7. Legal Considerations
Confidentiality
You agree that the configuration and information contained in a Non‑Production Instance, Apps and any information provided to you in connection with a Hiper Hipo event will be considered and referred to as “Hiper Hipo Confidential Information”). Notwithstanding the foregoing, Hiper Hipo Confidential Information shall not include: (a) information that is generally and legitimately available to the public through no fault or breach of yours; (b) information that is generally made available to the public by us; (c) information that is independently developed by you without the use of any Hiper Hipo Confidential Information; (d) information that was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation; or (e) any third‑party software and/or documentation provided to you by us and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation.
Unless otherwise expressly agreed or permitted in writing by Hiper Hipo, you agree not to disclose, publish, or disseminate any Hiper Hipo Confidential Information to anyone. You agree not to use Hiper Hipo Confidential Information in any way, including, without limitation, for your own or any third party’s benefit without the prior written approval of an authorized representative of Hiper Hipo in each instance. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Hiper Hipo Confidential Information. You acknowledge that unauthorized disclosure or use of Hiper Hipo Confidential Information could cause irreparable harm and significant injury to Hiper Hipo that may be difficult to ascertain. Accordingly, you agree that we will have the right to seek immediate injunctive relief to enforce your obligations under this Agreement in addition to any other rights and remedies we may have. If you are required by law, regulation or pursuant to the valid binding order of a court of competent jurisdiction to disclose Hiper Hipo Confidential Information, you may make such disclosure, but only if you have notified us before making such disclosure and have used commercially reasonable efforts to limit the disclosure and to seek confidential, protective treatment of such information. A disclosure pursuant to the previous sentence will not relieve you of your obligations to hold such information as Hiper Hipo Confidential Information.
Paid Content
Certain parts of the Website may grant you access to certain proprietary content (including, without limitation, training modules, video presentations and audio recordings) that we may make available to you from time to time for a separate fee (“Paid Content”). Paid Content shall be considered Hiper Hipo Confidential Information, unless otherwise agreed or permitted in writing by Hiper Hipo. You may not share the Paid Content with anyone, including, without limitation, employees and contractors working for the same entity as you. Subject to these terms and conditions, we grant you a non‑exclusive, non‑transferable, personal license to access and use the Paid Content upon your purchase, provided that you may only download one (1) copy of the Paid Content and such download must be completed within the time period specified by us for such download. Except as expressly permitted by us, you shall not modify, translate, reproduce, distribute, or create derivative works of the Paid Content or any part thereof. You shall not sell, sublicense, rent, lease, loan, assign or otherwise transfer any rights in the Paid Content. We and/or our licensor(s) retain ownership of the Paid Content itself and any copies or portions thereof. The Paid Content is licensed, not sold, to you by us for use only under this Agreement, and we reserve all rights not expressly granted to you. Your rights under this license to use and access the Paid Content will terminate automatically without notice from Hiper Hipo if you fail to comply with any of these provisions.
Copyright Infringement
We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Website infringe your copyright, you may request removal of those materials (or access thereto) from the Website by submitting written notification (a “DCMA Notice”) to our copyright agent (designated below) in accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”)
Our designated Copyright Agent to receive DMCA Notices is:
Hiper Hipo, Inc.
Attn: Legal Department, Copyright Agent
712 Vista Blvd Ste 156, Waconia, MN, USA
Copy to legal@HiperHipo.com
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
If you believe that material you posted on the site was removed or access to it was disabled by mistake or misidentification, you may file a counter‑notification with us by submitting written notification to our copyright agent (identified above) pursuant to the DMCA.
It is the policy of Hiper Hipo to terminate the user accounts of infringers.
Regional Legal Considerations
The owner of the Website is based in the state of Minnesota in the United States. The Website can be accessed from countries around the world. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. Access to the Website from territories where the Website or any of its services or products are illegal is prohibited. You acknowledge that you remain responsible at all times for your compliance with U.S. and all applicable export and related statutes and regulations.
Disclaimer of Warranties
Hiper Hipo cannot and does not promise or warrant that any aspect of the Website, including the Community Services, Documentation, Development Tools, Store, Apps, or any other Website Content is free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti‑virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. HIPER HIPO WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL‑OF‑SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
AS BETWEEN YOU AND HIPER HIPO, YOUR USE OF THE WEBSITE AND NON‑PRODUCTION INSTANCES, INCLUDING COMMUNITY SERVICES, USER CONTRIBUTIONS, APPS, DEVELOPMENT TOOLS, DOCUMENTATION AND ANY OTHER WEBSITE CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, IS AT YOUR OWN RISK. THE WEBSITE, INCLUDING THE WEBSITE CONTENT, NON‑PRODUCTION INSTANCES AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, ARE PROVIDED TO YOU BY HIPER HIPO ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER HIPER HIPO NOR ANY PERSON ASSOCIATED WITH HIPER HIPO MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, SUITABILITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER HIPER HIPO NOR ANYONE ASSOCIATED WITH HIPER HIPO REPRESENTS OR WARRANTS THAT THE WEBSITE, INCLUDING THE WEBSITE CONTENT OR ANY SERVICES OR MATERIALS OBTAINED THROUGH THE WEBSITE, WILL BE ACCURATE, RELIABLE, ERROR‑FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
HIPER HIPO HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE WEBSITE, THE WEBSITE CONTENT, NON‑PRODUCTION INSTANCES OR ANY SERVICES OR ITEMS OBTAIN THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON‑INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. YOU MAY RECEIVE WARRANTIES FROM THE CONTRIBUTOR OF AN APP PURSUANT TO THE APP CONDITIONS UNDER WHICH SUCH APP IS PROVIDED TO YOU; HOWEVER, HIPER HIPO SHALL HAVE NO LIABILITY TO YOU WITH RESPECT TO SUCH WARRANTIES OR ANY OTHER TERM IN THE APP CONDITIONS.
