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This End User License Agreement (this “Agreement”) is a binding agreement between Hyper Online, Inc. (“Hyper”) and you or the corporation, governmental organization or other legal entity on whose behalf you are authorized to enter this Agreement (“you” or “Licensee”) and sets forth the terms and conditions by which Licensee may use Hyper’s VTuber Avatar Studio software provided to you pursuant to this Agreement (the “Software”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 13 (THE “ARBITRATION AGREEMENT”) AND A CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 14 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN THE ARBITRATION AGREEMENT, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND HYPER, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THE TERMS OF THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION OR PROCEEDING.
HYPER PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, HYPER WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE OR DOCUMENTATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF HYPER’S SOFTWARE.
License Grant and Scope. Subject to and conditioned upon Licensee’s compliance with all terms and conditions set forth in this Agreement, Hyper hereby grants Licensee a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15(d)), license, during the Term to:
Download and install in accordance with the Documentation (as defined below) one (1) copy of the Software on computers owned or leased, and controlled by, Licensee.
Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation.
use Hyper’s user manuals, handbooks, and installation guides relating to the Software provided by Hyper to Licensee either electronically or in hard copy form, including the end user documentation relating to the Software available at (“Documentation”), solely in support of its licensed use of the Software in accordance herewith.Use Restrictions. Licensee shall not, directly or indirectly:use the Software or Documentation beyond the scope of the license granted under Section 1;provide any other individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity (each, a “Person”), including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;use any content available on or via the Software (including any caption information, keywords, or other metadata) for any machine learning or artificial intelligence training or development purposes, or for any technologies designed or intended for the identification of natural persons;remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;bypass the measures Hyper may use to prevent or restrict access to the Software, including features that prevent or restrict use or copying of any content or that enforce limitations on use of the Software or any portion thereof;impersonate another person or entity, misrepresent an affiliation with a person or entity, or otherwise use the Software for any invasive or fraudulent purpose;identify or refer to Hyper or to the Software in a manner that could reasonably imply a relationship that involves endorsement, affiliation, or sponsorship between Licensee (or a third party) and Hyper without Hyper’s prior express written consent;except as expressly set forth in Sections 1(a) and 1(c), copy the Software or Documentation, in whole or in part;rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;use the Software or Documentation in violation of any law, regulation, or rule; oruse the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to Hyper’s commercial disadvantage.Responsibility for Software Use. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by any Person to whom Licensee may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this Agreement.Collection and Use of Information. Licensee acknowledges that Hyper may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used. Licensee agrees that Hyper may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including (a) improving the performance of the Software developing updates; and (b) verifying Licensee’s compliance with the terms of this Agreement and enforcing Hyper’s rights, including all Intellectual Property Rights in and to the Software. To the extent Licensee provide Hyper any suggestions, recommendations, or other feedback relating to the Software or to any other products or services (collectively, “Feedback”), Licensee hereby assigns to Hyper all rights (including Intellectual Property Rights), title, and interest in and to the Feedback. Accordingly, Hyper is free to use the Feedback and any ideas, know-how, concepts, techniques, and other intellectual property contained in the Feedback, without providing any attribution or compensation to Licensee or to any third party, for any purpose whatsoever, although Hyper is not required to use any Feedback. Feedback is deemed Hyper’s Confidential. Licensee acknowledges that, by acceptance of submission of Feedback, Hyper does not waive any rights to use similar or related ideas previously known to Hyper, or developed by Hyper employees, or obtained from sources other than Licensee.Third-Party Materials. The Software may include, or certain functionalities of the Software may require use of, software, content, data, or other materials, including related documentation, that are owned by Persons other than Hyper and that are provided to Licensee on licensee terms that are in addition to or different from those contained in this Agreement (“Third-Party Licenses”). A list of such third-party materials can be found at [LINK] and the applicable Third-Party Licenses are accessible via links therefrom. Licensee is bound by and shall comply with all Third-Party Licenses in each case to the extent applicable. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.Intellectual Property Rights. