Last updated: March 11, 2018
THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT REQUIRE YOU TO ARBITRATE ALL DISPUTES YOU HAVE WITH HYPE ON AN INDIVIDUAL BASIS. PLEASE SEE SECTION 17 FOR MORE INFORMATION ABOUT THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND HYPE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS WIDE ARBITRATION.
a) Acceptance of Terms. By accessing and/or using the Site and/or Hype Experiences, or clicking any button or replying to an email to indicate your consent, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms in writing. If you do not agree to these Terms, do not use the Site or any Experiences.
b) Amendment of Terms. Hype may amend the Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms. Your continued access to or use of the Site or Experiences after such posting constitutes your consent to be bound by the Terms, as amended.
2. Hype Platform
a) Hype Platform. The Hype platform enables consumers to discover, reserve, schedule, access and attend a wide range of Experiences offered and operated by event organizers, music venues, restaurants, theatres, clubs, gyms, trainers, venues or other third parties (collectively, "Venues"). Hype itself is not a gymnasium, place of amusement or recreation, health club, facility, entertainment studio or similar establishment and does not own, operate or control any of the Experiences that are offered at or through such facilities.
b) Content. Our Site allows you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material ("Content"). You are responsible for the Content that you post to the Site, including its legality, reliability, and appropriateness. By posting Content to the Site, you grant us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Site. You retain any and all of your rights to any Content you submit, post or display on or through the Site and you are responsible for protecting those rights. You agree that this license includes the right for us to make your Content available to other users of the Site, who may also use your Content subject to these Terms. You represent and warrant that: (i) the Content is yours (you own it) or you have the right to use it and grant us the rights and license as provided in these Terms, and (ii) the posting of your Content on or through the Site does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person.
c) Membership Options. There are a number of ways to participate in Experiences through Hype, such as various subscription plans, promotional plans, digital Experiences, and non-subscription membership. These options consist of different experiences, services and features and may be subject to additional and differing conditions, prices, policies and limitations. We reserve the right to modify, terminate or otherwise amend our offered options and plans at any time in our discretion. From time to time we may permit non-subscribers to access certain Experiences, content or features for a cost or at no cost. Hype makes no commitment on the quantity, availability, type or frequency at which such Experiences, content and features will be available to non-subscribers and may modify, discontinue, remove or suspend access at any time and for any reason in our sole discretion.
d) Membership Plans. To enjoy full access to the Site and Experiences, you need to create your Hype profile and get approved as Hype Influencer. A membership starts on the date that you sign up for a membership and submit payment via a valid Payment Method (defined below) or reactivate a pre-existing subscription. Unless we otherwise communicate a different time period to you at the time of sign up or otherwise (such as a multi-month commitment plan). Your Hype membership automatically renews each month, and we will automatically bill the monthly subscription fee to your Payment Method each month, until your subscription is cancelled or terminated. For example, if you purchase your Hype subscription on April 5, your subscription will automatically renew on May 5 (as further explained in "Subscription Cycles," below). You must provide us with a current, valid, accepted method of payment ("Payment Method"). We may update the accepted methods from time to times. If you add a subscription to your base subscription or if you upgrade or downgrade to a different subscription, all such subscriptions will be governed by these Terms and will continue indefinitely until canceled or terminated.
e) Use of complimentary experiences, perks and press passes. Depending on the membership plan you choose and your Hype Influencer profile, you will receive access to a number of available Hype experiences. You can choose your Hype experiences and attend them free of charge. Your membership and member service fee is not a ticket to any of Experiences, but covers a service fee for customer support, your access to Hype’s social media, your access to Hype’s editorial platform, arranging of your press passes, arranging of your complimentary tickets, arranging of your dietary requirements, arranging of your press passes and management of your representation as Hype Influencer to third parties. Every time you cover Hype’s membership fee or concierge service fee and select your Hype Experience, our team member will get in touch with organizer and arrange your visit for you. You will then receive a final confirmation, complimentary tickets or will be added on the guest list. Hype reserves the right to select each member by number of following, readership, quality of content and other features related to editorial content. Selected and approved Hype member can attend and review Hype Experiences free of charge and receive complimentary tickets. Hype member only covers Hype member fee or Hype concierge service fee for the service Hype is providing including access to the platform, customer support, arranging complimentary tickets, communication via email, chat or phone and other services.
f) Experiences expire at the end of each Subscription Cycle, meaning that any experiences you don’t use during the applicable Subscription Cycle will not roll over into future months, unless we expressly communicate otherwise. If your subscription is canceled or terminated your unused experiences will expire immediately. When your cycle automatically renews for the next month, you’ll automatically receive your new allotment of experiences. If you have any questions about how to use your credits, please contact us on email@example.com and we can help you.
