Terms & Conditions for users of HYP
THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS ON WHICH HYP, INC. ("HYP") PROVIDES USERS AN ONLINE VENUE TO BID ON PROPERTY PURSUANT TO AN ONLINE AUCTION PROCESS HOSTED AND FACILITATED BY HYP.
Preamble This is the HYP User Agreement ("Agreement"). This Agreement contains terms and conditions applicable to your participation in the bidding on and purchase of property through the HYP website pursuant to an online auction process hosted and facilitated by HYP on the HYP website. By using the services on any of the HYP websites (i.e., thehyp.co and any other related websites where this Agreement appears), you are agreeing to the following terms and conditions, with HYP, Inc., as well as our subsidiaries and affiliates. Before you may become a user on any of the HYP websites, you must read and accept all of the terms and conditions in, and referenced by, this Agreement and our Privacy Policy (whether such terms and conditions are contained in the primary document itself or are hyperlinked to related documents) (collectively, the "Terms of Use"). We strongly recommend that, as you read this Agreement, you also access and read all linked information. Some HYP-branded websites, or sites that we operate, may also be governed by separate user agreements and privacy policies that you should also read and accept. You acknowledge and agree that we may amend this Agreement in our sole discretion at any time, and from time to time, by posting the amended terms on our website. Unless, and only to the extent, expressly stated to the contrary herein, all amended terms and conditions shall automatically be effective on a prospective basis once they are posted on our site. Accordingly, your use of any of the HYP websites and services shall be subject to the most current version of our Terms of Use in effect at that time, and you are encouraged to periodically review our Terms of Use for any recent changes and/or amendments. By clicking “Sign up” or “I agree” or otherwise indicating your assent or by accessing or using the HYP Site or any HYP services, you agree to be bound by the Terms of Use. If you do not agree to the Terms of Use, do not access or use the HYP Site or any HYP services.
DEFINITIONS. a. "HYP Site" or "Site" means the online venue located at thehyp.co. b. "Information" means any information or content (in any form) provided by User on, via or in connection with the HYP Site. c. "Property" means the goods that sellers list on the HYP Site for sale. d. "Terms of Use" means all the collective terms and conditions that all users (including User) must agree to, and abide by, including, but not limited to, those contained in this Agreement and our Privacy Policy. e. "User" means you, the end user of the HYP Site through which you may choose to bid on certain Property to be sold through the HYP Site.
PROPERTY FOR PURCHASE THROUGH THE HYP SITE.
a. In General. The HYP Site provides a venue for User to bid on online auctions of Property. User understands that HYP will not have any obligation to hold or have possession at any time of any Property (whether in inventory, consignment or otherwise). User may bid on Property on the HYP Site, subject to the Terms of Use.
b. Security. In order to participate in the Site, User will receive a User ID and a password to bid on Property. User will be responsible for protecting its password and changing such password periodically. User shall be responsible for actions taken by individuals who have access to User's User ID and password and agrees not to disclose the password to any third party. If User discovers that any password is no longer confidential, it shall inform HYP immediately. User agrees to select and use a single User ID in connection with any posting and agrees that such User ID shall appropriately identify User and not be misleading or confusing in any respect.
c. Responsibility for Information. HYP hereby disclaims any warranties relating to, or any responsibility for, any information or content provided or posted by any sellers or any other users of the HYP Site. User is solely responsible for the
content of the Information it provides. User represents, warrants and covenants that the Information it posts or submits on or via the Site or any additional Information that User provides to sellers will be current, accurate, lawful, lawfully obtained, complete, and not misleading and that User has all rights, consents and authority necessary to provide to HYP, and for HYP to use as permitted under the Terms of Use, the Information. User hereby grants to HYP the non-exclusive right to use the Information in accordance with our Privacy Policy and the Terms of Use, and as reasonably necessary for HYP to offer, provide and improve the HYP Site and to communicate with User regarding the HYP Site or any other related HYP products, offerings or services. In addition, User hereby grants to HYP a perpetual, irrevocable, worldwide, royalty-free, non exclusive right to use, copy, store, modify, process and disclose any data collected in connection with the HYP Site on a de-identified basis for any lawful purpose related to the HYP Site or HYP’s business in accordance with our Privacy Policy. HYP may use your profile photo, your username (which may include a link to one or more of your relevant social media pages), and any Property-related images or other information associated with any of your successful bids (collectively, "Winning Bid Information") and may incorporate such information into HYP's databases, advertisements, and other promotional and post-auction materials, either of an auction-specific or general commercial nature. In connection therewith, and in consideration of HYP providing the services pursuant to this Agreement, User hereby provides a royalty-free, worldwide license to HYP (i) to distribute, make available for retrieval, sublicense and otherwise market the Winning Bid Information, including to third parties; (ii) use the Winning Bid Information for internal purposes, including development, help desk support, marketing, sales, and demonstration purposes; and (iii) store the Winning Bid Information for archival purposes. With respect to any of your unsuccessful bids, you hereby authorize HYP to include your username (which may include a link to one or more of your relevant social media pages) in a public list of bidders in relation to the applicable Property. In addition, User hereby authorizes HYP to provide User’s contact information and relevant bidding-related information to the seller associated with any Property on which User has submitted one or more bids via the HYP Site for such seller’s internal business purposes related to market research and marketing.