Limitation of Liability
EXCEPT TO THE EXTENT THAT A DISCLAIMER OF LIABILITY IS PROHIBITED UNDER APPLICABLE LAW, IN NO EVENT WILL HIPER HIPO, ITS AFFILIATES AND ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, INCLUDING ANY COMMUNITY SERVICES, NON‑PRODUCTION INSTANCE, USER CONTRIBUTIONS, APPS, WEBSITE CONTENT OR SERVICES OR MATERIALS MADE AVAILABLE THROUGH THE WEBSITE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
Indemnification
To the maximum extent permitted by applicable laws, you agree to defend, indemnify and hold us, our affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers harmless from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees and other costs of defense) resulting from your violation of these Terms of Use or your use of the Website, user data, Development Tools and Non‑Production Instances (including anything that you develop using the Development Tools and Non‑Production Instances), including, without limitation, any use of the Website’s content, unpaid tax liability, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Website. We will be entitled, at our sole expense, to participate in the defense and settlement of the claim or action with counsel of our choosing. You may not settle any claims without our prior written consent (which will not be unreasonably withheld). You shall have no obligation to indemnify Hiper Hipo against a claim to the extent that a claim is based on the alleged infringement of intellectual property rights by the Hiper Hipo Products (independent of your App or other products or services of yours).
Export Restrictions
You may not access, download, use or export materials posted to the Website in violation of U.S. export laws or regulations or in violation of any other applicable export or import laws or regulations. You agree to comply with all export laws and restrictions and regulations of any United States or foreign agency or authority.
You acknowledge that the Non‑Production Instances, Apps, Documentation and Development Tools are subject to the U.S. Export Administration Regulations (the “EAR”) and you shall comply with the EAR. Without limiting the foregoing, you represent and warrant that: (a) you are not located in, and shall not use the Documentation and Development Tools from, any country that is subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan and Syria); (b) you shall not use the Documentation and Development Tools in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, sounding rockets or unmanned air vehicle systems; and (iii) you are not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, you are responsible for complying with any local laws that may impact your right to import, export or use the Documentation and Development Tools.
U.S. Government Rights
All Hiper Hipo software is commercial computer software and all services are commercial items. “Commercial computer software” has the meaning set forth in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and the Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227‑7014(a)(1) for defense agency purchases. If the software is licensed or the services are acquired by or on behalf of a civilian agency, We provide the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of these Terms of Use as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the software is licensed or the services are acquired by or on behalf of any agency within the DOD, we provide the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of these Terms of Use as specified in DFARS 227.7202‑3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227‑7015. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses Government rights in computer software or technical data.
Waiver and Severability
No waiver of these Terms of Use by us shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of ours to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.
Third Party Beneficiaries
There are no third‑party beneficiaries to these Terms of Use, except that other users of the Website shall be third‑party beneficiaries of provisions of Section 4 (Store and Share) herein in which you promise not to assert claims for breach of warranty, breach of contract, patent infringement, or misrepresentation against any third‑party user based on the use or performance of a App.
Classification of Website and Hiper Hipo Products
In the event of a dispute, the categorization of any subject matter as either the Website or a Hiper Hipo Product shall be made by Hiper Hipo in its sole discretion, and Hiper Hipo may reclassify as a Hiper Hipo Product subject matter previously included in the Website.
Termination
Hiper Hipo may terminate these Terms of Use at any time for any reason by giving you written notice, and all licenses, permissions and other rights granted to you hereunder shall immediately terminate (including the license rights granted by third parties under Section 4 (Store and Share) herein to permit you to user their Apps). Notwithstanding the termination of these Terms of Use for any reason, Sections 6 (Intellectual Property) and 9 (Legal Considerations) herein shall survive.
Governing Law and Jurisdiction
These Terms of Use and any dispute or claim arising out of, or related to, them, their subject matter or their formation (in each case, including non‑contractual disputes or claims) shall be governed by and construed in accordance with the internal laws of the State of Minnesota in the United States without giving effect to any choice or conflict of laws provision or rule (whether of the State of Minnesota or any other jurisdiction).
Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota, in each case located in the Minneapolis, Minnesota although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You hereby irrevocably waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Entire Agreement
The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and us with respect to the Website and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Website. For the avoidance of doubt, these Terms of Use do not supersede any Subscription Agreement or other agreement pursuant to which you have been granted the right to use or access a Hiper Hipo Product, except to the extent that these Terms of Use provide that Apps or other Website Content are not subject to warranty or entitled to support, service credits, refunds, or other service entitlements under a Subscription Agreement.