Hypester Member Agreement
This Member Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service (as defined below) and is an agreement between Hypester.org (“Hypester,” “we,” “us,” or “our”) and you or the entity you represent (“you“). This Agreement takes effect when you sign a Challenge Student Order or, if earlier, when you use the Service (the “Effective Date“). You represent to us that you are lawfully able to enter into contracts (e.g., you are age of 18 or older). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 13 for definitions of certain capitalized terms used in this Agreement.
1. Use of the Service.
1.1 Generally. You may access and use the Service in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Service, including the Policies as defined in Section 13.
1.2 Your Account. To access the Service, you must create an account associated with a valid e-mail address. You may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including a spouse) and, except to the extent caused by our breach of this Agreement, we and our affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 6.
1.3 Third Party Content. Third Party Content, such as newsletters, information provided by our affiliates or third parties, software applications or services provided by our affiliates or third parties, may be made available directly to you by other companies or individuals with or without separate terms and conditions or separate fees and charges. Because we may not have confirmed, screened or tested any Third Party Content, your use of any Third Party Content is at your sole risk.
We may change, discontinue, or deprecate any of the Service (including the Service as a whole) or change or remove features or functionality of the Service from time to time. We will notify you of any material change to or discontinuation of the Service.
3. Data Privacy.
4. Fees and Payment.
4.1 Payment. Hypester will charge the subscription fee and any other additional fees or charges you authorize to the credit card provided by you.
4.2 Credit Card Authorization. By authorizing Hypester to charge a credit card for the fees associated with your Service, you are authorizing Hypester to automatically continue charging that card (or any replacement card if the original card is renewed, lost, stolen, or changed for any reason by the card issuer, and the issuer informs Hypester of the new replacement card account) for all fees or charges associated with your subscription to the Service including any renewal fees as described below. Credit cards that are declined for any reason are subject to a thirty-dollar ($30.00) declination fee. Hypester may elect to interrupt Service for fees that reach ten (10) days past due. Service interrupted for nonpayment is subject to a twenty percent (20%) out of outstanding amount as a reconnection charge. Accounts not paid by due date are subject to a ten dollar ($10) late fee. Accounts that are not collectable by Hypester may be turned over to an outside agency for collection. If your account is turned over for collection, you agree to pay Hypester a processing and collection fee the lesser of one hundred and fifty dollars ($150.00) or as allowed by applicable law.
4.3 Automatic Renewal of Subscription. When you subscribe to the Service your subscription will be set to automatically renew upon its expiration. This means that unless you cancel the Service by providing written notice at least thirty (30) days prior to its expiration, your Service will automatically renew for the same term. At the time of renewal, we will charge your credit card, or invoice you, the then-current fees to renew the Service.
4.4 Cancellations and Refunds. All fees and charges paid by you in relation to the Service are nonrefundable, except (i) you may cancel this Agreement at any time prior to midnight of the third business day as provided for in your Student Challenge Order or (ii) if we terminate this Agreement for convenience. Following cancellation, Hypester reserves the right to (i) limit or restrict access to the Service and (ii) delete all Your Content.
4.5 Changes in Price. Hypester may, at any time, change the price of the Service or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during an existing subscription term for the Service will apply to subsequent subscription terms and to all new members after the effective date of the change. If you do not agree to any such price changes, then you must cancel your account and stop using the Service. Your continued use of the Service after the effective date of any such change shall constitute your acceptance of such change.
4.6 Taxes. Charges for Services hereunder do not include any federal, state, local or foreign taxes, duties or levies of any nature (“Taxes”). Any Taxes required to be paid by Hypester as a result of the Service rendered hereunder (other than Taxes based on Hypester’s income) shall be billed to and paid by you.
4.7 Fee Disputes. You agree that if there are problems or questions regarding the Service that you will contact Hypester for assistance and not dispute any charges from Hypester unless you terminate for breach as provided in this Agreement. You agree to inform Hypester of any credit card information changes, including expiration date. You represent and warrant that you are legally authorized to enter into Agreement including use of the credit associated with the account. You agree to provide Hypester with at least thirty (30) days prior written notice to request termination of any recurring credit card authorization and transition to another form of billing.