d. Removal of Information. HYP reserves the right to take any action, including, without limitation, modification or removal of any information or content, as HYP deems necessary or appropriate if, in HYP’s absolute discretion, the publication of such information or content (i) may create liability for HYP or any HYP user, seller or contractor, or may cause HYP to lose (in whole or part) the services of HYP’s Internet business partners; (ii) infringes upon or violates any third party's intellectual property rights or rights of publicity or privacy; (iii) violates any law, statute, ordinance or regulation; (iv) is defamatory, libelous, illegally threatening or harassing; (v) contains obscenity, pornography or is otherwise inflammatory; (vi) contains a virus or other harmful or disruptive materials; or (vii) in any way violates the Terms of Use.
e. Prohibited Property. User will refrain from requesting, bidding on or purchasing any Property on the Site that is prohibited by the Terms of Use or would otherwise violate any applicable laws or regulations, or which would subject HYP, any of HYP’s contractors or sellers, or any of HYP’s users to potential liability. User will be responsible for determining whether the purchasing of Property may violate applicable laws or regulations. HYP may remove any listing for Property from the Site if HYP determines, in its sole discretion, that (i) the posting of such Property on the Site may have violated or may violate the Terms of Use, (ii) the posting, offering or sale of such Property may violate any applicable laws or regulations, (iii) such Property, or the posting, offering or sale thereof, may expose HYP, any of HYP’s contractors or sellers, or any of HYP’s users to potential liability or the threat of litigation, (iv) there is doubt as to the accuracy of the information or content with respect to such Property, or (v) there is doubt as to clear title, or the right to pass clear title, to the Property. In such event, HYP may immediately cancel the listing for such Property without prior notice and without any liability for such cancellation.
f. Compliance with Laws. User acknowledges and agrees that the use, purchase, distribution, promotion, advertising, and sale of certain products are subject to federal state, and local regulations. User further acknowledges and agrees that HYP’s role with respect to the listing, offering, auction, purchase, sale, or distribution of products is solely limited to providing a conduit through which a prospective purchaser may participate in an auction for the purchase of such products. HYP does not review or evaluate the products auctioned or verify the descriptions given, or claims made, by sellers regarding the products.
CONDITIONS OF SALE. a. In General. User shall fully read and understand the contractual terms under which the applicable seller will sell the Property to the successful bidder, as well as any additional terms required to consummate the sale (for example, shipping fee, insurance, taxes, etc.) (collectively, the "Conditions of Sale"). The Conditions of Sale will be binding upon User (if User is a successful bidder) and the applicable seller. b. Relationship. User agrees that HYP will not have any responsibility or liability for the content or accuracy of any information or content provided by the applicable seller or for any claims or disputes relating to the Property (or any quality, authenticity, delivery or use thereof), any Conditions of Sale, or any consummation or rescission of any sale.
