Terms of Use

Welcome to Hypeach.com! The Hypeach LLC (“HYPEACH,” “we,” “our,” “us”) website (including at https://www.hypeach.com/), desktop application, mobile application, or other platforms (collectively, the “Platforms”) provides the product and/or services (hereinafter, the “Service”) subject to the terms set forth herein. When you use any of our Services, you are subject to the policies, terms, and conditions applicable to such Services. We reserve the right to change any of the information on HYPEACH and these terms and conditions at any time. By using HYPEACH, you are indicating your agreement to the Terms and Conditions contained herein. Please read them carefully. If you do not agree to either the Terms of Use or the Privacy Policy, please refrain from using the Platforms. HYPEACH is committed to complying with all applicable laws and regulations governing the content of the Platforms and Services provided by HYPEACH.

 

USE OF HYPEACH

Subject to these Terms and Conditions, HYPEACH hereby grants you a limited, revocable, non-exclusive license to access and use the HYPEACH website on your computer or mobile device. You may not reproduce, modify, display or otherwise make commercial use of any content from the HYPEACH website unless expressly permitted by HYPEACH. HYPEACH reserves the right to refuse service to any individual at its sole discretion and without limitation if it believes that a user's conduct violates applicable laws or is otherwise harmful to HYPEACH.

 

NOTICE TO MINORS

By using our Platforms you represent and warrant that you are at least 18 years of age or are using our Platforms with the permission and supervision of a parent or guardian. No one under eighteen (18) years of age may provide any personal information. HYPEACH does not knowingly collect personal information from children under the age of eighteen (18).

If you are under eighteen (18) years of age, please do not send any information about yourself to us, or to anyone else through this Site. Personal information includes, but is not limited to, your name, address, telephone number, or email address. If we learn we have collected any personal information from anyone under the age of eighteen (18), we will immediately delete that information, per the requirements of the Children’s Online Privacy Protection Act and any other applicable laws. If you believe we have received information from or about a child under the age of eighteen (18), please contact us at info@hypeach.com with a subject heading Privacy Policy. 

 

MEMBER ACCOUNTS

In order to use certain features of the Platforms, you may need to create an account. At any time, HYPEACH has the right and sole discretion to approve any user for an account. HYPEACH may decline to allow anyone an account on the Platforms with or without reason.

If the Platforms requires you to create a user account, you are only to use your user account and not the user account of another without their permission. You agree you shall immediately notify HYPEACH of any unauthorized use of your username, password, identification/security code, or any other breach of security whatsoever. In order to safeguard your security, the security of these Platforms, and the user experience of others, you agree to log out of your account at the end of each session on the Platforms. Please remember to exercise particular caution when accessing your account from a public or shared computer so others are not able to view or record your password or other personal information.  

As you browse these Platforms, you may be asked to provide certain registration details or other information. It is a condition of your use of the Platforms that all the information you provide on the Platforms is current, accurate, and complete.

We reserve the right to disable any user identification/security code, username, or password, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have failed to comply with any provision of the Terms of Use, Privacy Policy, or any other applicable agreement, law, or regulation.

In the event you apply for and/or are approved to be a Style Ambassador for Hypeach’s Style Ambassador Affiliate Program, you are subject to the terms and conditions contained in our Style Ambassador Affiliate Program, which can be accessed through the following link https://hypeach.com/pages/affiliate-terms.

 

TERMINATION

HYPEACH reserves the right to terminate your use of the Platforms and/or account at any time for any reason, or for no reason, with or without notice to you. For purposes of explanation and not limitation, most HYPEACH account suspensions and terminations are the result of violations of the Terms of Use. In case of minor violations of these rules, HYPEACH may provide you with a prior warning and/or suspend your use of the HYPEACH account due to your non-compliance prior to terminating the Agreement or modifying or deleting a HYPEACH account. You may terminate your use of the Platforms and/or account by ceasing your access of the Platforms and/or closing your account.

 

MOBILE APPLICATIONS

In connection with the Platforms, we may offer mobile applications for public consumption and/or download (the “Apps”). Please note, Apple, Inc. and Google, Inc. or any other third party provider for the Apps may have separate Terms of Use, which must be followed. You should always read and understand the policies of any third-party provider before making any purchase or downloading any of the Apps. 

