HYPERNET LABS, INC. TERMS OF SERVICE
Last Modified: May 5, 2020
These Terms of Service (“Terms,” “Terms of Service”) are a binding contract between you and Hypernet Labs, Inc. (“Hypernet Labs, Inc.”, “we”, “us” or “our”). These Terms apply to your use of our application, Galileo (“Galileo” or the “App”). Please read these Terms carefully before using the App. To make these Terms easier to read, the site, our services and App are collectively called the “Services.”
THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND WAIVER OF CLASS ACTION AND JURY RIGHTS. PLEASE SEE THE DISPUTE RESOLUTION SECTION OF THIS AGREEMENT FOR MORE INFORMATION AND OPT-OUT INSTRUCTIONS.
1.1. Agreement to Terms of Service. In order to use the App, you must become a Hypernet Labs, Inc. member (“Member”). If you do not accept the Terms, you may not become a Member, you may not create an account (“Account”), and you are not authorized to use the App for any purpose. If you are entering into these Terms on behalf of an entity, you confirm that you are an authorized representative of that entity and have the authority to enter into the Terms for and on behalf of that entity. If you do not agree to the Terms, please do not access, use or register for the App.
1.3. Changes to Terms of Service or App. We may change, modify, update, suspend, discontinue or replace these Terms at any time in our sole discretion. If we make a material change to the Terms, we may provide notice to you to the email address we have on file or using “just in time” disclosures on the App. By continuing to use the App after those changes become effective, you agree to be bound by the revised Terms. To find out when we last updated the Terms, please refer to the date listed after “Last Modified” at the top of these Terms.
You further understand that we are always improving and working on our Services, which means our App may change over time. In our sole discretion, we may change, modify, update, suspend or discontinue all or any part of the App at any time with or without notice to you. You agree that we are not liable to you or any third party for any modification, suspension or discontinuance of the App or any part thereof.
2. DESCRIPTION OF THE APP
To be eligible to register for an Account, you represent and warrant:
- You have the legal capacity to form a binding contract with us;
- You are 18 years or older, or are an authorized user. Authorized users of the Account under the age of 18 must (i) be of the legal age required by your state to hold a driver’s license and (ii) have parental or legal guardian consent to access and use the App, and can only use the App under the supervision of their parent or legal guardian;
- Your use and access of the App will not violate any applicable laws or regulations including any export control rules identified below;
- You will provide us with information that is accurate, complete, and current at all times;
- You agree to be fully responsible for all actions taken on your Account;
- You will be responsible for safeguarding the password that you use to access the App and for any activities or actions under your password, whether your password is with our App or a third-party service;
- You will notify us immediately upon becoming aware of any breach of security or unauthorized use of your Account; and,
- You will not use as a username the name of another person or entity that you do not have the right to use, or the name of a person or entity with the intent to impersonate that person or entity.
Hypernet Labs, Inc. is not liable for any loss or damage arising or resulting from your failure to comply with the above requirements. In addition, failure to meet any of the eligibility requirements listed above constitutes a breach of these Terms, which may result in immediate termination of your Account on our App.
2.2. Compliance Controls. Additionally, Hypernet Labs, Inc. may be subject to certain U.S. export and re-export control laws and regulations and/or similar laws applicable in other jurisdictions, including trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”). By using Hypernet Labs, Inc., you represent and warrant that You are not (1) located in the Crimea region, Cuba, Iran, North Korea, or Syria (“Prohibited Jurisdiction”); or (2) a denied party as specified in the regulations described above. You further agree to comply with all applicable export and re-export control laws and regulations, including the trade and economic sanctions maintained by OFAC. This provision shall survive termination or cancellation of these Terms. If Hypernet Labs, Inc. identifies that you are located in a prohibited jurisdiction, it may suspend or cancel your Account or take such action as reasonably necessary to comply with applicable law.
