Terms of Services
You must accept these Terms to create a Hykso account and to use the Hykso Service. If you do not have an account, you accept these Terms by visiting www.hykso.com or using any part of the Hykso Service. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN ACCOUNT, VISIT WWW.HYKSO.COM OR USE THE HYKSO SERVICE.
These Terms May Change
These Terms will change over time. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on www.hykso.com. We will notify you by email, through the Hykso Service, or by presenting you with a new Terms of Service to accept if we make a modification that materially changes your rights. When you use the Hykso Service after a modification is posted, you are telling us that you accept the modified terms.
Who Can Use Hykso?
You may use the Hykso Service if you are over 13 years of age and are not barred from receiving services under applicable law. You may connect to the Hykso Service using a device that is manufactured, distributed, or sold by or on behalf of Hykso; the Hykso mobile applications; the Hykso software; approved third-party applications; or www.hykso.com (“Authorized Connections”). You may not connect to the Hykso Service with any device that is not manufactured, distributed, or sold by or on behalf of Hykso (such as a knock off or counterfeit version of a Hykso Product); otherwise intends to resemble or purports to be a Hykso Product; or any unauthorized application or-third party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the Hykso Service. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact [email protected].
Full use of the Hykso Service requires that you create an account by providing us with a valid email address and strong password. You are responsible for all activity that occurs in association with your account. Hykso is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
We may need to contact you about your use of the Hykso Service. These communications are part of the Hykso Service and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications and keep your email address up-to-date from your account settings.
Creating an Account
Full use of the Hykso Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the Hykso Service and it is your responsibility to ensure the equipment’s functionality.
Posting Your Content On The Hykso Service
You may post photos, exercise regimens, food logs, recipes, comments, and other content (“Your Content”) to the Hykso Service. You retain all rights to Your Content that you post to the Hykso Service. By making Your Content available on or through the Hykso Service you grant to Hykso a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform and distribute Your Content only in connection with operating and providing the Hykso Service.
You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms. You also represent and warrant that Your Content and the use and provision of Your Content on the Hykso Service will not: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) be defamatory, obscene, pornographic, vulgar or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.
You also agree that Your Content will comply with the following community guidelines:
- Be respectful of the opinions of others. Even though you might not agree with someone, that doesn’t mean they are wrong or deserve to be belittled. Remember that what works for you may not work for everyone else. Give everyone the same courtesy you would expect in return.
- Do not post profane or explicit content.
- Do not post profile pictures that might be considered inappropriate.
- Do not post communications that could be interpreted as threatening or harassing.
- Do not post, advertise, or promote products or services commercially.
“Hykso Content” includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Hykso Service to you. Except for Your Content, Hykso Content, the Hykso Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Hykso Service.
Things You Cannot Do On The Hykso Service
The Hykso Service is intended for your personal, non-commercial use.
Hykso grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the Hykso Content, (2) access and use the software and mobile applications provided by the Hykso Service, and (3) use the software that is embedded into Hykso products as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the Hykso Service as permitted in these Terms.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Hykso Content, Hykso Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Hykso or its licensors, except for the licenses and rights expressly granted in these Terms.
What You Can Do On The Hykso Service
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Hykso Service: (1) use, display, mirror or frame the Hykso Service or any individual element within the Hykso Service, Hykso’s name, any Hykso trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Hykso’s express written consent; (2) access or tamper with non-public areas of the Hykso Service, Hykso’s computer systems, or the technical delivery systems of Hykso’s providers; (3) test the vulnerability of any Hykso system or breach any security or authentication measures; (4) circumvent any technological measure implemented by Hykso or any of Hykso’s providers or any other third party (including another user) to protect the Hykso Service or Hykso Content; (5) access the Hykso Service or Hykso Content through the use of any mechanism other than through the use of an Authorized Connection, Hykso Service or Hykso API; or (6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that Hykso provides to you or any other part of the Hykso Service.
Our Enforcement Rights
We are not obligated to monitor access or use of the Hykso Service, Hykso Content, or Your Content or to review or edit any Hykso Content or Your Content, but we have the right to do so for the purpose of operating the Hykso Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the Hykso Service, any Hykso Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the Hykso Content, Your Content, or your use of the Hykso Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Hykso Service.