 

PAYMENT TRANSACTIONS 

If you wish to purchase any product or service made available through the Platforms (each such purchase, a “Transaction”), you may be asked to supply certain information relevant to your Transaction including, without limitation, your name, credit card number, the expiration date of your credit card, bank account information, your billing address, insurance options, and your shipping information/options. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any Transaction. By submitting such information, you expressly grant to HYPEACH the right to provide such information to third parties, such as our payment processing service provider, for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.

All descriptions, images, references, features, content, specifications, products, and prices of products and services described or depicted on the Platforms are subject to change at any time without notice. Certain information and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on the Platforms does not imply or warrant that these products or services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any product or service purchased from the Platforms. By registering as a user and/or purchasing any products or services on the Platforms, you represent that the products or services ordered will be used only in a lawful manner. HYPEACH reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) impose conditions on the honoring of any discount, introductory offer, coupon, coupon code, promotional code, or other similar promotion; (iii) bar any user from making or completing any or all Transaction(s); and (iv) refuse to provide any user with any product or service.

You agree that by placing an order on the Platforms, you are entering into a binding contract with HYPEACH and agree to pay all charges that may be incurred by you or on your behalf through the Platforms, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.

 

RETURN AND REFUND POLICY

Please see our return policy here.

 

USER REVIEWS, PHOTOS, & COMMENTS

Any and all content posted by you to the Platforms or through a hashtag provided by HYPEACH, to HYPEACH’s social media pages, mobile application and mobile store pages, or any other area to which you may have access to or the ability to enter, upload, and/or post content, must comply with these Terms of Use, the Privacy Policy, any other agreement controlling your relationship with HYPEACH, and any applicable federal, local, or state laws and regulations.

By using the Platforms, you are agreeing to these Terms of Use, and warrant that: (i) you have obtained the necessary permissions of any and all third parties for any content posted by you; (ii) to the best of your knowledge, any and all content posted by you is truthful and accurate, and not misleading in any manner; and (iii) you are not violating any law, regulation, code, or otherwise in your posting of the content, including intellectual property, right of privacy, and defamation.

You further agree to indemnify, defend, and hold harmless HYPEACH from any and all liability, claim, cause of action, loss, or damages resulting from content you post to the Platforms, to HYPEACH’s social media pages, mobile application and mobile store pages, or any other area to which you may have access to or the ability to post content.

You hereby grant an irrevocable, fully prepaid, worldwide, perpetual, and transferable license to HYPEACH to use, copy, distribute, publish, and modify anything posted by you to the Platforms. All such submissions shall automatically become HYPEACH’s sole and exclusive property. You also grant HYPEACH the right to use the name that you submit, if any, in connection with said submission. 

 

SUBMITTED IDEAS

Any ideas, comments, suggestions, notes, drawings, concepts, or other such information submitted to HYPEACH, whether through the Platforms or by other means, shall be deemed to be non-confidential and non-proprietary. HYPEACH does not owe you any confidentiality or nondisclosure obligations, whether express or implied. HYPEACH be entitled to unrestricted use of the idea, comment, suggestion, note, drawing, concept, or other information for any purpose whatsoever, commercial or otherwise, without compensation to you.

 

COMMUNITY GUIDELINES

The Platforms, Linked Sites, and Social Media Sites may include the ability to post comments or otherwise engage in communications with third parties through bulletin boards, chat rooms, blogs, comment sections, or other community forums (the “Community Forums”). The following governs the use of the Community Forums:

 

  • HYPEACH will monitor the Community Forums on a regular basis for any violations of these Terms of Use, violation of the Privacy Policy, or any illegal content.
  • HYPEACH will not act as an arbiter for any dispute or disagreement between users and shall have no liability to you for any content posted in the Community Forums and is under no obligation to edit or modify information available in the Community Forums.
  • HYPEACH reserves the right, in its sole and complete discretion, to refuse to post, or remove, any material submitted to the Community Forums.
  • You acknowledge and agree that HYPEACH may store any material posted to the Community Forums. You further acknowledge and agree that HYPEACH may use material posted by you in the Community Forums for any purpose whatsoever, including but not limited to incorporating the submission into content that may be commercial in nature.
  • Prohibited Materials – you are expressly prohibited from submitting any of the following:
    • Any submissions that disparages competitive products, is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, racially offensive, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, or otherwise objectionable.
    • Any submission that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law, including without limitation, material that depicts child pornography, acts of violence, drug use, or would violate the regulations of the U.S. Securities and Exchange Commission, or any rules of a securities exchange.
    • Any submission that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary rights of any party.
    • Any submission that impersonates any person or entity, or otherwise misrepresents your affiliation with a person or entity.
    • Unsolicited promotions, political campaigns, advertising, or solicitations.
    • Private information of any third party, including without limitation, addresses, phone numbers, email addresses, social security numbers, credit card numbers, or any other similar piece of information.
    • Viruses, spyware, Trojans, corrupted data, or any other harmful, disruptive, or destructive files.
    • Any other submission that, in HYPEACH’s sole and complete discretion, is inappropriate or objectionable, or which restricts or inhibits any other person from using or enjoying the Platforms, or which may expose HYPEACH or its users to any harm or liability of any type.