ONLINE AUCTIONS.
a. Online Auction Periods. HYP will host and facilitate each online auction of Property on the HYP Site from the commencement date and time of such online auction through the date and time that such online auction ends, which dates and times shall be determined by HYP in its sole discretion (in coordination with the applicable seller).
b. No Circumvention or Interference. User shall not directly or indirectly circumvent, or attempt to circumvent, any online auction to purchase the applicable Property from the applicable seller (or any of its affiliates or distributors) in any manner other than via such online auction. In addition, User shall not interfere with, prevent or prohibit HYP in any manner prior to or during an online auction of Property on the HYP Site from hosting, facilitating, or carrying out such online auction in accordance with the Terms of Use. User shall not, and shall not permit any third party to, access or use the HYP Site except as expressly authorized by the Terms of Use. For purposes of clarity and without limiting the generality of the foregoing, except as expressly authorized by the Terms of Use, User shall not (i) copy, modify, or create derivative works or improvements of the HYP Site (or any portion thereof); (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the HYP Site (or any portion thereof) to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a
service, cloud, or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the HYP Site (or any portion thereof); (iv) bypass or breach any security device or protection used by the HYP Site or access or use the HYP Site other than through his or her own then-valid access credentials; (v) input, upload, transmit, or otherwise provide to or through the HYP Site, or HYP’s systems, any information or materials that are unlawful, disruptive or harmful (including, without limitation any virus or disabling code); or (vi) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the HYP Site, HYP’s systems, or HYP’s provision of any products or services to any third party.
c. Determination of Winning Bid. The Property will be sold to the highest bidder(s) in the online auction applicable to such Property, provided that the price bid for the Property by the highest bidder(s) is at least equal to the minimum price, if any, specified by HYP or the applicable seller for the Property. HYP shall make the final determination with respect to the bidding on Property, the sale of the Property, and the resolution of disputes between bidders.
d. Purchase Price; Payment. The purchase price payable for the Property by the winning bidder(s) shall consist of the price bid for the Property by such winning bidder, plus all applicable taxes, transfer fees, duties, shipping costs and insurance, in each case to the extent specified or provided for in the Conditions of Sale. User may be able to earn certain credits that, subject to the Terms of Use, may be used toward the purchase of Property on the HYP Site (“HYP Credits”). HYP Credits have no trade-in value and may not be used in any manner except as expressly set forth in the Terms of Use (and any applicable terms or disclaimers posted on the HYP Site). If HYP Credits are specific to a certain Property or type of Property, such HYP Credits may not be used in connection with any other Property. HYP reserves the right to modify, revoke or dispute the authenticity of HYP Credits at any time. After the then-current value of applicable HYP Credits (if any) are credited toward a purchase of Property, the winning bidder(s) shall make payment of the remaining balance of such purchase price to HYP in US dollars by having HYP make (and User hereby authorizes HYP to make) a charge in the amount of such purchase price to the credit card that such winning bidder has on file with HYP. In connection with any auction in which User participates, User hereby authorizes HYP to place a hold of User’s then-current bid amount
(less the then-current value of any applicable HYP Credits) on such credit card, pending final resolution of such auction. In the event that a winning bidder fails to make payment of any portion of the purchase price for the Property, HYP will
offer and sell the Property to the next highest bidder in the online auction with respect to such Property, provided that the price bid for the Property by such next highest bidder is at least equal to the minimum price, if any, specified by HYP or the applicable seller for the Property. The foregoing provisions of this Section 4(d) shall be applied iteratively until there is a winning bidder that makes payment in full of the applicable purchase price for each item of the applicable Property in accordance with the foregoing provisions of this Section 4(d) (such winning bidder is hereinafter referred to as the “Buyer”). In the event that, pursuant to the foregoing provisions of this Section 4(d), there is no Buyer (or an insufficient number of Buyers) that makes payment in full of the applicable purchase price for the Property, then the online auction shall be cancelled with respect to the Property (or the unsold portion thereof) and no sale of the Property (or the unsold portion thereof) shall have taken place pursuant to such online auction. For example, if four identical pairs of shoes are listed and there are three Buyers, then the one unpurchased pair of shoes will remain the property of the applicable seller.
e. Right to Change Fees. User acknowledges that HYP may receive certain fees or other compensation from sellers in connection with online auctions or sales of Property (e.g., a specific percentage of the purchase price), and that HYP may collect such fees or other compensation by retaining a portion of the purchase price payable for the Property by the winning bidder(s) and remitting the balance of such purchase price to the applicable seller of the Property. HYP reserves the right to change at any time, and from time to time, the fees (if any) charged by HYP by amending or updating this Agreement, which shall be automatically effective on a prospective basis once such amended or updated Agreement is posted to the HYP Site. Accordingly, you are encouraged to periodically review the most current version of this Agreement as posted in the HYP Site for any changes to our fees.