2.3. General Description of Galileo and Magellan. Galileo and Magellan are apps that provides a marketplace for Members to buy and sell the temporary use of the computational power of their desktops, laptops, tablets and phones (“Devices”). That is, Members may rent out idle time on their Devices (“Host Members”) to provide other Members, often researchers, engineers and others, with the computational power of such Devices (“Computational Members”). To use Galileo, a Computational Member sends code, data, and computational instructions (“Original Content”) to the Host Member’s Device and said Device builds a container for the Content (“Container”) on the Host Member Device. The computations are then run inside the Container and returned to the Computational Member (“Computed Content”). Host Members and Computational Members communicate and transact directly with each other through Galileo, and Hypernet Labs, Inc. is not and does not become a party to any contractual relationship between Members, nor is Hypernet Labs, Inc. acting as an agent in any capacity for any Member, nor is any Member acting as an employee, agent, joint venturer or partner of Hypernet Labs, Inc. Hypernet Labs, Inc. has no control over and does not guarantee the quality, security, suitability, legality, performance or conduct of any transactions between Members using the App. When using the App, Members act exclusively on their own behalf and for their own benefit, and not on behalf of or for the benefit of Hypernet Labs, Inc.
2.4. Pledging a Device. Through the functionality of our App, you may pledge one or more Devices to participate in the Services described in Section 2.2.By pledging one or more Devices, you acknowledge and agree that we may contact you to provide status updates on the availability of and any changes to the App, among other things.
2.5. Content Ownership; Representations and Warranties. Computational Members own their Original Content and Computed Content. Host Members agree not to claim any ownership rights in Original Content or Computed Content, and Hypernet Labs, Inc. does not claim any ownership rights in Original Content or Computed Content. Each Computational Member is solely responsible for its Original Content and Computed Content and represents and warrants that: (i) it owns all of its Original Content and Computed Content, and (ii) neither its Original Content or Computed Content, nor its use and provision of its Original Content and Computed Content made available on or through the App will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
3. HYPERNET LABS, INC.’s INTELLECTUAL PROPERTY
3.1. Copyright Policy. Hypernet Labs, Inc. owns and retains all proprietary rights to the App, its trademarks, copyrights, trade secrets, and/or patents, whether registered or not, and all other trademarks and trade names are the property of their respective owners. All Members acknowledge that the App, Original Content and Computed Content are protected by copyright, trademark, and other laws of the United States and foreign countries, and agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the same. In appropriate circumstances, Hypernet Labs, Inc. may terminate the Account of any Member who repeatedly infringes or is believed to be repeatedly infringing the rights of any copyright holder.
3.2. License for the App. Subject to your compliance with these Terms, Hypernet Labs, Inc. grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control, and to run such copy of the App solely for your own personal purposes to conduct transactions contemplated in these Terms, subject to all the terms and conditions in these Terms as they are applicable to the App. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App (which, for greater certainty, includes all the Original Content and Computed Content made available to Account holders (including you) through the App); (ii) distribute, transfer, sublicense, sell, resell, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple non-Member users through any means. Hypernet Labs, Inc. reserves all rights in and to the App not expressly granted to you under these Terms.
3.3. DMCA Policy. We respect others’ intellectual property rights and reserve the right to delete or disable any Original Content or Computed Content alleged to be infringing the Digital Millennium Copyright Act (“DMCA”), and to suspend or terminate the Accounts of alleged infringers. If you believe someone is infringing on your copyright or that of another, please contact us at firstname.lastname@example.org.
4. Paid Services.
4.1. One-Time Payments and Subscriptions. You must pay a fee for certain identified Services (“Paid Services”). For such Paid Services, you may have the option of making a one-time payment (“One-Time Payment”) or purchasing a subscription (“Subscription”).
