TERMS OF SERVICE FOR HYPER9 WEBSITE AND ASSOCIATED SERVICES
Last updated February 23, 2009
Background
The Hyper9, Inc., a Delaware corporation ("Hyper9," “our,” “us,” or "we") operates the www.hyper9.com website (the “Website”) and certain related services (the “Service”) that allow users of the Website and the Service to utilize the website and partake in associated community and forum activities, among other things. The Service includes the Website and any other features, content, forums, websites or applications offered from time to time by Hyper9 in connection with the Website.
Acknowledgment and Acceptance.
This Terms of Service ("Agreement") sets forth the legally binding terms for your use of the Service. By using the Service (i) you (“you”) agree effective as of such date (the “Effective Date”) to be bound by this Agreement and (ii) you become a "User." You are only authorized to use the Service (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and to this Agreement, and you also agree to our Privacy Policy, which is hereby incorporated by reference. Please read this Agreement carefully and save it. If you do not agree with it, you should leave the Website and discontinue use of the Service immediately.
Modifications. Hyper9 may modify the terms of this Agreement relating to the Service from time to time. Any such modification shall be effective when posted on the Website by Hyper9.
(A) YOUR USE OF THE SERVICE
This part of the Agreement includes our policy for acceptable use of the Service and the Content (as defined below), and your rights, obligations and restrictions regarding your use of the Service. You may be notified that in order to participate in certain aspects of the Service, you are required to agree to additional terms and conditions.
Password and Account Information. If in connection with the use of the Service you create an account, you may be asked to choose a password. You alone are responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another User at any time or to disclose your password to any third party. You agree to notify Hyper9 immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account. You agree to promptly notify us of any change in your address (mail or primary email) or any personal profile.
Eligibility. Use of the Service is void where prohibited. By using the Service, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older; and (d) your use of the Service does not violate any applicable law or regulation. You shall not create more than one account. You acknowledge that Hyper9 may refuse to allow you to create an account, and may restrict, modify, or terminate any account, without liability, for its convenience, if you violate this Agreement or any law, rule, or regulation, or if your participation could violate any applicable law, rule, or regulation.
Our Advertisers. Your correspondence with or participation in our advertisers’ and partners’ promotions are solely between you and the advertiser or partner. We assume no liability, obligation, or responsibility for any part of any such correspondence or promotion, including without limitation withdrawal or modification of any offer or promotion.
Data. You shall own all right, title, and interest in and to any data that is collected by Hyper9 from you in connection with your use of the Service (“Data”). However, you agree to grant and hereby grant to Hyper9 a perpetual, irrevocable, transferable, non-exclusive license to use such Data (a) in order to provide the Service to you; (b) as necessary to monitor and improve the Service, and (c) for any other lawful use or purpose (provided in the case of (c) that such Data is not personally identifiable). You alone are responsible for backing up your Data and in connection with the termination of your account, Data may be deleted.
Fees for Service. You acknowledge that Hyper9 reserves the right to charge for the Service and to change its fees from time to time in its discretion. You also acknowledge that Hyper9 reserves the right to change or discontinue the Service at any time without notice to you and Hyper9 shall not be liable to you or any third party should Hyper9 exercise its right to change or discontinue the Service.
Consent to Receive Commercial E-mail. BY AND AS A CONDITION OF BECOMING A USER, YOU CONSENT TO RECEIVE COMMERCIAL E-MAIL MESSAGES FROM OR ON BEHALF OF HYPER9 AND OUR PARTNERS, AND ACKNOWLEDGE AND AGREE THAT YOUR PRIMARY EMAIL ADDRESSES AND OTHER PERSONAL INFORMATION MAY BE USED BY HYPER9 FOR THE PURPOSE OF INITIATING COMMERCIAL E-MAIL MESSAGES. You may elect to discontinue receipt of email by [clicking here and entering your email address to unsubscribe], but by doing so, your account may also be terminated. Hyper9 reserves the right to send system updates; flash bulletins; order confirmations; administrative announcements; special requests and other similar messages to all account holders ("Administrative Messages"). Users cannot unsubscribe from these Administrative Messages.
Unauthorized Use. The Service is for the personal use of Users only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by Hyper9. Illegal and/or unauthorized use of the Service, including collecting usernames and/or email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Website is prohibited. Unauthorized commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of your account. Appropriate legal action will be taken for any illegal or unauthorized use of the Service.
Proprietary Rights in Content. The Service may contain content of Hyper9 or our licensors (the "Content."). Content is protected by copyright, trademark, patent, trade secret and other laws, and Hyper9 (or our licensors) owns and retains all rights in the Content and the Service. Hyper9 hereby grants you a non-exclusive, non-sublicensable, nontransferable, revocable, limited license to reproduce and display the Content (excluding any software code) solely for your personal use in connection with viewing the Website and using the Service in accordance herewith. Hyper9 does not grant you any other licenses, express or implied, to the intellectual property of Hyper9 or its licensors, including to the Content, and you may not otherwise copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any of the Content.
Use Restrictions. You agree that you will use the Website and Service in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence. You shall not, shall not agree to, and shall not authorize or encourage any third party to: (i) use the Website to upload, transmit or otherwise distribute any content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as determined by us; (ii) upload, transmit or otherwise distribute content that infringes upon another party's intellectual property rights or other proprietary, contractual or fiduciary rights or obligations; (iii) prevent others from using the Website; or (iv) use the Website for any fraudulent or inappropriate purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. Hyper9 reserves the right, but shall have no obligation, to investigate your use of the Website in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, legal process or governmental request.