f. Fulfillment of Sale. After HYP receives (or processes) full payment for the Property, the applicable seller will be responsible for delivering or arranging for delivery of such Property to the Buyer(s) pursuant to the applicable Conditions of Sale. The Buyer will provide any necessary or reasonably requested information
to enable such delivery and will sign to accept such delivery, and the Buyer will look solely to the applicable seller regarding any claims, disputes or other issues relating to fulfillment of any purchase of Property or any delivery, authenticity, quality or use of Property. HYP hereby disclaims any warranties relating to, or
any responsibility for, any fulfillment of any purchase of Property or any delivery, authenticity, quality or use of Property.
PERSONAL DATA. User agrees not to use or disclose any personally identifiable information of any HYP seller or user that User obtains through the HYP Site or through HYP, any HYP related communication or any transaction with, or facilitated by, HYP except for the purposes of completing the transaction with the applicable seller. User agrees not to spider the HYP Site or otherwise collect seller or user information for any purpose without the express written permission of HYP.
CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY.
a. "Confidential Information" is defined as, collectively, any confidential or proprietary information of HYP (including, without limitation, this Agreement, the Terms of Use and the various policies referred to therein), any other information or material disclosed or made available to User by or on behalf of HYP, and any non-public information or materials related to the HYP Site. For clarity, the term “Confidential Information” shall include information of third parties that has been disclosed, provided or made available to, or is otherwise in the possession or control of, HYP on a confidential basis. User will hold Confidential Information in strict confidence and will not disclose such Confidential Information to third parties nor use Confidential Information for any purpose other than as expressly authorized in writing by HYP. Such restrictions will not apply to Confidential Information to the extent which User can demonstrate (a) is rightfully known by User before the date of disclosure, (b) becomes, through no act or fault of User, publicly known, or (c) is rightfully received by User from an unaffiliated third party without a restriction on disclosure or use.
b. In the event that User is required or compelled by law or court order to make any disclosure of Confidential Information, User shall provide HYP with prompt written notice of such requirement prior to such disclosure (to the extent
permitted by law) so that HYP may seek a protective order or other appropriate relief. Subject to the foregoing, User may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
c. HYP and its licensors retain all intellectual property rights in and to the HYP Site (including all related copyrights, patents, service marks, trademarks and other intellectual property rights), including but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, materials and documentation. Except for any rights specifically granted to User under the Terms of Use, User hereby assigns to HYP all other intellectual property rights it may now or hereafter possess in the HYP Site, any related documentation, or any suggestions or other feedback related to the HYP Site or HYP’s business that User may provide, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be reasonably necessary to confirm such rights. User also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the HYP Site or any related documentation delivered or made available to User by HYP. User shall not engage in or authorize any act or omission that would violate, contradict, challenge or limit HYP’s intellectual property rights. Nothing contained in the Terms of Use will restrict HYP from using any feedback, skills, knowledge, concepts, methodologies, functionalities, processes, techniques or information in intangible form that is gained through the performance of the Terms of Use or access to User’s information or materials (collectively, “Residuals”). All Residuals shall remain the property of HYP.
PUBLICITY. User will not issue any press release or make any similar public statement regarding this Agreement, the activities contemplated under this Agreement, HYP, or the HYP Site without HYP’s prior written approval.
REPRESENTATIONS, WARRANTIES AND COVENANTS. a. Power and Authority. User represents and warrants that User has the right, power, and authority to enter into this Agreement and to perform all of its obligations hereunder. b. No Conflict. User represents and warrants that entering into, and performing, this Agreement, will not conflict with, or constitute a breach of, any other agreement, arrangement, or obligation to which User is now, or will become, a party. c. Representations and Warranties Regarding Intellectual Property. User represents and warrants that the User’s posting or submission of the Information (and any permitted use thereof) will not violate the rights of any third party. d. Additional User Representations, Warranties, and Covenants. In addition to any other covenants and agreements set forth in this Agreement, User will refrain from (a) targeting HYP’s sellers or users to solicit such sellers or users for any activity outside of the scope of consummating the transactions on the HYP Site as set forth in this Agreement; (b) using any information derived from User's participation on the HYP Site for any purpose other than in connection with such participation; or (c) disclosing or providing such information to any third party.