General. Whether you make a One-Time Payment or purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction in the manner identified on the App. We may ask you to supply additional information relevant to your Transaction, including, without limitation, Your credit card number, the expiration date of Your credit card and Your billing address (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
4.2. Subscriptions. If you purchase a Subscription, you will be charged the annual Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each year thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE HYPERNET LABS, INC. TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each year on the anniversary of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. No less than thirty (30) days and no more than sixty (60) days before your Subscription term ends, or otherwise in accordance with applicable law, Hypernet Labs, Inc. will send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Hypernet Labs, Inc.. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
4.3. Cancelling One-Time Payment or Subscription. You may cancel a Transaction for a full refund within one (1) calendar day of your initial purchase. AFTER THAT, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR ONE-TIME PAYMENT OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction subject to applicable law. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to email@example.com. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current subscription period and will then terminate without further charges.
5. GENERAL PROHIBITIONS AND HYPERNET LABS, INC.’S ENFORCEMENT RIGHTS
5.1. Restrictions. The rights granted to you in these Terms are subject to the following restrictions:
- You will not post, upload, publish, submit or transmit any Original Content or Computed Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; or (iv) promotes illegal or harmful activities or substances;
- You will not access the App using unauthorized automated means of any nature;
- You will not send, use or upload any scripts, viruses or malicious code, or develop extensions, plugins or applications except as may be explicitly allowed by Hypernet Labs, Inc.;
- You will not damage, disable, overburden or impair the functionality, rendering or appearance of the App, including through denial of service or other attack;
- You will not obtain or attempt to obtain any materials, data or information through any means not intentionally made available through the App;
- If a Host Member, you will not gain or attempt to gain unauthorized access to a Computational Member’s Container, Original Content or Computed Content;
- If a Host Member, you will not interfere or attempt to interfere in any way with a Computational Member’s Container, Original Content or Computed Content;
- If a Computational Member, you will not perform any function on the Host Member Device outside the Container;
- If a Computational Member, you will not gain or attempt to gain unauthorized access to a Host Member Device;
- If a Computational Member, you will not interfere or attempt to interfere in any way with a Host Member Device;
- You will not attempt to probe, scan or test the vulnerability of any Hypernet Labs, Inc. system or network or breach any security or authentication measures;
- You will not avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Hypernet Labs, Inc. or any of Hypernet Labs, Inc.’s providers or any other third party (including another Member or user) to protect the App;
- You will not use the App, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the App;
- You will not collect or store any personally identifiable information from the App from other Members or users of the App without their express permission;
- You will not forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the App to send altered, deceptive or false source-identifying information;
- You will not use, display, mirror or frame the App or any individual element within the App, Hypernet Labs, Inc.’s name, any Hypernet Labs, Inc. trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Hypernet Labs, Inc.’s express written consent;
- You will not breach the privacy of any third person, including but not limited to Members or any person that is the subject of any Original Content;
- You will not do anything that would interfere with any other party’s use and enjoyment of the App;
- You will not impersonate or misrepresent your affiliation with any person or entity;
- You will not violate any applicable laws or regulations; or
- You will not encourage or enable any other individual or entity to do any of the foregoing.
Your failure to abide by the foregoing may result in the termination or suspension of your use or access to our App, in our sole discretion, for any reason, at any time, and without notice. We have the sole right to determine whether you are in breach of any of these Terms.
5.2. How We Deal with Original Content and Computed Content. Although we are not obligated to monitor access to or use of the App or to review or edit any Original Content or Computed Content, we have the right to do so for the purpose of operating the App, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Original Content or Computed Content, at any time and without notice, including but not limited to, if, in our sole discretion, we consider any Original Content or Computed Content to be objectionable or in violation of the Terms. We have the right to investigate violations of these Terms or conduct that affects the App, including without limitation, consulting and cooperating with law enforcement authorities to prosecute Members or users who violate the law.
6. SHARING OF INFORMATION
6.2. Sharing between Members. Where you direct us to do so through the App, we will share your Original Content with other Members. If that Original Content includes any Personal Information about any person other than yourself, you warrant that you have obtained all necessary consents to provide that Personal Information to other Members and that you will use that Personal Information as directed.