Use The Hykso Service At Your Own Risk
Our goal is to provide helpful and accurate information on the Hykso Service, but we make no endorsement, representation or warranty of any kind about any Hykso Content, information, services or recommendations. The accuracy of the data collected and presented through the Hykso Service is not intended to match that of medical devices or scientific measurement devices.
We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the Hykso Service. Maps, directions, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. If you rely on any Hykso Content or the Hykso Service, you do so solely at your own risk.
Consult Your Doctor Before Using The Hykso Service
The Hykso Service is not intended to diagnose, treat, cure, or prevent any injuries. If you have a medical or heart condition, consult your doctor before using the Hykso Service, engaging in an exercise program or changing your diet. If you experience a medical emergency, stop using the Hykso Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Hykso Service. If you engage in any exercise program you receive or learn about through the Hykso Service you agree that you do so at your own risk and are voluntarily participating in these activities.
Wearing Hykso Devices during Sparring, or any other contact exercise may cause discomfort or improper pressure during a contact. To reduce risks, follow the following tips: (1) Place it at the end of your hands wrapping; (2) Always wear it under your gloves; (3) tighten the devices properly. If you notice any marks or injuries, remove the device during those exercices. If symptoms persist longer than 2-3 days after removing the device, consult your doctor. If you feel soreness, tingling, numbness, burning or stiffness in your hands or wrists while or after wearing the product, please discontinue use.
Use Common Sense
Use of the Hykso Service should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your Hykso product or service.
Hykso respects copyright law and expects its users to do the same. It is Hykso’s policy to terminate in appropriate circumstances account holders who repeatedly infringe the rights of copyright holders. Please see Hykso’s DMCA/Copyright Policy.
Additional Policies Apply To Product Orders
Hykso’s Terms of Sale and Return Policy and Warranty apply to purchases made through the Hykso store at www.hykso.com. All orders placed are subject to Hykso’s acceptance. We may accept, decline, or place limits on your order for any reason.
Feedback And Submissions Policy
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by Hykso, or obtained from sources other than you. Our Feedback and Submissions Policy is also part of the Terms.
Contests And Giveaways
Additional terms and conditions may apply to contests, giveaways and other promotions sponsored by Hykso and its partners. It is your responsibility to carefully review those terms and conditions.
You Agree to Receive Alerts And Notifications
As part of your use of the Hykso Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
We Are Not Responsible For Third-Party Links On The Hykso Service
The Hykso Service contains links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under Hykso’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
Hykso Does Not Control Third-Party Services That You Link With Your Hykso Account
Changes To The Hykso Service
Hykso may change or discontinue, temporarily or permanently, any feature or component of the Hykso Service at any time without notice. Hykso is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Hykso Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Hykso products without prior notice to you.
If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may cancel your account at any time by contacting Customer Support. Upon any termination, discontinuation or cancellation of the Hykso Service or your account, the following provisions of these Terms will survive: Posting Your Content On The Hykso Service; Hykso’s Rights; Our Enforcement Rights; Consult Your Doctor Before Using The Hykso Service; Termination; Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.
THE HYKSO SERVICE AND HYKSO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Hykso Service or Hykso Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Hykso Service or any Hykso Content. You acknowledge and agree that if you rely on any Hykso Content or the Hykso Service, you do so solely at your own risk.
You will indemnify and hold harmless Hykso and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the Hykso Service, (ii) Your Content, or (iii)your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Limitation Of Liability
NEITHER HYKSO, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE HYKSO SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE HYKSO SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HYKSO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL HYKSO’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE HYKSO SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO HYKSO FOR USE OF THE HYKSO SERVICE OR TWO HUNDRED DOLLARS ($200), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO HYKSO, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HYKSO AND YOU.
You agree that any dispute between you and Hykso arising out of or relating to these Terms of Service, the Hykso Service, or any other Hykso products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Governing Law: The Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Hykso, you agree to try to resolve the Dispute informally by contacting [email protected]. We’ll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Hykso may bring a formal proceeding.
We Both Agree To Arbitrate: You and Hykso agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting [email protected] within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement. Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, San Francisco, California, or any other location we agree to.
Arbitration Fees: The AAA rules will govern payment of all arbitration fees. Hykso will pay all arbitration fees for claims less than $75,000. Hykso will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate: Either you or Hykso may assert claims, if they qualify, in small claims court in Orange County (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Hykso products or Hykso Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions: You may only resolve Disputes with Hykso on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed under our agreement.
Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Hykso agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both you and Hykso consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Hykso products or Hykso Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Hykso and you regarding the Hykso Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Hykso and you regarding the Hykso Service and Hykso Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Hykso’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Hykso may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Hykso under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Hykso Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
Hykso’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Hykso. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Additional Terms May Apply
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
PLEASE CONTACT US IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.
Terms of Sale
These terms of sale (“Terms”) apply to all orders accepted by Hykso, Inc. (“Hykso”) for the sale of its personal fitness and electronic body monitoring products (“Products”), except in the case that you and Hykso have executed a written agreement that supersedes these Terms. To the extent the Products contain or consist of software in any form (“Software”), such Software is licensed to you, not sold, and only in accordance with the section entitled “Software License”, below. Terms such as “sell” and “purchase”, as used in these Terms, apply only to the extent the Products consist of items other than Software.
ORDERING FROM THE HYKSO STORE
You can browse and place orders for our Products through, www.hykso.com (the “Hykso Store”). We’ll ask you for your name, phone number, e-mail address, shipping and billing address, and other information so we can fulfill your order. When you place an order, Hykso’s third-party payment service provider will collect your credit card details and charge your credit card account in connection with the order, and you agree to make all applicable payments in connection with any order placed by you. Hykso does not view or store your credit card information. We store your shipping address so we can process your order through our fulfillment partner. If you are logged into your Hykso account when you purchase something from the Hykso Store, we associate that order with your Hykso account.
By placing an order through the Hykso Store, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for commercial use.
Hykso can withdraw Products from the Hykso Store at any time and for any reason. Prices listed through the Hykso Store are stated in U.S. dollars, and do not include any shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you before you place an order and you are responsible for paying such charges and taxes to Hykso. You agree to indemnify and hold Hykso harmless from and against any liabilities, interest, penalties or fees assessed against Hykso arising from your failure to pay any such taxes. All Product prices are subject to change at any time.
ACCEPTANCE AND FULFILLMENT
All orders are subject to acceptance by Hykso. After you place an order, you will receive an email from Hykso confirming that Hykso has received it. Acceptance of your order will occur upon your receipt of another email from Hykso containing a shipping confirmation, tracking number and carrier information. If an order is on back order, we’ll send you an email indicating that this is the case, followed by another email when the items in question are in stock containing a shipping confirmation, tracking number and carrier information. Hykso reserves the right not to accept your order for any reason or no reason. Hykso reserves the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.
Purchases made through the Hykso Store are intended for end users only, and are not authorized for resale.
SHIPPING AND DELIVERY
Hykso will pack the Products in accordance with its standard practices. You can choose the method of shipment and timing of delivery for Products ordered, and will be charged shipping and handling charges accordingly. Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon Hykso’s delivery of the Products to the carrier. You acknowledge that all scheduled shipment dates are estimates only. Hykso will make reasonable efforts to meet the scheduled shipment dates, but in no event will Hykso be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
If you are unsatisfied with any Product purchased from the Hykso Store for any reason, you will have thirty (30) days from the date of purchase to request a full refund.
LIMITED PRODUCT WARRANTY
Hykso warrants to the original purchaser that your Product shall be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase, except that if you reside in the European Economic Area (EEA) and you purchased your Hykso product in the EEA, the warranty period is two (2) years from the date of purchase.
You acknowledge that you have verified the compatibility of the Products you are purchasing with other required equipment (e.g., ensuring that your mobile device and/or operating system system is compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products and does not otherwise constitute a basis for receiving a refund after the 30-day refund policy identified above.
LIMITATIONS ON LIABILITY
IN NO EVENT WILL HYKSO BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT HYKSO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. HYKSO AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL HYKSO’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO HYKSO’S BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Hykso grants to you a nonexclusive, nontransferable license to use the Software, in executable form, solely as embedded in the Products, solely for your internal, non-commercial use. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of Hykso, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Hykso reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement.
You agree that any dispute between you and Hykso arising out of or relating to these Terms, or any other Hykso products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
The Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
INFORMAL DISPUTE RESOLUTION
We want to address your concerns without needing a formal legal case. Before filing a claim against Hykso, you agree to try to resolve the Dispute informally by contacting [email protected]. We’ll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Hykso may bring a formal proceeding.