Hype membership has no cash value or any other value outside of the Hype platform and are not redeemable for cash, tickets or privileges. You may not transfer, trade, gift or otherwise exchange Hype membership.
Hype does not guarantee the availability of particular Venues, locations, Experiences, services, experiences, content, inventory, spots or other features, and availability may change over time and at any time (including during the course of any given Subscription Cycle). The type, quantity, credits, allocation and availability of Venues, experiences, and other inventory offered, are determined by Hype in its sole discretion. Hype takes certain steps to release, promote and otherwise make available spots and inventory at varying times and in an ongoing and evolving way.
g) Non-Subscription Purchases. Hype may permit you to attend certain Experiences through the Site, in addition to your subscription or without having a subscription. You must have a Hype profile to attend any of the Experiences or get access to post on Hype’s social media and editorial sections. If you’re not a monthly subscriber, you will be responsible to cover Hype’s member concierge service fee for arranging your passes, complimentary tickets, perks, special visits, review events. This fee is used to cover Hype’s service costs, booking costs, research costs, costs related to creating additional promotional material, arranging costs and customer support costs. Hype is not responsible for selling you a ticket to any given experience or event. Hype can only offer you a service of arranging a complimentary ticket, a special pass or credits to attend the Experience, based on your Hype profile, following on social media, views on your blog and other content. Hype operates as a third party, which represents your profile and arranges complimentary visits for you. Hype is not selling tickets for any complimentary experiences, press passes or promotions. By covering Hype’s service fee you acknowledge that you are paying for covering Hype’s service fee to arrange your pass, visit, complimentary ticket and customer support. Hype is not responsible for selling you a ticket for the experience and Hype’s service fee is not a ticket to any Experience.
h) Hype Account. Your Hype account is personal to you and you agree not to create more than one account. You cannot transfer or gift Experiences or perks to third parties or allow third parties to use your Hype account, including other Hype users. You must not use or exploit the Site and/or Experiences for commercial purposes. We continually update and test various aspects of the Hype platform. We reserve the right to, and by using the Site and/or Experiences you agree that we may, include you in or exclude you from these tests without notice. You understand and agree that Hype may take actions we deem reasonably necessary to prevent fraud and abuse.
You agree that the information you provide to Hype at sign up and at all other times will be true, accurate, current, and complete and that you will keep this information accurate and up-to-date at all times. When you sign up, you will be asked to create a password. You are solely responsible for all activity that occurs under your account, including any activity by unauthorized users. To use the Site you must have access to the Internet and may be required to download a Hype mobile application to use some or all of Hype features. You are solely responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Site and Experiences.
i) Eligibility. The availability of all or part of our Site and/or Experiences may be limited based on geographic, age, or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to Hype or may terminate your subscription at any time based on these criteria. For example, you must be 18 years of age or older to use the Site and/or experiences and/or purchase a Hype membership. You further understand that the Site and/or Experiences may not be available in every geography.
THESE TERMS ARE ONLY APPLICABLE TO USERS IN THE UNITED STATES AND SEPARATE TERMS APPLY TO USERS IN OTHER JURISDICTIONS. THE SITE IS NOT AVAILABLE TO ANY USERS SUSPENDED OR REMOVED FROM THE SITE BY HYPE. BY USING THE SITE, YOU REPRESENT THAT YOU ARE A UNITED STATES RESIDENT, AT LEAST 18 YEARS OLD AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED. THOSE WHO CHOOSE TO ACCESS THE SITE DO SO AT THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL LOCAL RULES INCLUDING, WITHOUT LIMITATION, RULES ABOUT THE INTERNET, DATA, EMAIL OR OTHER ELECTRONIC MESSAGES, OR PRIVACY.
j) Communications: By providing your information or creating an account, you agree that Hype may contact you by email, direct mail, telephone or text messages at any of the addresses or phone numbers, as applicable, provided by you or on your behalf in connection with a Hype account, including for marketing purposes. You may opt-out of marketing emails via the provided unsubscribe link or otherwise opt-out by contacting us at any time.
3. Copyright Policy
We respect the intellectual property rights of others. It is our policy to respond to any claim that Content posted on the Site infringes the copyright or other intellectual property infringement ("Infringement") of any person.