5. Temporary Suspension.
5.1 Generally. We may suspend your right to access or use any portion or all of the Service immediately upon notice to you if we determine:
(a) your use of or registration for the Service (i) poses a security risk to the Service or any third party, (ii) may adversely impact the Service or the systems or Content of any other Hypester customer, (iii) may subject us, our affiliates, or any third party to direct or indirect liability (e.g. breach of confidentiality or non-disparagement), or (iv) may be fraudulent;
(b) you are in breach of this Agreement, including if you are delinquent on your payment obligations for more than 15 days; or
(c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any investigation by any agency on your trading or other securities related activities, bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
5.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Service:
(a) you remain responsible for all fees and charges you agreed to as of the Effective Date;
(b) you will not be entitled to any credit for any period of suspension; and
(c) we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Agreement.
Our right to suspend your use the Service is in addition to our right to terminate this Agreement pursuant to Section 6.2.
6. Term; Termination.
6.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with Section 6.2.
(a) Termination for Convenience. You may terminate this Agreement for any reason by (i) providing us written notice and (ii) closing your account for which we provide you Service and for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you 30 days advance notice.
(b) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement for cause upon ten (10) days advance written notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 10 day notice period.
(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you results in a suspension described in Section 6.1, (B) if our relationship with a third party partner who provides material elements we use to provide the Service expires, terminates or requires us to change the way we provide these elements as part of the Service, (C) if we believe providing the Service could create a substantial economic or technical burden or material security risk for us, (D) in order to comply with the law or requests of governmental entities, or (E) if we determine use of the Service by you or our provision of any of the Services to you has become impractical or unfeasible for any legal or regulatory reason.
6.3 Effect of Termination.
Generally, upon any termination of this Agreement:
(a) all your rights under this Agreement immediately terminate;
(b) you remain responsible for all fees and charges pursuant to Section 4;
(c) you will immediately return or, if instructed by us, destroy all Hypester Content in your possession; and
(d) Sections 4.1, 4.2, 4.6, 6.3, 7 (except the license granted to you in Section 7.4), 8, 9, 10, 11, 12, and 13 will continue to apply in accordance with their terms.
7. Proprietary Rights.
7.1 Your Content. You or your licensors own all right, title, and interest in and to Your Content. Except as provided in this Section 7, we obtain no rights under this Agreement from you or your licensors to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Service to you. We may disclose Your Content to provide the Service to you or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).
7.2 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Your Submissions; (b) you have all rights in Your Content and Your Submissions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content, Your Submissions of Your Content, Your Submissions or the Service will violate the Acceptable Use Policy.
7.3 Service License. As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Service. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term: (i) access and use the Services solely in accordance with this Agreement; and (ii) use the Hypester Content solely in connection with your permitted use of the Services. Except as provided in this Section 7.3, you obtain no rights under this Agreement from us or our licensors to the Service, including any related intellectual property rights.
7.4 License Restrictions. You may not use the Service in any manner or for any purpose other than as expressly permitted by this Agreement. You may not, or may not attempt to: (a) modify, alter, tamper with, or otherwise create derivative works of any intellectual property included in the Service, (b) reverse engineer, disassemble, or decompile the Service, (c) access or use the Service in a way intended to avoid incurring fees,(d) resell or sublicense the Service, (e) copy the look-and-feel or functionality of the Hypester Marks or Hypester Site; (f) remove any Hypester Marks without our prior written consent; (g) use, redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to, and/or exploit, the Services for commercial purposes, or in a commercial manner; or (g) use our Service in any way that is not in compliance with all applicable laws, regulations and government authorizations, including but not limited to securities laws, export control, copyright, trademarks, secrecy, defamation, decency, and privacy related laws, regulations and authorizations. All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service you have used.
7.5 Suggestions. If you provide any Suggestions to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
8.1 General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of, relating to, or concerning: (a) your use of the Service; (b) breach of this Agreement or violation of applicable law by you; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and a third party. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
8.2 Process. We will promptly notify you of any claim subject to Section 8.1, but our failure to promptly notify you will only affect your obligations under Section 9.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
9.1 General. THE SERVICE IS PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
9.2 Financial and Other. NEITHER HYPESTER, INDIVIDUALLY, NOR ITS WEBSITES INCLUDING, BUT NOT LIMTED TO THE HYPESTER SITE, NOR ANY OF ITS OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, INDEPENDENT CONTRACTORS, OR SUBCONTRACTORS ARE, IN SUCH CAPACITIES, LICENSED FINANCIAL ADVISORS, REGISTERED INVESTMENT ADVISORS, OR REGISTERED BROKER-DEALERS UNLESS OTHERWISE EXPRESSLY PROVIDED.