WE BOTH AGREE TO ARBITRATE
You and Hykso agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
OPT-OUT OF AGREEMENT TO ARBITRATE
You can decline this agreement to arbitrate by contacting [email protected] within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, Orange County, California, or any other location we agree to.
The AAA rules will govern payment of all arbitration fees. Hykso will pay all arbitration fees for claims less than $75,000. Hykso will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
EXCEPTIONS TO AGREEMENT TO ARBITRATE
Either you or Hykso may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Hykso Products or services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
NO CLASS ACTIONS
You may only resolve Disputes with Hykso on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed under our agreement.
JUDICIAL FORUM FOR DISPUTES
In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Hykso agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both you and Hykso consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
LIMITATION ON CLAIMS
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Hykso Products or services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
You may not assign or transfer these Terms, or any order accepted by Hykso hereunder, in whole or in part, by operation of law or otherwise, without Hykso’s express prior written consent. Any attempt to do so, without Hykso’s consent, will be null and of no effect. Hykso may freely assign these Terms.
Hykso will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
The failure by Hykso to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms constitute the complete and exclusive agreement between Hykso and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of each party.
You will not export or re-export, directly or indirectly, the Products, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorization from the appropriate governmental authorities.
All notices required or permitted to be given under these Terms will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.
We are always pleased to hear from the members of the Hykso community. However, neither Hykso, nor any of its employees, may accept or consider any unsolicited ideas, including ideas for new or improved products or services, new marketing campaigns or product or service names. Therefore, please do not submit any such unsolicited ideas in any form to Hykso or any of its employees. This policy is necessary to avoid potential misunderstandings or disputes that may arise if our new products or services or marketing campaigns were to appear similar to an idea submitted by you.
If, despite our policy, you still submit an idea to us, then regardless of anything contained in your submission you agree that the following shall apply: (i) we shall have no obligation to review the submission; (ii) the submission and its contents shall automatically become the property of Hykso, without any compensation to you; (iii) we may consider the submission and its contents to be non-confidential and non-proprietary; and (iv) we may redistribute or use (for commercial purposes or otherwise) the submission and its contents for any purpose and in any way, without any compensation to you (collectively, the “Terms and Conditions”).
If a member of the Hykso community provides us (at our request or otherwise) a comment or suggestion regarding our products or services (including the Hykso dashboard, our mobile app or any of our devices) through any means, such as our Product Development web forums, help forums or via any social network, the Terms and Conditions set forth above shall also apply thereto.
At Hykso Inc. (“Hykso”), we respect the intellectual property rights of others and expect our users to do the same.
It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the accounts of users who repeatedly infringe the copyrights of others in accordance with the U.S. Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov).
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, and believe that any material available on or through the Hykso website, including applications, products, user-generated content, posts or materials on user forums, or any other content (collectively referred to as “Content”), infringes upon your copyrights, you may report alleged copyright infringements by providing the information in the following DMCA Notice of Alleged Infringement (“Notice”) and delivering it to Hykso’s Designated Copyright Agent identified below. Upon receipt of the Notice, we will take whatever action, in our sole discretion, we deem appropriate, including removal of the Content. If we remove or disable access in response to such a notice, we may notify the owner or administrator of the Content so that he or she can make a counter notification.
Please note that filing a report of intellectual property infringement is a serious matter with legal consequences. Any person who knowingly materially misrepresents that material or activity is infringing could be liable for damages pursuant to section 512(f) of the DMCA or similar laws in other jurisdictions or countries. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney. You acknowledge that if you fail to comply with all of the notice requirements below, your copyright notice may not be valid.
DMCA NOTICE OF ALLEGED INFRINGEMENT
- Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
- Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site(s) where such material may be found.
- Provide your mailing address, telephone number, and, if available, email address. (Note that we may provide your contact information, including your name and email address, the name and address of the owner of the right in question, and/or the contents of your report to the person who posted the material you are reporting.)
Include both of the following statements in the body of the Notice:
- “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
- “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Hykso’s Designated Copyright Agent:
c/o Hykso, Inc.
1691 Kettering St., Suite 201
Irvine, California 92614
Phone:1 (855) 236-8728