If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Site infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Copyright Agent with the information listed in the below DMCA Notice in writing. Upon receipt of the Notice as described below, Behype Inc. will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Sites. You acknowledge that if you fail to comply with all of the requirements listed below, your Notice may not be valid.
DMCA Notice of alleged infringement (“notice”)
1. Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this Notice - you may provide a representative list of the copyrighted works that you claim have been infringed.
2. Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site(s) where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice: “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).” “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Behype Inc’ Designated Copyright Agent:
237 Keaney St. 94108, San Francisco,
California, United States
For clarity, only DMCA notices should go to the Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Behype Inc. customer service (firstname.lastname@example.org).
4. Intellectual Property
The Site and its original content (excluding Content provided by users), features and functionality are and will remain the exclusive property of Behype Inc. and its licensors. The Site is protected by copyright, trademark, and other laws of both the United States of America and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Behype Inc..
When you upload content, you give to Behype Inc. a worldwide, non-exclusive, royalty-free, transferable licence (with right to sub-licence) to use, reproduce, distribute, prepare derivative works of, display, and perform that Content in connection with the provision of the Site and otherwise in connection with the provision of the Site and Behype Inc. business. 5. Links to Other Websites
Our Site may contain links to third-party web sites or services that are not owned or controlled by Behype Inc..
Behype Inc. has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that Behype 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 web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.
6. Prohibited Conduct
Without limiting the prohibitions and restrictions found elsewhere throughout the Terms, you agree not to:
● Harass, threaten, stalk, disrupt or defraud users, members or staff of Hype or Venues or any other person, or otherwise create or contribute to an unsafe, harassing, threatening or disruptive environment;
● Act in a deceptive or fraudulent manner by, among other things, impersonating another person or access another user’s account without that person’s permission;
● Share Hype passwords with any third party or encourage any other user to do so;
● Permit anyone to use any experiences booked under your own membership, including other members;
● Reserve or cancel any Experience directly with a Venue, rather than through the Site, Reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast, use for commercial purposes or otherwise exploit any portion of the Site;
● Misrepresent the source, identity, or content of information transmitted via the Site, including deleting the copyright or other proprietary rights or notices from any portion of the Site;
● Upload material (e.g. virus) that is damaging to computer systems or data of Hype or users of the Site or otherwise use the Site in any manner that could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Site;
● Upload copyrighted material that is not your own or that you do not have the legal right to distribute, display, and otherwise make available to others;
● Upload or send to Site users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;
● Decompile, reverse engineer or disassemble the Site, in whole or in part, except as may be permitted by applicable law;
● Link to, mirror or frame any portion of the Site;
● Cause or launch any program or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Site or unduly burdening or hindering the operation and/or functionality of any aspect of the Site;
● Attempt to gain unauthorized access to or impair any aspect of the Site or its related systems or networks or interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;
● Make unsolicited offers, advertisements, proposals, or send junk mail or “spam” to users;
● Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, any features that prevent or restrict use or copying of any content accessible through the Site, or any features that enforce limitations on the use of the Site or the content therein;
● Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site;
● Modify the Site in any manner or form, nor to use modified versions of the Site, including (without limitation) for the purpose of obtaining unauthorized access to the Site;
● Use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site;
● Use the Site for or in connection with any purpose that is unlawful or prohibited by these Terms.
Hype reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion. Upon termination, your right to use the Service will immediately cease. If you wish to terminate your account, you may simply discontinue using the Service. All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
EXPERIENCES AND ANY OTHER PRODUCTS AND SERVICES MADE AVAILABLE VIA THE SITE ARE PROVIDED BY THIRD PARTIES (AND THE DESCRIPTIONS OF THE FOREGOING POSTED ON THE SITE ARE PROVIDED BY SUCH THIRD PARTIES), NOT HYPE. YOU AGREE THAT YOUR USE OF THE SITE AND ATTENDANCE AT, PARTICIPATION IN, USE OF ANY EXPERIENCES IS SOLELY AT YOUR OWN RISK. WE DO NOT ASSUME ANY LIABILITY OR MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF, IN CONNECTION WITH OR WITH RESPECT TO THE SITE AND/OR EXPERIENCES.