 

NO ARCHIVE

The Platforms are not and shall not function as an archive. HYPEACH shall have no liability to you or any other person for loss, damage, or destruction to any submission. You shall be solely responsible for maintaining independent archival and backup copies of any submission.

 

INTELLECTUAL PROPERTY RIGHTS

Unless otherwise noted, all content on the Platforms, including any names, logos, trademarks, service marks, brand identifiers, copyrights, trade dress, or other intellectual property appearing on the Platforms, including the organization, compilation, look and feel, illustrations, graphics, artworks, videos, music, software, and other works of the Platforms (the “Works”) are owned by HYPEACH, or used with permission of the third party (the “Owners”), and are protected under copyright, trademark, and other intellectual property and proprietary rights laws. All rights, title, and interest to the Works remain with HYPEACH and/or the Owners. Nothing herein shall be interpreted to grant you a license to use any of the Works without the permission of HYPEACH and/or the Owners.

 

PRIVACY POLICY

Please review our Privacy Policy here.

 

CORRECTION OF ERRORS AND INACCURACIES

We endeavor to present the most recent, most accurate, and most reliable information on our Platforms at all times. However, the information may contain typographical errors or inaccuracies and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies, or omissions and to change and update information at any time without prior notice (including after you have submitted your order). Please not that such errors, inaccuracies, or omissions may relate to product description, pricing, and availability. We apologize for any inconvenience this may cause you. If you are not fully satisfied with your HYPEACH purchase, you may return it with the original HYPEACH packing receipt. Please see our Return Policy.

 

TYPOGRAPHICAL ERRORS

In the event a HYPEACH or Hypeach Boutique catalog product is listed at an incorrect price due to typographical error or systems error, HYPEACH shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. HYPEACH shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and payment has been made.

 

COMMUNICATIONS TO YOU

By submitting your email address into our email submission form, you agree that HYPEACH may send electronic mail to you for purposes that HYPEACH deems appropriate. 

 

CONTESTS & PROMOTIONS

Any contests or promotions described or posted on the Platforms will be governed by the rules regulating such event.

 

COLOR

HYPEACH has made every effort to display, as accurately as possible, the colors of our products that appear on our Platforms. However, as the actual colors you see depend on your screen, we cannot guarantee that your screen's display or colors you see will be accurate.

 

CONTENT FROM THIRD PARTIES

From time to time, we may engage third parties or Affiliates to assist us in providing certain aspects of the Services, including but not limited to marketing functions. You agree that we may engage such third parties in providing Services to you, as determined by us. 

Any and all content from third parties is for informational purposes only and HYPEACH does not verify the accuracy or truthfulness of any material. Specifically, HYPEACH does not independently verify information related to the third-parties’ content located on the Platforms, and whether such content is in compliance with all applicable laws, or any other information relating to the third-party content.

 

OPTIONAL THIRD-PARTY TOOLS

We may provide you with access to third-party tools, which we neither monitor nor wield any control or input. You acknowledge and agree that we provide access to such tools on an “as is” and “as available” basis without any warranties, representations, or conditions of any kind, and without any endorsement. You also acknowledge and agree that HYPEACH does not have any liability whatsoever arising from or relating to your use of optional third-party tools. Any use by you of optional tools offered through the Platforms is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s). We may also, in the future, offer new services and/or features through the Platforms (including, the release of new tools and resources), and such new features and/or services shall also be subject to these Terms of Use.

 

ENTIRE AGREEMENT; MODIFICATION

These Terms together with our Polices, any Ancillary Agreements, and any other document referenced herein, constitutes the entire understanding between us and you with respect to the subject matter hereof. You agree that we may amend, modify, or alter these Terms and/or our Polices at any time in our sole discretion. We will notify you about changes to these Terms by placing the updated Terms on the Website. You agree that your use of the Services after such notification will constitute acceptance by you of such changes to the Terms.

