Mogimo, Inc. DBA HyPR
Terms of Service
(Effective as of August 1, 2017)
- Acceptance of Terms.
Mogimo Inc. d/b/a HYPR (“HYPR” or “we”) provides its Service (as defined below) to you through its web site located at http://www.hyprbrands.com/ (the “Site”), subject to this Terms of Service agreement (“TOS”) and the terms of any subscription agreement (“Subscription Agreement”) separately executed by you and HYPR. By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. In the event of a conflict of terms between this TOS and your Subscription Agreement, the terms of your Subscription Agreement shall govern your relationship solely with respect to any such conflicting terms. If you are entering into this TOS or the Subscription Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS and the Subscription Agreement, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service. As part of the registration process, you will identify one or more administrative user names and passwords for your account (“Account”).
HYPR may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your Account or by posting a notice on the Site. You can review the most current version of this TOS at any time at http://hyprbrands.com/terms-of-service/. The revised terms and conditions will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to email@example.com. If you are subject to a Subscription Agreement, your account may only be cancelled pursuant to the terms of such Subscription Agreement, regardless of any changes to this TOS. In the event that a change to this TOS would materially alter the economics of your bargain under any Subscription Agreement, you may, within 30 days or learning of the change (or logging into your Account), request a copy of the TOS which was in place at the time of entering your Subscription Agreement and the parties shall honor the terms of such prior version of the TOS, in good faith.
2. Description of Service.
The “Service” includes (a) the Site, (b) HYPR’s services and related technologies to provide clients with in-depth audience demographics of social influencers and a host of management tools for running influencer related campaigns on social media,(c) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing and (d) API access to any data provided through the Site or related sites (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this TOS.
3. General Conditions/ Access and Use of the Service.
Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to HYPR. Unless otherwise indicated in your Subscription Agreement, You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; including without limitation, the development of a competing platform or access point for use or access to HYPR data, (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks, or (d) store on any network, hard drive, computer or cloud-storage any data or information obtained from the Services or the Site for any period of more than 14 days. You shall comply with any codes of conduct, policies or other notices HYPR provides you or publishes in connection with the Service, and you shall promptly notify HYPR if you learn of a security breach related to the Service.
Any software that may be made available by HYPR in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to access the Service by any means other than through the interface that is provided by HYPR for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of HYPR or any third party is granted to you in connection with the Service.
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”).
You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. HYPR reserves the right to access your account in order to respond to your requests for technical support and to investigate suspicious activity. By providing Your Content through the Service, you hereby do and shall grant HYPR a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. HYPR has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that HYPR may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to HYPR’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. HYPR will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content. The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. HYPR has no control over such sites and resources and HYPR is not responsible for anything contained therein or any result from use thereof. You further acknowledge and agree that HYPR will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that HYPR is not liable for any loss or claim that you may have against any such third party.
You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in HYPR’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
The failure of HYPR to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and HYPR, even though it is electronic and is not physically signed by you and HYPR, and it governs your use of the Service.
HYPR reserves the right to use your name and/or your business name as a reference for marketing or promotional purposes on HYPR’s website and in other communication with existing or potential HYPR customers. You further agree that if you are using the API Services, you will place the HYPR logo or company name in a visible spot on your website homepage and anyplace where HYPR data is displayed, unless otherwise agreed by separate agreement. To decline HYPR this right you must email firstname.lastname@example.org stating that you do not wish to be used as a reference or do not wish to credit HYPR as a source for API data. Unless otherwise provided in a separate agreement, HYPR reserves the right to terminate your access to the Services for violation of this section.
Subject to the terms hereof, HYPR may but has no obligation to provide technical support services, through email in accordance with our standard practice.
You acknowledge that HYPR may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on HYPR’s servers on your behalf. You agree that HYPR has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that HYPR reserves the right to terminate accounts that are inactive for any period of time. You further acknowledge that HYPR reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Service includes certain services that are available via a mobile device, including the ability to browse the Service and the Site from a mobile device and the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding HYPR and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.
The Services contain data aggregated by HYPR from multiple sources. However, the nature of the data and the collection processes limits the ability to independently verify and/or validate the data and all data is subject to change at any time without notice. Neither HYPR nor its data sources warrant the comprehensiveness, completeness, accuracy or adequacy of the data for any purpose. HYPR, its sources and their directors, employees, contractors, and agents disclaim all warranties, expressed or implied, as to any matter whatsoever and shall not be responsible for any loss or damage that may directly or indirectly arise as the result of the use of the data contained in the Service.
To the extent the Service or any portion thereof is made available for any fee, you will be required to enter into a Subscription Agreement and select a payment plan, and provide HYPR information regarding your credit card or other payment instrument. You represent and warrant to HYPR that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay HYPR the amount that is specified in the Subscription Agreement and payment plan in accordance with the terms of such plan and this TOS. Unless otherwise indicated in a Subscription Agreement, You hereby authorize HYPR to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable subscription agreement and payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let HYPR know within sixty (60) days after the date that HYPR invoices you. We reserve the right to change HYPR’s prices. If HYPR does change prices, HYPR will provide notice of the change on the Site or in an email to you, at HYPR’s discretion, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. HYPR may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by HYPR thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on HYPR’s net income.