IN NO EVENT SHALL HYPE BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USER’S ATTENDANCE, USE OF OR PARTICIPATION IN A EXPERIENCE, OR PRODUCT, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY. HYPE PROVIDES AND ORGANIZES ACCESS TO EXPERIENCES. HYPE IS NOT OTHERWISE CONNECTED TO, NOR IS AN AGENT OF ANY THIRD PARTY WITH WHICH A USER HAS MADE A RESERVATION. WITHOUT LIMITING ANYTHING HEREIN, HYPE DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY FOR A PARTICULAR PURPOSE, RELATED TO ANY EXPERIENCES, ACTIVITIES, OR OTHER SERVICES OFFERED BY ORGANIZERS VIA THE SITE.
UNLESS OTHERWISE EXPRESSLY STATED BY HYPE, ALL ASPECTS OF OR CONTENT OR FEATURES MADE AVAILABLE THROUGH THE SITE AND/OR EXPERIENCES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HYPE, ITS SUPPLIERS AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
UNLESS OTHERWISE EXPRESSLY STATED BY HYPE, HYPE, ITS SUPPLIERS AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE SITE AND /OR ANY EXPERIENCE IS SUTIABLE FOR YOU OR WILL MEET YOUR PERSONAL NEEDS, (II) REGARDING THE ADEQUACY OR SAFETY OF ANY EXPERIENCE OR RECOMMENDATION, (III) THAT THE SITE AND/OR ANY EXPERIENCE, OR ANY ASPECT THEREOF, WILL BE AVAILABLE OR PERMITTED IN YOUR JURISDICTION, (IV) THAT THE SITE, OR ANY ASPECT THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) REGARDING THE USE OF THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU UNDERSTAND AND AGREE ANY MATERIAL OR DATA THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY INJURY, LOSS OR DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
YOU UNDERSTAND THAT HYPE IS NOT A VENUE, PLACE OF AMUSEMENT OR RECREATION, HEALTH CLUB, FACILITY, FITNESS STUDIO OR SIMILAR ESTABLISHMENT AND THE EXPERIENCES THEY ARRANGE ACCESS FOR ARE OPERATED AND DELIVERED BY THE APPLICABLE VENUE AND NOT BY HYPE. HYPE IS NOT RESPONSIBLE FOR THE QUALITY OF ANY EXPERIENCE PROVIDED BY A VENUE OR THIRD PARTY (INCLUDING BUT NOT LIMITED TO THE FACILITY, INSTRUCTOR OR CURRICULUM). YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE EXPERIENCE OR RECOMMENDATIONS AVAILABLE ON OR THROUGH THE SITE AND/OR EXPERIENCES ARE RIGHT FOR YOU.
THE SITE IS CONTINUALLY UNDER DEVELOPMENT AND HYPE MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN RESEARCH MAY IMPACT RELATED ADVICE THAT APPEARS ON OR IN CONNECTION WITH THE SITE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE OR RECOMMENDATIONS CONTAINED IN OR THROUGH THE SITE AND/OR A EXPERIENCE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
THEREFORE, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU RELEASE, HYPE, ITS PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACT EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM ANY AND ALL RESPONSIBILITY, CLAIMS, ACTIONS, SUITS, PROCEDURES, COSTS, EXPENSES, DAMAGES AND LIABILITIES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR PARTICIPATION IN OR USE OF THE SITE AND/OR ATTENDANCE AT, PARTICIPATION IN, PURCHASE OF AND/OR USE OF ANY EXPERIENCE) INCLUDING BUT NOT LIMITED TO WITH RESPECT TO BODILY INJURY, PHYSICAL HARM, LOSS, ILLNESS, DEATH OR PROPERTY DAMAGE.
9. Limitation of Liability and Damages
NOTHING IN THESE TERMS (INCLUDING BUT NOT LIMITED TO THE “DISCLAIMERS” ABOVE AND LIMITATIONS OF LIABILITY BELOW) IS INTENDED TO EXCLUDE OR LIMIT ANY LIABILITY THAT WE MAY HAVE TO YOU BY OPERATION OF APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM OUR NEGLIGENCE, OR OUR FRAUD OR FRAUDULENT MISREPRESENTATION. IT IS ACKNOWLEDGED HOWEVER, THAT WE ACCEPT NO LIABILITY FOR THE NEGLIGENCE OF THIRD PARTIES, INCLUDING ANY VENUE WHERE YOU MAY ATTEND EXPERIENCES. ADVICE ABOUT YOUR LEGAL RIGHTS IS AVAILABLE FROM YOUR LOCAL CITIZENS' ADVICE BUREAU OR TRADING STANDARDS OFFICE.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL HYPE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THE USE OF THE SITE, INCLUDING THOSE THAT RESULT FROM THE USE OR THE INABILITY TO USE THE MATERIALS ON THE SITE, OR ANY OTHER INTERACTIONS WITH HYPE, EVEN IF HYPE OR A HYPE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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, HYPE’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
10. Venue Waivers and Terms
Members taking Experiences are deemed to agree to the liability waivers and terms of individual Venues. Your participation in any Experience may be subject to addition policies, rules or conditions of the applicable Venue and you understand and agree that you may not be permitted to reserve or attend Experiences or services if you do not comply with these Terms or the policies of the Venues or as otherwise determined by a Venue. If you have questions about a Venue’s waiver or other terms, please see the applicable Venue’s website or contact the Venue directly.