 

RESTRICTIONS ON USE

You are permitted to use the Works and/or any services and products on the Platforms for lawful purposes as provided in these Terms of Use; any other use or misuse of any of the Works is strictly prohibited. In particular, you are prohibited from using the Platforms or its contents (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Platforms or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Platforms or any related website, other websites, or the Internet. HYPEACH grants you a non-exclusive, limited, personal, non-transferable, revocable license to access and use the Works, without right to sub-license, under the following conditions: you shall not, without HYPEACH express written consent: (i) copy, re-transmit, modify, disseminate, display, perform, reuse, re-post, broadcast, circulate, or otherwise distribute the Works, or modify or re-use all or any part of the Works; (ii) use any trade name, trademark, or brand name of HYPEACH in metatags, keywords, and/or hidden text; (iii) create derivative works from the Works or commercially exploit the Works, in whole or in part, in any way; and (iv) use the Platforms, the Works, and/or any portion thereof, in any manner that may give a false or misleading impression, attribution, or statement as to HYPEACH, the Owners, or any third party referenced therein. HYPEACH reserves all other rights.

You shall not alter, remove, or obscure any copyright notice, digital watermarks, trademark notices, proprietary legends, or any other notice included in the Works. Except as expressly provided herein, nothing on the Platforms shall be construed as granting or conferring any license under HYPEACH and/or the Owners’ intellectual property rights, whether by estoppel, implication, or otherwise. Notwithstanding anything herein to the contrary, HYPEACH may revoke any of the foregoing rights and/or your access to the Platforms, or any part thereof, including blocking your IP address, at any time without prior notice.

 

SOCIAL MEDIA AND LINKED SITES

From time to time, the Platforms may include features and functionality that allow you to interact with other sites that are not under our control (“Linked Site”), including various social media pages (“Social Media Site”). HYPEACH provides these features, functionality, and links to you as a convenience and does not endorse any Linked Site or Social Media Site. HYPEACH is not responsible for the contents or transmission of any Linked Site or Social Media Site, or for the terms of use or privacy policy, of any Linked Site or Social Media Site. You should carefully read the policies for the sites you visit. Under no circumstances are you authorized to make any claim regarding HYPEACH or any of its products on any Social Media Site regardless of any material connection you may have with HYPEACH or your receipt of any consideration. If you make any claim regarding HYPEACH or any of HYPEACH’s products or services on a Social Media Site in violation of the foregoing, you, and not HYPEACH, shall be solely responsible and liable therefor.

 

DISCLAIMERS

(a) THE WEBSITE, CONTENT, AND SERVICES ARE PROVIDED ‘AS IS’, ‘AS AVAILABLE’ AND ‘WITH ALL FAULTS’ WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SERVICES, INCLUDING BUT NOT LIMITED TO PHYSICAL INJURY OR DEATH AS WELL AS DAMAGES TO PERSONAL PROPERTY. WITHOUT LIMITING THE FOREGOING, WITH RESPECT TO THE WEBSITE, AND/OR THE SERVICES, HYPEACH EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, ACCURACY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUIET TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. HYPEACH MAKES NO WARRANTY THAT THE WEBSITE AND/OR CONTENT WILL MEET YOUR NEEDS, EXPECTATIONS, BE TO YOUR SATISFACTION, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE, BUG-FREE, OR MALWARE-FREE BASIS. HYPEACH MAKES NO WARRANTY REGARDING THE QUALITY OF THE WEBSITE OR CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HYPEACH OR THROUGH THE WEBSITE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

 

RELEASE AND WAIVER OF CLAIMS

To the maximum extent permitted by applicable law, YOU ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, AND DISCHARGE all claims, actions, demands, suits, or proceedings (“Claims”) against US and our AFFILIATES, including any and all liability for actual and/or consequential damages, costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature arising from or in any way related to: (A) THE SERVICES AND/OR THESE TERMS, (B) CONTENT AND/OR YOUR USER CONTENT, (c) YOUR TRANSACTIONS WITH LINKED SITES and/or Service Providers, (d) any inaccuracy, untimeliness or incompleteness of a USER’S representations OR WARRANTIES, and/or (E) any inaccuracy, untimeliness, or incompleteness of ANY AND ALL CONTENT obtained or accessed by or through the Services. FURTHER, if YOU ARE A RESIDENT OF THE STATE OF CALIFORNIA, you waive your rights under California Civil Code Section 1542, which states, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” You understand that any fact relating to any matter covered by THESE TERMS may be found to be other than now believed to be true, and accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights which you may have had under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.