5. Free Trials.
From time to time, HYPR may offer free trial access to the Services for first time users of the Site (the “Free Trial”) for some period of time. The Free Trial is strictly for use by first-time users to test the product and cannot be used for commercial purposes. At the end of the Free Trial, you will no longer have access to any data or account details and HYPR may terminate the Free Trial at any time with or without notice to you. Attempts to manipulate the Free Trial for commercial use by signing up under different account names or email addresses will be flagged and removed. Generating reports, derivative data or other presentations to third parties for commercial gain during any Free Trial period is a serious violation of HYPR’s intellectual property rights and will subject the violator to fines and potential legal action. IN THE EVENT YOU VIOLATE THIS SECTION 5, YOU AGREE TO PAY HYPR AN AMOUNT EQUAL TO $5,000 PER OCURRENCE (THE “LIQUIDATED DAMAGES”). THE PARTIES INTEND THAT THE LIQUIDATED DAMAGES CONSTITUTE COMPENSATION FOR OBTAINING PROPRIETARY DATA WHICH IS OTHERWISE ONLY AVAILABLE FOR PURCHASE, AND NOT A PENALTY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE HARM CAUSED BY YOUR BREACH WOULD BE IMPOSSIBLE OR VERY DIFFICULT TO ACCURATELY ESTIMATE AT THE TIME OF CONTRACT, AND THAT THE LIQUIDATED DAMAGES ARE A REASONABLE ESTIMATE OF THE ANTICIPATED OR ACTUAL HARM THAT MIGHT ARISE FROM YOUR BREACH. YOUR PAYMENT OF THE LIQUIDATED DAMAGES IS YOUR SOLE LIABILITY AND ENTIRE OBLIGATION AND HYPR’S EXCLUSIVE REMEDY FOR YOUR BREACH OF THIS SECTION 5.
6. Representations and Warranties.
You represent and warrant to HYPR that (i) you have full power and authority to enter into this TOS and the Subscription Agreement; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow HYPR to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and HYPR’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
Unless otherwise provided by Subscription Agreement, You have the right to terminate your account at any time by sending a cancellation request to email@example.com. If you are subject to a Subscription Agreement, you may not terminate your account within the term of the subscription except as specifically provided therein. Subject to earlier termination as provided below, HYPR may terminate your Account and this TOS at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, HYPR may also terminate this TOS immediately if you breach any of the terms or conditions of this TOS. HYPR reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) for any reason at all and may do so without notice in case of your breach of the TOS or any other agreement between you and HYPR. All of Your Content on the Service (if any) may be permanently deleted by HYPR upon any termination of your account in its sole discretion. If HYPR terminates your account without cause and you have signed up under a Subscription Agreement, HYPR will refund the pro-rated, unearned portion of any amount that you have prepaid to HYPR for such Service. However, all accrued rights to payment shall survive termination of this TOS.
Upon termination of any Subscription Agreement or any Free Trial, you agree that you will delete any and all HYPR Data obtained from the Services or the Site within a reasonable period of time, not to exceed 72 hours. For the avoidance of doubt, unauthorized storage or access to HYPR’s data following termination of a subscription or trial period is a violation of this TOS and your Subscription Agreement.
8. DISCLAIMER OF WARRANTIES.
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by HYPR or by third-party providers, or because of other causes beyond our reasonable control. HOWEVER, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND HYPR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT HYPR DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM HYPR OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL HYPR BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS AND THE SUBSCRIPTION AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS AND THE SUBSCRIPTION AGREEMENT.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, HYPR’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
To the maximum extent permitted by applicable law, you hereby release and waive all claims against HYPR, and its subsidiaries, affiliates, officers, agents, licensors, co-branders or other partners, and employees from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising from or in any way related to your use of the HYPR Services. If you are a California resident, you waive your rights under California Civil Code 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true and you accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights and benefits which you may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.
You shall defend, indemnify, and hold harmless HYPR from and against any third-party claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. HYPR shall provide notice to you of any such claim, suit or demand. HYPR reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting HYPR’s defense of such matter.
11. U.S. Government Matters.
You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by HYPR on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
12. Intellectual Property.
You acknowledge and agree that the copyright and any other intellectual property rights to any data and/or information obtained by using the Services (“HYPR Data”) is and shall remain with HYPR. You acknowledge that such HYPR Data, regardless of form or format, is proprietary to HYPR, including (a) works of original authorship such as compiled information containing HYPR’s selection, arrangement and coordination and expression of such information or pre-existing material it has created, gathered or assembled; (b) confidential or trade secret information; and (c) information that has been created, developed and maintained by HYPR at great expense of time and money such that misappropriation or unauthorized use by others for commercial gain would unfairly and irreparably harm HYPR. You shall not commit or permit any act or omission by your agents, employees or any third party that would impair HYPR’s proprietary and intellectual property rights in HYPR Data. You agree to notify HYPR immediately upon obtaining any information regarding a threatened or actual infringement of HYPR’s rights.
You may not assign this TOS or any Subscription Agreement without the prior written consent of HYPR, but HYPR may assign or transfer this TOS, in whole or in part, without restriction.
14. Social Networking Services.
If any provision of this TOS or the Subscription Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS or the Subscription Agreement will otherwise remain in effect and enforceable. Except with respect to any Subscription Agreements executed by the parties, both parties agree that this TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS or any Subscription Agreement and you do not have any authority of any kind to bind HYPR in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given once sent.
16. Governing Law.
This TOS and any Subscription Agreement shall be governed by the laws of the State of New York without regard to the principles of conflicts of law. Unless otherwise elected by HYPR in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of New York for the purpose of resolving any dispute relating to your access to or use of the Service.
To understand how HYPR collects and uses personal information, please visit: https://www.hyprbrands.com/privacy_policy/.