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Hyper and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software, all Intellectual Property Rights arising out of or relating to the Software, all materials and content displayed or otherwise made available on through the Software (including, images, text, graphics, illustrations, logos, photographs, audio, videos and music), and all software, algorithms, code, technology, and Intellectual Property Rights underlying or included in or with the Software, in each case except as expressly granted to the Licensee in this Agreement. Subject to Licensee’s compliance with this Agreement, Licensee may use output of its use of the Software (“Output”) on a royalty-free basis, provided that Licensee acknowledges and agrees: (i) that Licensee’s use of the Software and the Output does not transfer to Licensee any ownership of any Intellectual Property Rights in the Output, the Software, any materials and content displayed or otherwise made available on through the Software (including, images, text, graphics, illustrations, logos, photographs, audio, videos and music), or any other software, algorithms, code, technology, and Intellectual Property Rights underlying or included in or with the Software; and that (ii) Hyper may, by notice to Licensee at any time, limit Licensee’s use of the Output or require Licensee to cease such use (and delete any copies thereof) if Hyper forms the view, in Hyper’s sole and absolute discretion, that use of the Output may infringe the rights of any third party. Licensee shall not represent that Output was human-generated or use the Output to train Licensee’s own machine learning models.Term and Termination.This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation. Hyper may terminate this Agreement, effective upon written notice to Licensee, if Licensee breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Hyper provides written notice thereof.Hyper may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay fees (if any) that may have become due before such expiration or termination, or entitle Licensee to any refund.Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, HYPER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, HYPER PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. DUE TO THE NATURE OF MACHINE LEARNING, OUTPUT MAY NOT BE UNIQUE ACROSS USERS OF THE SOFTWARE AND THE SOFTWARE MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR OTHER USERS. USE OF THE SOFTWARE MAY RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT REALITY. LICENSEE UNDERSTANDS AND AGREES THAT THE OUTPUT MAY CONTAIN “HALLUCINATIONS” AND MAY BE INACCURATE, OBJECTIONABLE, INAPPROPRIATE, OR OTHERWISE UNSUITED TO LICENSEE’S PURPOSE, AND LICENSEE AGREES THAT HYPER SHALL NOT BE LIABLE FOR ANY DAMAGES LICENSEE OR ANY THIRD PARTY ALLEGES TO INCUR AS A RESULT OF OR RELATING TO ANY OUTPUT OR OTHER CONTENT GENERATED BY OR ACCESSED ON OR THROUGH THE SOFTWARE.Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:IN NO EVENT WILL HYPER OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT HYPER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT WILL HYPER’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO HYPER PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM. THE LIMITATIONS SET FORTH IN SECTIONS 9(a) AND 9(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.Indemnity. Licensee will defend, indemnify, and hold Hyper and its subsidiaries and affiliates, and its and their respective agents, suppliers, licensors, employees, contractors, officers, and directors (collectively, including Hyper, the “Indemnitees”) harmless from and against any and all claims, damages (whether direct, indirect, incidental, consequential, or otherwise), obligations, losses, liabilities, costs, debts, and expenses (including, but not limited to, legal fees) arising from: (a) Licensee’s unauthorized use of the Software or Output; (b) Licensee’s violation of any term of this Agreement, including breach of any representation or warranty set forth in this Agreement; (c) Licensee’s violation of any third-party right, including, without limitation, any privacy right or Intellectual Property Right; (d) Licensee’s violation of any applicable laws or regulations; (e) Licensee’s willful misconduct.Export Regulation. The Software may be subject to export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.Governing Law. This Agreement will be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Notwithstanding the preceding sentences with respect to the substantive law governing this Agreement, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (as it may be amended, “FAA”) governs the interpretation and enforcement of the Arbitration Agreement below and preempts all state laws (and laws of other jurisdictions) to the fullest extent permitted by Applicable Law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue will be resolved under and governed by the law of the U.S. state where Licensee lives (if applicable) or the jurisdiction mutually agreed upon in writing by the Parties. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Licensee agrees to submit to the exclusive personal jurisdiction of the federal and state courts located in California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of Hyper’s data, Confidential Information, or Intellectual Property Rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. Licensee agree that California is the proper and exclusive forum for any appeals of an arbitration award, or for trial court proceedings in the event that the Arbitration Agreement below is found to be unenforceable. This Agreement was drafted in the English language and this English language version of this Agreement is the original, governing instrument of the understanding between the Parties. In the event of any conflict between the English version of this Agreement and any translation, the English version will prevail.Arbitration Agreement. READ SECTION 13 CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH LICENSEE CAN SEEK RELIEF FROM HYPER. This Arbitration Agreement applies to and governs any dispute, controversy, or claim between the Parties that arises out of or relates to, directly or indirectly: (i) this Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, and enforceability thereof; (ii) access to or use of the Software, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Software; or (iv) any other aspect of Licensee’s relationship or transactions with Hyper, directly or indirectly, as a User or consumer (each, a “Claim,” and, collectively, “Claims”). This Arbitration Agreement will apply, without limitation, to all Claims that arose or were asserted before or after Licensee’s consent to this Agreement.Licensee can reject and opt out of this Arbitration Agreement within thirty (30) days of accepting this Agreement by emailing Hyper at [support@hyper.online] with Licensee’s full, legal name and stating Licensee’s intent to opt out of this Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of this Agreement, including the provisions regarding controlling law or the courts in which any disputes must be brought.For any Claim, Licensee will first contact Hyper at [support@hyper.online] and attempt to resolve the Claim with Hyper informally. In the unlikely event that the Parties have not been able to resolve a Claim after sixty (60) days, the Parties agree to resolve such Claim exclusively through binding arbitration by JAMS before a single arbitrator (the “Arbitrator”), under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement will control. The arbitration will be conducted in the U.S. county where Licensee lives (if applicable) or San Francisco County, California, unless the Parties agree otherwise. If Licensee is using the Software for commercial purposes, each party will be responsible for paying any JAMS filing and administrative fees and Arbitrator fees in accordance with the Rules, and the award rendered by the Arbitrator will include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. If Licensee is an individual using the Software for non-commercial purposes: (i) JAMS may require Licensee to pay a fee for the initiation of Licensee’s case, unless Licensee applies for and successfully obtains a fee waiver from JAMS; (ii) the award rendered by the Arbitrator may include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses; and (iii) Licensee may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this would not absolve Licensee of its commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. The Parties agree that the Arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any disputes relating to the scope, interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator will also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement are, or whether any provision of this Agreement is, unconscionable or illusory, and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.NOTHING IN THIS ARBITRATION AGREEMENT WILL BE DEEMED AS: PREVENTING HYPER FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF HYPER’S DATA, CONFIDENTIAL INFORMATION, OR INTELLECTUAL PROPERTY RIGHTS; OR PREVENTING LICENSEE FROM ASSERTING CLAIMS IN A SMALL CLAIMS COURT, PROVIDED THAT LICENSEE’S CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this Arbitration Agreement, which will remain in force, or on the Parties’ ability to compel arbitration of any remaining Claims on an individual basis pursuant to this Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver below is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent Licensee from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement will be arbitrated under its terms, and the Parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration.Class Action/Jury Trial Waiver. BY ENTERING INTO THIS AGREEMENT, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER. THE FOREGOING APPLIES REGARDLESS OF WHETHER LICENSEE HAS OBTAINED OR USED THE SOFTWARE FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES. THIS CLASS ACTION/JURY TRIAL WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS. THE PARTIES AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON A PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER THIRD-PARTY USERS OF THE SOFTWARE. Miscellaneous.In no event shall Hyper be liable to Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Hyper’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities.All notices, requests, consents, claims, demands, waivers, and other communications (each, a “Notice”) hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Without limiting the foregoing, Notices to Hyper must be sent to: 2261 Market Street, Unit 4025, San Francisco, California, USA, 94114.This Agreement constitutes the sole and entire agreement between Licensee and Hyper with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Hyper’s prior written consent, which consent Hyper may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Hyper’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15(d) is void. Hyper may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.For purposes of this Agreement, (i) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 13 (THE “ARBITRATION AGREEMENT”) AND A CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 14 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN THE ARBITRATION AGREEMENT, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND HYPER, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THE TERMS OF THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION OR PROCEEDING.