7. ASSUMED RISK
7.1. Assumption of Risks. Your use of the App, or any part thereof, is at your sole risk and we assume no responsibility in connection with your use of App, including without limitation, the sharing of your Device’s computational power with another party through the App. If any third party files a claim against you, or we are otherwise informed of a dispute between you and another party, we are not responsible for determining the veracity of claims or resolution of the dispute.
7.2. Security of Account Credentials. We may require you to meet certain requirements for passwords and multi-factor authentication, and we may change the requirements with or without prior notice. Despite the strength of your password, you must ensure that your Account credentials, including credentials for the email account you use in connection with the App, are secure. If they are not secure, others may compromise and take action on your Account. You should always use two-factor authentication, avoid copying scripts into your browser address bar, and avoid clicking on links, opening attachments or visiting Internet resources you do not trust. You are responsible for maintaining adequate security and control of any and all IDs, passwords, hints, personal identification numbers (PINs), or any other codes that you use to access or use in relation to the App. We assume no responsibility for any losses resulting from the compromise of your Account.
8. LINKS TO THIRD-PARTY WEB SITES OR RESOURCES
8.1. Third-Party Links. Our App may contain links to third-party web sites or apps that are not owned or controlled by Hypernet Labs, Inc., and such links do not imply Hypernet Labs, Inc.’s ownership, control, sponsorship, affiliation or endorsement thereof. Hypernet Labs, Inc. has no control over, makes no representations about the accuracy of, and assumes no responsibility for the content, privacy policies, or practices of any third-party web sites or apps. We do not warrant the offerings of any of these entities/individuals or their web sites. You acknowledge and agree that Hypernet Labs, Inc. shall 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 such content, goods or services available on or through any such third-party web sites or services. Further, we strongly advise you to read the terms and conditions and privacy policies of any such third-party web sites or services. Certain parts of the Services may be delivered by third parties with whom Hypernet Labs, Inc. has a contractual relationship regarding such Services and, by using any such third-party service, you hereby agree that Hypernet Labs, Inc. may share your information with such third party to provide the Services.
9. TERMINATION AND CANCELLATION
9.1. Termination of Account. Your use of the App is a privilege and not a right. We may, in our sole discretion, cancel, terminate, suspend or otherwise restrict your Account and your access to all or part of the App at any time with or without notice. Without limiting the generality of the foregoing, we may terminate your access to the App and delete all related data, information and files. In the event that you wish to stop using the App, you may cancel your Account if you are in good standing and in compliance with these Terms and other policies. To cancel your Account, email us at firstname.lastname@example.org.
10.1. Indemnification. You agree to defend, indemnify and hold harmless Hypernet Labs, Inc. and its directors, officers, employees, agents as well as its affiliates and service providers and each of their respective directors, officers, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses, including attorney’s fees, resulting from or arising out of (i) your use of the App or any part thereof, (ii) your breach of these Terms, (iii) a violation or alleged violation of any laws, rules, regulations or rights, or (iv) a dispute between you and another Member.
11. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
11.1. DISCLAIMER. WE TRY TO KEEP THE APP OPERATIONAL, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE APP OR ANY PART THEREOF OR ANY USE THEREOF WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, ERROR-FREE, SECURE OR FREE OF HARMFUL COMPONENTS. OPERATION OF THE APP MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. WE MAKE NO REPRESENTATION OR WARRANTIES AS TO THE QUALITY, SUITABILITY, USEFULNESS, ACCURACY, OR COMPLETENESS OF THE APP, THAT THE APP OR RESULTS OF USING THE APP WILL MEET YOUR REQUIREMENTS, THAT THE APP WILL OPERATE WITH OTHER HARDWARE OR SOFTWARE, OR THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
11.2. NO RESPONSIBILITY FOR THIRD PARTIES. WE ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE HYPERNET LABS, INC., OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES AND SERVICE PROVIDERS AND ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
11.3. CALIFORNIA RESIDENT. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH PROVIDES: “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.”