DISCLAIMER OF WARRANTIES. USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HYP SITE, AND ANY SERVICES PROVIDED BY HYP OR HYP’S AFFILIATES UNDER THIS AGREEMENT ARE PROVIDED "AS IS", WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HYP DOES NOT REPRESENT OR WARRANT THAT THE HYP SITE OR ANY RELATED SERVICES WILL MEET USER'S REQUIREMENTS OR THAT THE OPERATION OF THE HYPE SITE OR ANY HYPE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. IN SUCH EVENT, USER ACKNOWLEDGES AND AGREES THAT SUCH LIMITATIONS AND EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. HYP MAKES NO WARRANTIES OF ANY KIND REGARDING OR RELATING TO ANY THIRD PARTY PRODUCTS, MATERIALS OR SERVICES.
LIMITATION OF LIABILITY.
a. User acknowledges and agrees that HYP and its affiliates, agents and contractors act only as a passive conduit for the dissemination and publication of information
and content and assume no liability (i) for such information and content, (ii) for the quality, authenticity, delivery or use of any Property, (iii) for any breach by User or any seller of any of the applicable Conditions of Sale or any of the other
Terms of Use, or (iv) for any injury to any person or property that arises, directly or indirectly, from the purchase or use by any person of any Property. It is expressly understood and agreed that HYP and its affiliates, agents and contractors do not promise or guarantee that a seller will actually complete a transaction, and that none of HYP or its affiliates, agents and contractors shall have any liability in the event that a seller fails to consummate a transaction. User acknowledges and agrees that it assumes all risks associated with auctions, including, without limitation, that a seller may rescind a listing, fail to deliver an item, or otherwise fail to complete a transaction.
b. In no event shall HYP, its shareholders, members, partners, officers, directors, employees, agents, contractors, parent company, subsidiaries, affiliates, joint venturers, and successors and assigns, be liable to User or any third party for any indirect, special, incidental, punitive or consequential damages (including, but not limited to, damages for loss of goodwill, work stoppage, computer failure, delays in training, or malfunction, lost profits, lost business or lost opportunity), or any other similar damages under any theory of liability (whether in contract, tort, strict liability or any other theory), arising in connection with this Agreement and HYP’s activities pursuant to this Agreement, even if User has been informed of the possibility thereof.
c. The total amount of HYP’s liability for any loss, cost, claim or damages of any kind arising out of, or related to, this Agreement, shall in no event exceed the lesser of (i) the amount of the fees paid to HYP pursuant to this Agreement specifically in connection with the sale of the Property to which such loss, cost, claim or damages relate or relates, or (ii) $100.
d. HYP reserves the right, in its sole discretion and without prejudice to its other remedies, to remove information or content or withdraw any Property items from the HYP Site if HYP determines that the information or content or any item up for bid is not accurately described or if HYP determines that any of the information or content or any item submitted for online bidding will violate any law or regulation or subject HYP to potential liability.
INDEMNIFICATION. User agrees to defend, indemnify and hold HYP, its shareholders, members, partners, officers, directors, employees, agents, contractors, parent company, subsidiaries, affiliates, joint venturers, successors and assigns, harmless from, and against, any and all causes of action, suits, claims, demands, judgments, liabilities, losses, damages, awards, penalties, fines, costs and expenses (including, but not limited to, reasonable attorney's fees), arising out of, relating to, or resulting from: (i) any promotion, use or resale of any Property; (ii) any claim that User (or the applicable seller) did not or has not fulfilled or consummated the purchase of any Property, for which User was a successful bidder, in accordance with any of the Terms of Use or any of the Conditions of Sale; (iii) any actual or alleged breach by User of any promise, covenant, obligation, provision, representation or warranty set forth in this Agreement or made or agreed by User pursuant to any applicable Conditions of Sale; (iv) User's alleged violation of any applicable laws or regulations, or User’s alleged violation of the rights of any third party; or (v) the Information that User provides. The foregoing provision shall apply regardless of whether the individual/entity asserting the claim, action, damages, etc. is ultimately able to substantiate the said claim, action, damages, etc.