HYPESTER MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF THE INFORMATION PROVIDED IN CONNECTION WITH THE SERVICE. NO INFORMATION PROVIDED BY HYPESTER IS INTENDED AS SECURITIES BROKERAGE, INVESTMENT, TAX, ACCOUNTING OR LEGAL ADVICE, AS AN OFFER OR SOLICITATION OF AN OFFER TO SELL OR BUY, OR AS AN ENDORSEMENT, RECOMMENDATION OR SPONSORSHIP OF ANY COMPANY, SECURITY OR FUND OR AS ADVICE TAILORED TO YOUR OR ANY MEMBER’S PARTICULAR SITUATION. ANY URL LINKS OR COMPANY NAMES OR TICKER SYMBOLS ARE OFFERED AS A MATTER OF CONVENIENCE AND NOTHING CONTAINED IN THIS AGREEMENT OR IN THE SERVICE CONSTITUTES A SOLICITATION, RECOMMENDATION, PROMOTION, ENDORSEMENT, OR OFFER BY HYPESTER OF ANY PARTICULAR SECURITY, TRANSACTION, OR INVESTMENT.
HYPESTER MAY HAVE POSITIONS IN THE SECURITIES MENTIONED AND MAY ENTER AND EXIT SUCH POSITIONS AT ANY TIME AND FOR ANY REASON.
THE RISK OF LOSS IN TRADING SECURITIES, OPTIONS, FUTURES, FOREX, AND COMMODITIES CAN BE SUBSTANTIAL AND ARE NOT SUITABLE FOR ALL INVESTORS. YOU MUST CONSIDER ALL RELEVANT RISK FACTORS, INCLUDING YOUR OWN PERSONAL FINANCIAL SITUATION, BEFORE TRADING. YOU ASSUME THE RISK OF ANY AND ALL FINANCIAL INVESTMENTS YOU MAKE. HYPESTER IS NOT RESPONSIBLE FOR ANY FINANCIAL INVESTMENTS YOU MAKE.
RESULTS VARY AND PAST PERFORMANCE IS NOT INDICATIVE OF FUTURE RETURNS.
10. Limitations of Liability.
WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF INVESTMENTS, PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE; OR (C) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
11. Confidentiality; Publicity; Non-Disparagement; Restrictions.
11.1 Confidentiality. You may use Hypester Confidential Information only in connection with your use of the Service as permitted under this Agreement. You will not disclose Hypester Confidential Information during the term or at any time during the five (5) year period following the end of the term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Hypester Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. The foregoing restrictions shall not apply to the extent you must defend yourself in an action related to this Agreement, or to respond to an investigation by a governmental agency initiated by that agency or to report any truthful incidents of illegal conduct directed at you to law enforcement.
11.2 Non-Disparagement. (Non-California Residents) The parties agree that during the term of this Agreement and for a period of twenty-four (24) months immediately following expiration or termination for any reason, whether with or without cause, each shall not, not to (i) make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of the other or, as to Hypester, its respective employees, officers, directors, managers, members and affiliates or with respect to you (ii) publish or attempt to publish any narrative, fictional or otherwise, concerning or based, in whole or in part, on Hypester, without Hypester’s prior written consent or without leave of court. Each party acknowledges and agrees that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), Hypester Site users, clients or potential clients.
11.3 Libel, Slander, Defamation, and Non-Protected Statements. The parties agree that during the term of this Agreement and for a period of twenty-four (24) months immediately following expiration or termination for any reason, whether with or without cause, each shall be held accountable and liable under applicable law if they cause to (i) make libelous, slanderous, defaming, statements, written or verbal, or cause or encourage others to make any false, misleading or otherwise non-protected, statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of the other or, as to Hypester, its respective employees, officers, directors, managers, members and affiliates or with respect to you (ii) publish or attempt to publish any narrative, fictional or otherwise, concerning or based, in whole or in part, on Hypester, without Hypester’s prior written consent or without leave of court. Each party acknowledges and agrees that this extends to any false, misleading or otherwise non-protected, statements, written or verbal, that defame, or disparage made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), Hypester Site users, clients or potential clients.