 

LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY RELATED TO OR RESULTING FROM ANY ASPECT OF THE SERVICES, OR FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO (A) THESE TERMS and/or the SERVICES, (B) CONTENT AND/OR YOUR USER CONTENT, (c) YOUR TRANSACTIONS WITH LINKED SITES and/or Service Providers, (d) and/or (E) ANY OTHER ASPECT OF OUR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF CONTRACT, A BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall our total liability to you for all damages exceed an amount equal to the greater of: (i) the sums paid by you to us in connection with the Services, or (ii) $125. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

 

NO FRAMINING OR LINKING

Framing, in-line linking, or other methods of association with the Platforms are expressly prohibited without prior written approval from HYPEACH.

 

INTERNATIONAL USERS

The Platforms are hosted in the United States. If you are attempting to access the Platforms from a physical location within the European Union, Asia or any other region with laws or regulations governing data collection, use, and disclosure that differ from the United States, please be advised that your use of the Platforms is governed by United States law, this Privacy Policy, and the Terms of Use, and any other applicable agreement. If you provide Personal Information through the Platforms you are transferring your Personal Information to the United States and you consent to: such transfer; the application of the laws of the United States and the State of California with respect to any dispute arising from or related to the Privacy Policy and/or your use of the Platforms; exclusive jurisdiction of the courts of the State of California.

 

DISPUTE RESOLUTION

(a) In the event that any dispute arises with respect to the Services, these Terms, or any of our Policies, such dispute shall be resolved by binding arbitration in accordance with the Commercial Dispute Resolution Procedures of JAMS, Inc. in California. Any court action between you and us shall take place in the state courts located in Orange County, California or in the U.S. District Court for the state of California, as the case may be. You shall be liable for and shall reimburse us for our expenses and fees, including attorneys’ fees, in the event any arbitration or litigation arises between us and you. By using the Platforms and/or the Services, you irrevocably agree and consent to be bound to personal jurisdiction of and venue selection in the state courts located in California, or in the U.S. District Court for the Orange County District of California as the case may be, whether either arbitration or litigation arises between us and you. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE PLATFORMS AND/OR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

(b) YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS WE AGREE OTHERWISE, THE DECISION-MAKER MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE DECISION-MAKER MAY AWARD RELIEF ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS. ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.

(c) You agree that irreparable harm to us would occur in the event that any of the provisions of these Terms were not performed fully by you or were otherwise breached by you, and that money damages are an inadequate remedy for breach of the Terms because of the difficulty of ascertaining and quantifying the amount of damage that will be suffered by us in the event that these Terms are not performed in accordance with its provisions or is otherwise breached. It is accordingly hereby acknowledged that, notwithstanding any provision of this Section 15, we shall be entitled to petition the courts mentioned in Section 15(a) for an injunction or injunctions to restrain, enjoin and prevent a failure to perform these Terms by you, without positing bond or other security, and to enforce specifically such provisions of these Terms.

(d) Dispute Resolution Severability. If a court decides that any term or provision relating to our ability to submit any above-mentioned dispute to arbitration or to the above class action wavier according to this Section 15, the parties agree to litigate any such dispute according to Section 15(a) above and to replace any other such terms or provisions of Section 15(a) or Section 15(b) with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Section 15 shall be enforceable as so modified. In the event of any such severing, the remainder of these Terms will continue to apply.

 

INDEMNIFICATION

You agree to indemnify, defend, and hold harmless us and our Affiliates from and against any and all Claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of, under, or relating to: your use, misuse, or inability to use the Services; any infringement of a third party’s rights (including but not limited to intellectual property rights); a breach of a representation or warranty made by you; your interactions with a Service Provider; any Service Provider Work performed for you by a Service Provider; your User Content; any defamatory, offensive, fraudulent, or illegal use of the Services by you; any improper disclosure of Content by you; and any violation by you of these Terms or any of our other Policies.

 

SURVIVAL

All provisions of these Terms which must or which in accordance with its terms are intended to survive the earlier termination or expiration of these Terms and/or any license to access or use any portion of the Services granted by these Terms shall survive the earlier termination or expiration thereof.

 

CONTACTING YOU

By using the Services, you agree that we and our Affiliates may provide you with any notices or other communications about the Services electronically: (a) via email (in each case to the address that you provide), SMS message, or telephone call (in each case to the phone number that you provide), or (b) by posting to the Website. For notices made by email, the date of receipt will be deemed the date on which such notice is Transmitted. We will use best efforts to honor a User’s request to opt out of promotional messages, but under no circumstances will we be liable for Transmitting any Content to Users.