11.4. NO INDIRECT DAMAGES.WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE APP, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.5. LIABILITY CAP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF HYPERNET LABS, INC., ITS AFFILIATES, AND SERVICE PROVIDERS, OR ANY RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE Greater OF (A) THE ACTUAL FEES PAID TO HYPERNET LABS, INC. BY YOU IN THE PRECEDING THREE (3) MONTHS AND (B) U.S. $100 DOLLARS, if you paid no fees. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
12. Governing Law and Forum Choice.
12.1. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 13 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Hypernet Labs, Inc. are not required to arbitrate will be the state and federal courts located in the California, and you and Hypernet Labs, Inc. each waive any objection to jurisdiction and venue in such courts.
13. Dispute Resolution.
13.1. Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Hypernet Labs, Inc. agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Hypernet Labs, Inc. are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
13.2. Exceptions. As limited exceptions to Section 13.1 above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
13.3. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
13.4. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
13.5. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
13.6. Injunctive and Declaratory Relief. Except as provided in Section 13.2 above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
13.7. Class Action Waiver. YOU AND Hypernet Labs, Inc. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
13.8. Effect of Changes on Arbitration. Notwithstanding the provisions of Section 1 “Changes to Terms or Services” above, if Hypernet Labs, Inc. changes any of the terms of this Section 13 “Dispute Resolution” after the date you most recently accepted these Terms, you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Hypernet Labs, Inc.’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Hypernet Labs, Inc. in accordance with the terms of this Section 13 “Dispute Resolution” as of the date you most recently accepted these Terms.
13.9. Severability. With the exception of any of the provisions in Section 13.6 of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
14. U.S. GOVERNMENT RIGHTS
14.1. U.S. Government Rights. The App may be provided to the U.S. Government as “commercial computer software,” “commercial computer software documentation,” and “technical data” (as these terms are defined in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement) with the same rights and restrictions generally applicable to the App. If you are using the App on behalf of the U.S. Government and these Terms fail to meet the U.S. Government’s requirements or are otherwise inconsistent with federal law, you must immediately discontinue your use of the App.
15. OTHER MATTERS
15.1. Entire Agreement. Unless otherwise agreed in writing, these Terms set forth the entire understanding and agreement between you and Hypernet Labs, Inc. as to the subject matter hereof, and supersede any and all prior discussions, agreements compare and understandings of any kind (including without limitation any prior versions of these Terms) and of any nature between and among you and Hypernet Labs, Inc.
15.2. Headings. The section titles in these Terms are for your convenience only and have no legal or contractual effect.
15.3. Assignment. These Terms, and any rights, obligations and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Hypernet Labs, Inc. without notice or restriction, including without limitation to any of our affiliates, parents or subsidiaries, or to any successor in interest. Any attempted transfer or assignment in violation hereof will be null and void except that, subject to the limits herein, our Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
15.4. Waiver. Our failure to act with respect to a breach of these Terms by you or others does not waive our right to act with respect to subsequent or similar breaches or our right to enforce any provision at a later time.
15.5. Severability. In the event any one or more of the provisions of these Terms is for any reason held to be invalid, illegal, or unenforceable, the remaining provisions of these Terms will be unimpaired and remain in full force and effect. Any invalid, illegal or unenforceable provision will be replaced by a provision which, being valid, legal and enforceable, comes close to the intention of the parties underlying the invalid, illegal, or unenforceable provision.
15.6. Survival. Upon any cancellation, suspension or termination of the App, the following Sections of these Terms will survive: Sections 2.5,3, 4, 6, and 9-15.
15.7. Governing Law. These Terms shall be governed by the laws of the State of California, excluding its choice of law provisions. Each party irrevocably submits to the exclusive jurisdiction of the state courts of the State of California located in [Santa Clara County] or to the federal courts for the Northern District of California. Each party waives all defenses of lack of personal jurisdiction and forum non conveniens.
16. CONTACT US
16.1. If you have any question about these Terms, please contact us at firstname.lastname@example.org.