.
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