11. Dispute Resolution
Generally, if a dispute arises between Hype and you, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Hype agree that the parties will resolve any claim or controversy at law or equity that arises out of this Agreement or the Site (a “Claim”) in accordance with one of the subsections below or as you and we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
a) Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions, consistent with the Federal Arbitration Act (to the extent permitted by applicable law).
b) Assignment. We may assign our rights and obligations under these Terms. The Terms will inure to the benefit of our successors, assigns and licensees.
c) Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
d) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
e) Entire Agreement. This (including the documents referred to herein), as each may be amended as set forth herein, is the entire agreement between you and Hype relating to the subject matter herein.
f) Disclosures. The services hereunder are offered by Behype Inc, located at 237 Keaney St. San Francisco, California, The United States of America.
A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of these Terms will in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of these Terms will not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms. Further, in the event we choose to grant an exception to these Terms, any such exception is in our sole discretion and does not entitle you or anyone else to any exceptions in the future for similar circumstances.
h) Notices. Notices will be sent to you at the email address that you provided to Hype during the registration process. Notices may be sent to us here. Notice will be deemed given 24 hours after email is sent, unless the sender receives an automatic, electronic notification that such notice was not successfully received. Without prejudice to the foregoing, we may serve you legal notice by post to the address provided during the registration process. In such case, notice will be deemed given three days after the date of posting.
13. Arbitration Agreement
PLEASE READ THE FOLLOWING CAREFULLY:
a) Purpose. This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between you and Hype. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial.
Please read this Arbitration Agreement carefully. It provides that all disputes between you and Hype shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Arbitration Agreement, "Hype" means Hype and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term "Dispute" means any dispute, claim, or controversy between you and Hype regarding any aspect of your relationship with Hype, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
b) Pre-Arbitration Dispute Resolution. Before initiating any Dispute, whether in court or arbitration, you must first give Hype an opportunity to resolve the Dispute by mailing written notification to Hype, Legal Department, 237 Keaney St, San Francisco, CA 94108. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If Hype does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
d) Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by applicable federal law, including but not limited to the Federal Arbitration Act ("the FAA"), and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
e) Location of Arbitration. Arbitration shall take place in San Francisco, but it may proceed by telephone if you so choose.
f) Payment of Arbitration Fees and Costs. Hype will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law.
g) Class Action Waiver. Any Disputes arising out of or relating to your use of the Site and/or attendance at, participation in or use of Experiences, any purchase you make on or through the Site, any information you provide via the Site, and/or these Terms (including the formation, performance, or alleged breach), shall be submitted individually by you and will not be subject to any class action or representative status. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) . Neither you, nor any other Member of Hype and/or user of Hype services, can be an experience representative, experience member, or otherwise participate in an experience, representative, consolidated or private attorney general proceeding with respect to the matters set forth in the first sentence of this paragraph. You agree that this Class Action Waiver is material and essential to the arbitration of any dispute between you and Hype and is non-severable from the Arbitration Agreement. If any portion of this Class Action Waiver is limited, voided, or cannot be enforced, then the Arbitration Agreement shall be null and void. You understand that by agreeing to this Class Action Waiver, you may only pursue Dispute against Hype in an individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
h) Limitation of Procedural Rights. You understand and agree that, by entering into this Arbitration Agreement, you and Hype are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and Hype might otherwise have a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). By using the Hype Site or any Class, product or services, or otherwise accepting these Terms, you are entering into this Arbitration Agreement, and you give up those procedural rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
i) Severability. If any clause within this Arbitration Agreement, other than the Class Action Waiver clause above, is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable and the Dispute will be decided by a court of competent jurisdiction.
j) Continuation. This Arbitration Agreement shall survive the termination of your contract with Hype and your use of the Hype Site, Experiences and services.