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.
PROPERTY FOR PURCHASE THROUGH THE HYP SITE.
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.
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).
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.
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
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
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 [email@example.com], 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.
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.
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.