 

SEVERABILITY; NO WAIVER; ASSIGNMENT

The representations and warranties and/or covenants set forth herein are each to be construed as a separate agreement, independent of any other provisions of these Terms. Further, the invalidity or unenforceability of any provision, word, phrase, clause, sentence, paragraph or section of these Terms shall in no way affect the validity or enforceability of any other provision, word, phrase, clause, sentence, paragraph or section of these Terms, and any such invalid or unenforceable provision that is overbroad shall be deemed narrowed to the broadest term permitted by applicable law and shall be enforced as narrowed. If one or more of the provisions in these Terms is deemed invalid or unenforceable, then the remaining provisions will continue in full force and effect. Our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us as determined by us.

 

OUR RELATIONSHIP WITH YOU

With respect to you, we are an independent contractor only. Nothing in these Terms shall be deemed or is intended to be deemed, nor shall it cause, you and HYPEACH to be treated as a partnership, joint venture, or otherwise as joint associates for profit, or either you or us to be treated as the agent of the other.

 

CONSTRUCTION

Headings in these Terms are for convenience only, and shall not govern the meaning or interpretation of any provision of these Terms. Whenever the context requires, all words, including but not limited to defined capitalized terms, will include the masculine, feminine, and neuter, and each word will include the singular form, plural form, and other conjugations of that word. The word “or” connotes any combination of all or any of the items listed (e.g. in the same manner as “and/or”). The word “including” and its syntactic variants mean “includes, but is not limited to” and corresponding syntactic variant expressions.

 

GOVERNING LAW; ENGLISH LANGUAGE

You agree that: (a) the Services shall be deemed solely based in Orange County, California (where we have our headquarters), and (b) the Services shall be deemed passive which does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Orange County, California. These Terms, our Privacy Policy, and other Policies are governed by the laws of the State of California and of the United States of America, and without regard to conflicts of law principles. In the event of a conflict between these Terms and a foreign language version of the Terms, the English language version of these Terms shall govern. All disputes, claims and causes of action (and related proceedings) will be communicated in English.

 

COMPLIANCE

You represent and warrant that you shall comply with all applicable laws, statutes, ordinances, and regulations regarding use of the Services. We will cooperate with law enforcement agencies in any investigation of alleged unlawful activity of which we are made aware of regarding the use of our Services and may contact law enforcement if we are made aware of any use of our Services which potentially violates any applicable laws, statutes, ordinances, or regulations. The Services are designed and targeted to Users who reside in the United States. We make no representation that the Services are operated in accordance with the laws or regulations of, or governed by, other nations. By accessing the Services you certify that you meet the age and other eligibility requirements for use of the Services. Those who access or use the Services do so at their own volition and are entirely responsible for compliance with applicable law.

 

ABILITY TO ACCEPT TERMS OF USE

You affirm that you are more than the legal age in the territory in which you reside, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms of Use, and to abide by and comply with the Terms of Use.

 

CHANGES AND UPDATES

We may make changes to this Agreement and to the Platforms from time to time. We may do this for a variety of reasons including to reflect changes in or requirements of the law, new features, or changes in business practices. The most recent version of this Agreement will be posted on the Service athttps://www.hypeach.com/, and you should regularly check for the most recent version. The most recent version is the version that applies. If the changes include material changes that affect your rights or obligations, we will notify you in advance of the changes by reasonable means, which could include notification through the Service or via e-mail. If you continue to use the Service after the changes become effective, then you agree to the revised Agreement. You agree that this Agreement shall supersede any prior agreements (except as specifically stated herein), and shall govern your entire relationship with HYPEACH, including but not limited to events, agreements, and conduct preceding your acceptance of this Agreement. If you disagree with the terms of these Terms of Use at any time, your sole remedy is to terminate your use of the Platforms and inform us of such termination.

 

MISCELLANEOUS

If any part of these Terms of Use is determined to be invalid or unenforceable pursuant to applicable law, then it shall be construed in a manner which is valid and enforceable that is closest to the intentions set forth herein. The remainder of the Terms of Use shall remain in full force and effect.

 

FEEDBACK OR QUESTIONS

If you have questions, comments or a complaint about these Terms, you may send a written notice to us at support@hypeach.com.

 

Thank you for visiting our Platforms.

Updated: September 17, 2020