LINK POLICY. User shall not include in the Information or the HYP Site: (i) links or other connections to live chat systems; (ii) links to videos hosted on other websites without the prior written consent of HYP; (iii) links to non-HYP newsletters or mailing lists; (iv) links to websites or pages that host material deemed to be inappropriate for general audiences; or (v) links to non-HYP auction or resale platforms.
TCPA CONSENT & PRIVACY.
User authorizes HYP, its agents, contractors, representatives and/or affiliates to transmit information to User via text message, email, and/or phone concerning training sessions, auction results, promotional offers and other matters pertaining to User’s account, as well as products or services in which User may be interested, at such telephone number or electronic address provided by User. HYP may contact User in any manner, including SMS messages (including text messages), email, calls using prerecorded messages or artificial voice, and calls and messages delivered
using an auto telephone dialing system or automatic texting system. User certifies, warrants and represents that the telephone number(s) and electronic address(es) provided to HYP is/are User’s current telephone number(s) and electronic address(es) and that User is permitted to receive calls, texts, and emails via the same. User understands that additional carrier charges may apply for text messages, as determined by User’s cell phone plan. User agrees to promptly notify HYP whenever it stops using a particular telephone number or electronic address. User also acknowledges that HYP may listen to and/or record phone calls between User and HYP without notice to User, as, and when, permitted by applicable law. Notwithstanding anything to the contrary contained herein, User understands that it is not required to provide this authorization as a condition to utilizing the products and services offered by HYP, and further, that it may revoke this authorization, at any time, in a writing properly delivered to HYP. For additional information concerning the Telephone Consumer Protection Act (TCPA), please visit
https://www.fcc.gov/general/telemarketing-and-robocalls.
NO AGENCY. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
NOTICES. Any notice, demand, request or other communication which User may desire or be required to give to HYP hereunder shall be in writing and shall be given by confirmed electronic mail to [hello@thehyp.co], or at such other address that we may designate in writing in the future. Any notice, demand, request or other communication which HYP may desire or be required to give to User shall be in writing and shall be given by email to the email address that User provided to HYP during the registration process, or by certified mail, return receipt requested (with postage prepaid), or by Federal Express or other similar overnight delivery service (with fees prepaid), addressed to User at the address provided to HYP during the registration process. All notices given by e-mail to User shall be deemed given as of 5:00 P.M. eastern standard time on the business day following the day of transmission. All notices given by mail shall be deemed to have been given three (3) business days after mailing and all notices delivered by overnight delivery service shall be deemed given when delivered.
FORCE MAJEURE. No party shall be liable for any failure or delay in performing any obligation under this Agreement that is due to any events or circumstances beyond such party’s reasonable control (each, a “Force Majeure Event”), such as Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, outbreak, epidemic, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service. If a Force Majeure Event occurs, the affected party will notify the other party and make commercially reasonable efforts to mitigate the adverse effects of the Force Majeure Event on the performance of this Agreement. However, this provision does not excuse User's obligation to pay for services actually received or for Property for which User is a successful bidder.
ARBITRATION.
If a dispute, controversy, claim or cause of action (except for actions seeking injunctive or equitable relief) arises out of, or in connection with, this Agreement or any breach or alleged breach thereof (the "Dispute"), and if the Dispute cannot be settled through direct discussions, we mutually agree to endeavor first to settle the Dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures then in effect (or under any other form of mediation mutually acceptable to the parties involved) before resorting to arbitration. Any unresolved controversy or claim relating to the Dispute shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect (or under any other form of arbitration mutually acceptable to the parties involved), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If all parties to the Dispute agree, a mediator involved in the parties' mediation may be asked to serve as the arbitrator. The mediation and arbitration, if any, shall take place in the City, State, and County of New York (unless another location is mutually agreed to by the parties involved). Any award rendered shall be final and conclusive upon the parties. The costs and expenses of the mediation and arbitration shall be borne equally by the parties, provided, however, that the arbitrator shall award to the prevailing party, if any, the reasonable costs and attorneys' fees incurred by the
prevailing party in connection with the mediation and arbitration. If the arbitrator determines that a party was the prevailing party on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the reasonable costs and attorneys' fees incurred by the prevailing party in connection with the mediation and arbitration. In the event this
mediation/arbitration provision is found to be unenforceable or inapplicable for any reason, then any dispute, controversy, claim or cause of action arising out of, or in connection with, this Agreement or any breach or alleged breach thereof, shall be brought in the state or federal courts in the City, State, and County of New York, and User irrevocably consents and submits to the jurisdiction of such courts for the purpose of litigating any such action and waives trial by jury. The prevailing party in such action shall be entitled to recover its reasonable costs and attorneys' fees incurred in connection therewith, and if it is determined that a party was the prevailing party on some but not all of the claims and counterclaims, such party may be awarded an appropriate percentage of the reasonable costs and attorneys' fees it incurred in connection therewith.