You will not:
(a) issue any written statements or communicate, directly or indirectly, in any mode or fashion, with any person, entity, organization, or agency regarding or concerning, including, without limitation, the use of anonymous email or other communications through a third party, with respect to this Agreement or your use of the Service including, but not limited to our proprietary methodology that underscores the Service. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, or endorse or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
(b) publish or attempt to publish on any website or to any third party any narrative, fictional or otherwise, concerning or based, in whole or in part, the Service or this Agreement without Hypester’s prior written consent or without leave of court; or
(c) interfere with Hypester’s (including its officers, managers, employees, and affiliates) personal or business relationships concerning the Service or this Agreement.
The Parties understand and agree that this Section 11 is a material provision of this Agreement and that any breach of this Section shall be a material breach of this Agreement, and that Hypester would be irreparably harmed by any violation and that it would have no adequate remedy at law for such a violation. As such, you therefore consent to immediate injunctive relief by a court of competent jurisdiction as a remedy for any violation of these terms of the Agreement. You further acknowledge that any actions taken not in compliance with this Section are considered as purposefully directed at Hypester and that any actions for alleged injuries arise out or relate to activities in connection violations of this Section.
12.1 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
12.2 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
12.3 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Hypester Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Hypester Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact Hypester as follows: by facsimile transmission to firstname.lastname@example.org. We may update the facsimile number or address for notices to us by posting a notice on the Hypester Site. Notices provided by facsimile transmission will be effective one business day after they are sent.
12.5 Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 12.5 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
12.6 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
12.7 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
12.8 Governing Law; Arbitration. The laws of the State of Colorado, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. Except as otherwise provided in this Agreement, any controversy between the parties arising out of this Agreement shall be submitted to the American Arbitration Association for arbitration in Denver, Colorado. The costs of the arbitration, including any American Arbitration Association administration fee, the arbitrator’s fee, and costs for the use of facilities during the hearings, shall be borne equally by the parties to the arbitration. Attorneys’ fees may be awarded to the prevailing or most prevailing party at the discretion of the arbitrator. The rules for civil procedures in Colorado shall apply. The arbitrator shall not have any power to alter, amend, modify or change any of the terms of this Agreement nor to grant any remedy which is either prohibited by the terms of this Agreement, or not available in a court of law. Notwithstanding the foregoing, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our, our affiliates, or any third party’s intellectual property or other proprietary rights.
12.9 Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
12.10 Entire Agreement; English Language. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this Agreement will control.
“Acceptable Use Policy” means the policy currently available at https://www.hypester.org/aup, as we may update it from time to time.
“Hypester Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Hypester Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs including, but not limited to our proprietary methodology providing information and education to you so that you may conduct your own investment research and consider your own investment decisions ; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. Hypester Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; (iv) can be shown by documentation to have been independently developed by you without reference to the Hypester Confidential Information; or (v) discloses your own trading activities but does not mention Hypester’s proprietary methodology and other aspects of the Service.
“Hypester Content” means Content we or any of its affiliates make available in connection with the Service or on the Hypester Site to allow access to and use of the Service; Documentation; software libraries; command line tools; and other related technology. Hypester Content does not include the Service.
“Hypester Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Hypester and its affiliates that we may make available to you in connection with the Service or this Agreement.
“Hypester Site” means https://www.hypester.org and any successor or related site designated by us.
“Content” means software (including machine images), data, text, audio, video, images, DVDs or other content.
“Documentation” means the user guides and other written materials provided for in connection with the Service, as we may update from time to time.
“Policies” means the Acceptable Use Policy, the Site Terms, and all restrictions described in the Hypester Content and on the Hypester Site, and any other policy or terms referenced in or incorporated into this Agreement.
“Service” means each of the services made available by us or our affiliates, including any web services described in the Site Terms, the Hypester Content, the Hypester Marks, the Hypester Site, and any other product or service provided by us under this Agreement. Service does not include Third Party Content.
“Suggestions” means all suggested improvements to the Service that you provide to us.
“Term” means the term of this Agreement described in Section 6.1.
“Third Party Content” means Content made available to you by any third party on the Hypester Site or in conjunction with the Service.
“Your Content” means Content you (a) disclose, share, or upload on or to the Service, (b) cause to interface with the Services, or (c) upload to the Service under your account or otherwise transfer, process, use or store in connection with your account.
“Your Submissions” means Content that you post or otherwise submit to developer forums, sample code repositories, public data repositories, or similar community-focused areas of the Hypester Site or the Service.