Prohibited Activities. The following is a partial list of the kind of activity that is illegal or prohibited on the Website and through your use of the Service. Hyper9 reserves the right to investigate and take appropriate legal action against anyone who, in Hyper9’s sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to: criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets; unauthorized advertising to, or solicitation of, any User to buy or sell any products or services through the Service; covering or obscuring the banner advertisements on any personal profile page, or any page via HTML/CSS or any other means; any automated use of the system, such as using scripts to add friends or send comments or messages; interfering with, disrupting, or creating an undue burden on the Service or the networks or services connected to the Service; attempting to impersonate another User or person; using the account, username, or password of another User at any time or disclosing your password to any third party or permitting any third party to access your account; selling or otherwise transferring any user profile (other than an authorized transfer of limited Data pursuant to our then current procedures); using any information obtained from the Service in order to harass, abuse, or harm another person; displaying an advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Service on behalf of that person; holding yourself out as sponsored by, endorsed by or affiliated with Hyper9; use the Service for making available Content that is harmful to minors in any way; or using the Service in a manner inconsistent with any and all applicable laws and regulations.
Copyright Policy. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Service; (iv) your address, telephone number, and primary email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Send any notices of suspected Copyright Infringement issues to webmaster@hyper9.com and reference Copyright Issues in the subject line.
Disputes Among Users. You are solely responsible for your interactions with other Users. Hyper9 reserves the right, but has no obligation, to monitor disputes between you and other Users.
Disclaimers Regarding the Service. Hyper9 is not responsible for any incorrect or inaccurate Content posted on the Website or in connection with the Service, whether caused by Users of the Service or by any of the equipment or programming associated with or utilized in the Service. The Website may contain links to other websites. Hyper9 is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by Hyper9. Inclusion of any linked website on the Service does not imply our approval or endorsement of the linked website or any third party, including any person with which you enter into a business relationship. When you access these third-party sites, you do so at your own risk. Hyper9 takes no responsibility for third party advertisements which are posted on the Website or through the Service, nor does it take any responsibility for the goods or services provided by its advertisers or other Users. Hyper9 is not responsible for the conduct, whether online or offline, of any User of the Service. Hyper9 assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User communication. Hyper9 is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on the Service or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Service. Except to the extent prohibited by law, under no circumstances shall Hyper9 be responsible for any loss or damage, including personal injury or death, resulting from use of the Service, attendance at a Hyper9 event, from any Content posted on or through the Service, or from the conduct of any Users of the Service including third party services or products provided to you, whether online or offline.
(B) GENERAL
Disclaimer of Warranties. HYPER9 AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. HYPER9 AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE, RETRIEVABLE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Limitation on Liability. IN NO EVENT SHALL HYPER9 BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM THE PRODUCTS OR YOUR USE OF THE SERVICE, EVEN IF HYPER9 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, HYPER9'S AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW AT ALL TIMES BE LIMITED TO THE AMOUNT YOU PAID TO RECEIVE THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
The warranty disclaimers and limitations of liability set forth in this Agreement shall apply irrespective of any failure of essential purpose of any limited remedy.
U.S. Export Controls. Any software available in connection with the Service (the "Software") is further subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using any Software is at your sole risk and may be subject to additional terms and conditions. The Service and Software may be subject to export laws and other regulations in the United States or other countries, and you agree to comply with all such laws, regulations, or requirements as may apply to your receipt, export, or use of the Service and Software. You agree to indemnify Hyper9 for any liability resulting from your failure to comply with applicable export laws, regulations, or requirements.
Disputes with Hyper9. Hyper9 shall be the sole determiner in cases of suspected abuse, fraud, or violation of its rules and any decision it makes relating to termination of an account shall be final and binding. Hyper9 reserves the right to exercise any legal remedy to recover damages for a breach or contravention of the terms hereof. If there is any dispute about or involving the Service, you agree that the dispute shall be governed by the laws of the State of Texas, USA, without regard to conflict of law provisions and you agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in the City of Austin, Texas. Either Hyper9 or you may demand that any dispute between us about or involving the Service must be settled by binding arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in Austin, Texas, USA, provided that the foregoing shall not prevent Hyper9 from seeking injunctive relief in a court of competent jurisdiction.
Indemnity. You agree to indemnify and hold Hyper9, its subsidiaries, and affiliates, and their respective directors, officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Service or any Software in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any Content that you post on the Website or through the Service causes Hyper9 to be liable to another.
Term. This Agreement shall remain in full force and effect until terminated by Hyper9. Hyper9 may delete your profile and terminate your account at any time, without warning and without liability of any kind. Even after your account is terminated, your restrictions and obligations under this Agreement will remain in effect. Your account will terminate immediately in the event of a User's death.
If your account is terminated by Hyper9 for any reason, you may not create a new account during the six month period following such termination.
Other. This Agreement is accepted by you upon your use of the Website or the Service and is further affirmed by you using the Service. This Agreement constitutes the entire agreement between you and Hyper9 regarding the Service. In the event of a conflict between this Agreement and any terms presented to you in connection with the purchase by you of any products from Hyper9, the terms presented in connection with such purchase shall prevail. The failure of Hyper9 to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. “Hyper9,” and “VMDNA” are trademarks of Hyper9. This Agreement operates to the fullest extent permissible by law. Hyper9 may freely transfer or assign this Agreement and any of its rights or obligations hereunder. You may not transfer or assign this Agreement or any of your rights or obligations hereunder without the prior written consent of Hyper9, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
Questions. Please contact us at: webmaster@hyper9.com with any questions regarding this Agreement.