HYPER PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, HYPER WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE OR DOCUMENTATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF HYPER’S SOFTWARE.
License Grant and Scope. Subject to and conditioned upon Licensee’s compliance with all terms and conditions set forth in this Agreement, Hyper hereby grants Licensee a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15(d)), license, during the Term to:
Download and install in accordance with the Documentation (as defined below) one (1) copy of the Software on computers owned or leased, and controlled by, Licensee.
Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation.
use Hyper’s user manuals, handbooks, and installation guides relating to the Software provided by Hyper to Licensee either electronically or in hard copy form, including the end user documentation relating to the Software available at (“Documentation”), solely in support of its licensed use of the Software in accordance herewith.Use Restrictions. Licensee shall not, directly or indirectly:use the Software or Documentation beyond the scope of the license granted under Section 1;provide any other individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity (each, a “Person”), including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;use any content available on or via the Software (including any caption information, keywords, or other metadata) for any machine learning or artificial intelligence training or development purposes, or for any technologies designed or intended for the identification of natural persons;remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;bypass the measures Hyper may use to prevent or restrict access to the Software, including features that prevent or restrict use or copying of any content or that enforce limitations on use of the Software or any portion thereof;impersonate another person or entity, misrepresent an affiliation with a person or entity, or otherwise use the Software for any invasive or fraudulent purpose;identify or refer to Hyper or to the Software in a manner that could reasonably imply a relationship that involves endorsement, affiliation, or sponsorship between Licensee (or a third party) and Hyper without Hyper’s prior express written consent;except as expressly set forth in Sections 1(a) and 1(c), copy the Software or Documentation, in whole or in part;rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;use the Software or Documentation in violation of any law, regulation, or rule; oruse the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to Hyper’s commercial disadvantage.Responsibility for Software Use. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by any Person to whom Licensee may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this Agreement.Collection and Use of Information. Licensee acknowledges that Hyper may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used. Licensee agrees that Hyper may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including (a) improving the performance of the Software developing updates; and (b) verifying Licensee’s compliance with the terms of this Agreement and enforcing Hyper’s rights, including all Intellectual Property Rights in and to the Software. To the extent Licensee provide Hyper any suggestions, recommendations, or other feedback relating to the Software or to any other products or services (collectively, “Feedback”), Licensee hereby assigns to Hyper all rights (including Intellectual Property Rights), title, and interest in and to the Feedback. Accordingly, Hyper is free to use the Feedback and any ideas, know-how, concepts, techniques, and other intellectual property contained in the Feedback, without providing any attribution or compensation to Licensee or to any third party, for any purpose whatsoever, although Hyper is not required to use any Feedback. Feedback is deemed Hyper’s Confidential. Licensee acknowledges that, by acceptance of submission of Feedback, Hyper does not waive any rights to use similar or related ideas previously known to Hyper, or developed by Hyper employees, or obtained from sources other than Licensee.Third-Party Materials. The Software may include, or certain functionalities of the Software may require use of, software, content, data, or other materials, including related documentation, that are owned by Persons other than Hyper and that are provided to Licensee on licensee terms that are in addition to or different from those contained in this Agreement (“Third-Party Licenses”). A list of such third-party materials can be found at [LINK] and the applicable Third-Party Licenses are accessible via links therefrom. Licensee is bound by and shall comply with all Third-Party Licenses in each case to the extent applicable. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.Intellectual Property Rights. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Hyper and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software, all Intellectual Property Rights arising out of or relating to the Software, all materials and content displayed or otherwise made available on through the Software (including, images, text, graphics, illustrations, logos, photographs, audio, videos and music), and all software, algorithms, code, technology, and Intellectual Property Rights underlying or included in or with the Software, in each case except as expressly granted to the Licensee in this Agreement. Subject to Licensee’s compliance with this Agreement, Licensee may use output of its use of the Software (“Output”) on a royalty-free basis, provided that Licensee acknowledges and agrees: (i) that Licensee’s use of the Software and the Output does not transfer to Licensee any ownership of any Intellectual Property Rights in the Output, the Software, any materials and content displayed or otherwise made available on through the Software (including, images, text, graphics, illustrations, logos, photographs, audio, videos and music), or any other software, algorithms, code, technology, and Intellectual Property Rights underlying or included in or with the Software; and that (ii) Hyper may, by notice to Licensee at any time, limit Licensee’s use of the Output or require Licensee to cease such use (and delete any copies thereof) if Hyper forms the view, in Hyper’s sole and absolute discretion, that use of the Output may infringe the rights of any third party. Licensee shall not represent that Output was human-generated or use the Output to train Licensee’s own machine learning models.Term and Termination.This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation. Hyper may terminate this Agreement, effective upon written notice to Licensee, if Licensee breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Hyper provides written notice thereof.Hyper may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay fees (if any) that may have become due before such expiration or termination, or entitle Licensee to any refund.Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, HYPER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, HYPER PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. DUE TO THE NATURE OF MACHINE LEARNING, OUTPUT MAY NOT BE UNIQUE ACROSS USERS OF THE SOFTWARE AND THE SOFTWARE MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR OTHER USERS. USE OF THE SOFTWARE MAY RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT REALITY. LICENSEE UNDERSTANDS AND AGREES THAT THE OUTPUT MAY CONTAIN “HALLUCINATIONS” AND MAY BE INACCURATE, OBJECTIONABLE, INAPPROPRIATE, OR OTHERWISE UNSUITED TO LICENSEE’S PURPOSE, AND LICENSEE AGREES THAT HYPER SHALL NOT BE LIABLE FOR ANY DAMAGES LICENSEE OR ANY THIRD PARTY ALLEGES TO INCUR AS A RESULT OF OR RELATING TO ANY OUTPUT OR OTHER CONTENT GENERATED BY OR ACCESSED ON OR THROUGH THE SOFTWARE.Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:IN NO EVENT WILL HYPER OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT HYPER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT WILL HYPER’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO HYPER PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM. THE LIMITATIONS SET FORTH IN SECTIONS 9(a) AND 9(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.Indemnity. Licensee will defend, indemnify, and hold Hyper and its subsidiaries and affiliates, and its and their respective agents, suppliers, licensors, employees, contractors, officers, and directors (collectively, including Hyper, the “Indemnitees”) harmless from and against any and all claims, damages (whether direct, indirect, incidental, consequential, or otherwise), obligations, losses, liabilities, costs, debts, and expenses (including, but not limited to, legal fees) arising from: (a) Licensee’s unauthorized use of the Software or Output; (b) Licensee’s violation of any term of this Agreement, including breach of any representation or warranty set forth in this Agreement; (c) Licensee’s violation of any third-party right, including, without limitation, any privacy right or Intellectual Property Right; (d) Licensee’s violation of any applicable laws or regulations; (e) Licensee’s willful misconduct.Export Regulation. The Software may be subject to export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.Governing Law. This Agreement will be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Notwithstanding the preceding sentences with respect to the substantive law governing this Agreement, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (as it may be amended, “FAA”) governs the interpretation and enforcement of the Arbitration Agreement below and preempts all state laws (and laws of other jurisdictions) to the fullest extent permitted by Applicable Law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue will be resolved under and governed by the law of the U.S. state where Licensee lives (if applicable) or the jurisdiction mutually agreed upon in writing by the Parties. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Licensee agrees to submit to the exclusive personal jurisdiction of the federal and state courts located in California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of Hyper’s data, Confidential Information, or Intellectual Property Rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. Licensee agree that California is the proper and exclusive forum for any appeals of an arbitration award, or for trial court proceedings in the event that the Arbitration Agreement below is found to be unenforceable. This Agreement was drafted in the English language and this English language version of this Agreement is the original, governing instrument of the understanding between the Parties. In the event of any conflict between the English version of this Agreement and any translation, the English version will prevail.Arbitration Agreement. READ SECTION 13 CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH LICENSEE CAN SEEK RELIEF FROM HYPER. This Arbitration Agreement applies to and governs any dispute, controversy, or claim between the Parties that arises out of or relates to, directly or indirectly: (i) this Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, and enforceability thereof; (ii) access to or use of the Software, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Software; or (iv) any other aspect of Licensee’s relationship or transactions with Hyper, directly or indirectly, as a User or consumer (each, a “Claim,” and, collectively, “Claims”). This Arbitration Agreement will apply, without limitation, to all Claims that arose or were asserted before or after Licensee’s consent to this Agreement.Licensee can reject and opt out of this Arbitration Agreement within thirty (30) days of accepting this Agreement by emailing Hyper at [support@hyper.online] with Licensee’s full, legal name and stating Licensee’s intent to opt out of this Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of this Agreement, including the provisions regarding controlling law or the courts in which any disputes must be brought.For any Claim, Licensee will first contact Hyper at [support@hyper.online] and attempt to resolve the Claim with Hyper informally. In the unlikely event that the Parties have not been able to resolve a Claim after sixty (60) days, the Parties agree to resolve such Claim exclusively through binding arbitration by JAMS before a single arbitrator (the “Arbitrator”), under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement will control. The arbitration will be conducted in the U.S. county where Licensee lives (if applicable) or San Francisco County, California, unless the Parties agree otherwise. If Licensee is using the Software for commercial purposes, each party will be responsible for paying any JAMS filing and administrative fees and Arbitrator fees in accordance with the Rules, and the award rendered by the Arbitrator will include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. If Licensee is an individual using the Software for non-commercial purposes: (i) JAMS may require Licensee to pay a fee for the initiation of Licensee’s case, unless Licensee applies for and successfully obtains a fee waiver from JAMS; (ii) the award rendered by the Arbitrator may include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses; and (iii) Licensee may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this would not absolve Licensee of its commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. The Parties agree that the Arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any disputes relating to the scope, interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator will also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement are, or whether any provision of this Agreement is, unconscionable or illusory, and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.NOTHING IN THIS ARBITRATION AGREEMENT WILL BE DEEMED AS: PREVENTING HYPER FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF HYPER’S DATA, CONFIDENTIAL INFORMATION, OR INTELLECTUAL PROPERTY RIGHTS; OR PREVENTING LICENSEE FROM ASSERTING CLAIMS IN A SMALL CLAIMS COURT, PROVIDED THAT LICENSEE’S CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this Arbitration Agreement, which will remain in force, or on the Parties’ ability to compel arbitration of any remaining Claims on an individual basis pursuant to this Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver below is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent Licensee from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement will be arbitrated under its terms, and the Parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration.Class Action/Jury Trial Waiver. BY ENTERING INTO THIS AGREEMENT, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER. THE FOREGOING APPLIES REGARDLESS OF WHETHER LICENSEE HAS OBTAINED OR USED THE SOFTWARE FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES. THIS CLASS ACTION/JURY TRIAL WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS. THE PARTIES AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON A PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER THIRD-PARTY USERS OF THE SOFTWARE. Miscellaneous.In no event shall Hyper be liable to Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Hyper’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities.All notices, requests, consents, claims, demands, waivers, and other communications (each, a “Notice”) hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Without limiting the foregoing, Notices to Hyper must be sent to: 2261 Market Street, Unit 4025, San Francisco, California, USA, 94114.This Agreement constitutes the sole and entire agreement between Licensee and Hyper with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Hyper’s prior written consent, which consent Hyper may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Hyper’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15(d) is void. Hyper may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.For purposes of this Agreement, (i) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.