INJUNCTIVE RELIEF It is expressly understood and agreed that any breach by User of any of the terms and conditions contained in the Terms of Use may cause HYP to suffer irreparable harm for which there is no adequate remedy at law. Accordingly, HYP shall be entitled to the issuance of an injunction, restraining order, or other equitable relief, without the necessity of posting a bond, to restrain User from committing, or continuing to commit, any such breach. Any right to obtain an injunction, restraining order, or other equitable relief shall not be deemed to be a waiver of any other right or remedy to which HYP may be entitled at law or in equity. Additionally, it is further agreed that any monetary damages to which HYP may be entitled as a result of such breach shall expressly include consequential damages, including, but not limited to, lost revenue and profit.
MISCELLANEOUS. a. This Agreement (and all documents and exhibits incorporated by reference herein), constitutes and sets forth the entire agreement and understanding of the parties pertaining to the subject matter hereof, and supersedes all prior or contemporaneous written or oral agreements, understandings, undertakings, negotiations, promises, discussions, warranties or covenants that are not specifically contained herein. In the event of an inconsistency between the terms of this Agreement and any other document that forms a part of this Agreement, the terms of this Agreement will govern. b. The headings, sections, or titles of the various paragraphs of this Agreement are inserted merely for the purpose of convenience and do not expressly or by implication or intention, limit, define, extend or affect the meaning or interpretation of this Agreement or the specific terms or text of the section so designated. All personal pronouns used in this Agreement shall include the other genders, whether used in the masculine, feminine or neuter gender, and the singular shall include the plural and vice versa, whenever, and as often as may be, appropriate. c. This Agreement shall be governed in all respects, whether as to the validity, construction, interpretation, capacity, performance or otherwise, by the laws of the State of New York, without regard to principles of conflicts of laws. It is expressly understood and agreed that the United Nations Convention on Contracts for the International Sale of Goods ("CISG") shall not govern or apply to this Agreement, and the parties hereby exclude application of the CISG. d. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, then such provision shall (solely with respect to such circumstances) be deemed stricken herefrom and the remainder of this Agreement shall remain at all times in full force and effect. Such invalid or unenforceable provision shall (under such circumstances), to the extent legally permitted, be replaced by a valid and enforceable provision that comes closest to the parties' intent underlying the invalid or unenforceable provision; under all other circumstances, such provision shall continue to be in full force and effect to the maximum extent permissible under applicable law. e. It is understood that any accrued but unpaid financial obligations, and any other terms related to such financial obligations, shall survive the expiration or termination of this Agreement. f. No waiver of any breach, privilege or provision of this Agreement will be construed as a waiver of any rights or remedies arising from any other or future breach, privilege or provision. g. Neither party will assign or transfer this Agreement, or any of its rights and obligations hereunder, without the other party’s prior written consent, except that HYP may assign or transfer this Agreement and all of its rights and obligations under this Agreement to any successor or acquiror of all or substantially all of its business or assets to which this Agreement relates (in which case, the prior written consent of User shall not be required). Any attempted assignment or transfer in violation of the foregoing will be null and void. However, HYP may, in its sole discretion, assign or otherwise transfer this Agreement or any of its rights and obligations under this Agreement to an affiliate of HYP.
AMENDMENTS AND FUTURE TERMS. HYP may amend, modify, add or remove any of the terms and conditions of the Terms of Use at any time, and from time to time. If we do so, we will post such changes in the HYP Site. IF ANY FUTURE CHANGES TO THE TERMS OF USE ARE UNACCEPTABLE TO USER, USER SHOULD DISCONTINUE USING THE HYP SITE. USER'S CONTINUED USE OF THE HYP SITE NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY SUCH CHANGES, WILL INDICATE USER'S ACCEPTANCE OF THE TERMS OF USE, INCLUDING ANY SUCH CHANGES.