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These Terms of Service (“Terms of Service”) constitute a legally binding agreement made between you, on behalf of yourself or an entity (“Customer”, “Customers”, “User” “you”, “your”) and Hyros, Inc. (“Hyros”, “Company”, “we”, “us”). These Terms of Service govern your use of the website at www.hyros.com, and any other associated web or mobile websites, or media channel (hereinafter the “Website” or “Websites”), and your use of any services provided by Hyros (collectively “Service” and “Services”).
You agree that by accessing our Websites and using the Services, you have read, understood and agree to be bound by these Terms of Service. If you do not agree with the Terms of Service, you should stop using the Websites and Services.
Supplemental Terms of Service and other documents may be posted on our Websites and are expressly incorporated by reference. We reserve the right, in our sole discretion, to make changes and updates to these Terms of Service, at any time and for any reason. We encourage you to periodically review these Terms of Service and stay informed of any updates. We will inform you of any material changes to these Terms of Service using the contact information and methods you have provided to us. You will be subject to, and will be deemed to have been made aware of any changes to these Terms of Service by your continued use of the Websites and Services.
You affirm that you are more than 18 years of age, and are fully able and competent to agree to these Terms of Service, and to abide by and comply with these Terms of Service. The Services are exclusively for the use of adults 18 years of age or older, and if you are below the age of 18 you are prohibited from using the Services.
As used in these Terms of Service, the following defined terms shall apply:
2.1. Company Marks shall mean any names, logos, icons, images, branding, or any other associated content or media used to identify the Company.
2.2. Customer Data shall mean data, including personally identifiable data, collected directly by Company from Customers for the purposes of enabling Customer accounts or the Services.
2.3. Customer End-User Data shall mean data, including personally identifiable data, that is collected by Customers and provided to Company.
2.4. Customer Sites means websites, webpages, applications, landing pages, or any other media provided to the Company or integrated with the Services, for the purposes of enabling the Company to provide the Services.
2.5. Effective Date means the date on which Customer makes its first payment towards the Fees.
2.6. Order means any initial or subsequent ordering document and/or online request for access to the Services submitted to Company, an authorized reseller of Company and/or through Company’s product websites.
2.7. Use Level means the model by which Company measures, prices and offers the Services to Customer as set forth on the applicable price list, websites, or Order.
3.1. Right to Use Services. Subject to these Terms of Service, Company will provide the Services set forth in your Order. Company hereby grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right to use any components as may be required to access and use the Services. Customer agrees to use the Services in accordance with the Company’s Privacy Policy, available at https://hyros.com/privacy.html and incorporated by reference (the “Privacy Policy”)
3.2. Technical Support. Technical support for the Services is provided as set forth in the applicable Order. Customer agrees to use the Services for professional or business use. Company reserves the right to update the Services only at its discretion. Updates to the Services are included in the Fees, and Customer agrees to use the most current version of the Service.
4.1. Proprietary Rights. Except for the limited rights granted herein, Customer has no right, title or interest in or to the Company Marks or Services or any components provided by Company in connection with the Services or any intellectual property rights related thereto. Customer acknowledges that Company or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the Company Marks and the Services and any components, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades, and interfaces thereto.
4.2. Company Marks. Unless expressly authorized under the terms of this Agreement, Customer agrees that it shall not use, register or apply for registration of any trademark, service mark, business name, company/trade name, domain name or social media account name or handle which is comprised of or incorporates in whole or in part any Company Marks, or is otherwise confusingly similar to a Company Mark. In the event of any breach of this provision, Customer agrees that it will do all things necessary to effect the transfer of any such same or similar trademark, service mark, business name, company/trade name, domain name or social media account name or handle to Company, including but not limited to executing assignment documentation. Except as expressly granted herein, no license regarding the use of Company’s copyrights, patents, trademarks, service marks or company/trade names is granted or will be implied. For any authorized use of the Company’s Marks, Customer represents that it has reviewed and will adhere to Company’s Trademark & Copyright Guidelines, and incorporated herein by reference and as may be periodically updated by Company. As noted above, reproduction, copying, or redistribution for commercial purposes of any materials or design elements on the Website or Services is strictly prohibited without the express written permission of Company. For information on requesting such permission, please contact us using the contact information listed in the section entitled “About Us”.
4.3. You agree that any ideas, suggestions, or improvements that you provide to Company about Company’s products or services shall be owned by Company and that Company is free to include such ideas in future products without compensation to you.
5.1. Orders. Customer may order Services using the Company’s then-current ordering processes. All Orders are subject to acceptance by Company at its discretion. All Customer information provided by or on behalf of Customer must be current, complete and accurate and Customer is responsible for keeping such information updated. Order information is subject to automatic processing by Company for the purposes of managing Customer’s account.
5.2. Fees and Payment. When you execute an Order you will commit to a fee amount, including any one-time implementation fees (collectively “Fees”), and a payment schedule (“Payment Schedule”). Your Payment Schedule may either set forth a one-time payment of your Fees (“Paid In Full Payment Schedule”) or monthly installment payments towards your Fees (“Monthly Payment Schedule”).
For Orders subject to a Paid In Full Payment Schedule, the entirety of your Fees will be due on the Effective Date.
For Orders subject to a Monthly Payment Schedule, your monthly payment will be due on the Effective Date and and each monthly anniversary from the Effective Date.
Customer agrees to notify Company of any fee dispute within fifteen (15) days of such payments due date and Customer agrees to work in good faith to promptly resolve any dispute and pay fees within fifteen (15) days following resolution of the dispute. When applicable, Customer authorizes Company (i) to take steps to determine whether a debit/credit card number provided is valid, and (ii) charge such card in accordance with the billing frequency specified in the Order. Company reserves the right to terminate its agreement with Customer immediately in the event any payment information is found at any time to be inaccurate, incomplete and/or not current. Company shall not be responsible for any overdraft charges or other fees that may be incurred due to Company use of Customer’s card for payment hereunder.
5.3. Additional Services. Customer may order additional Services at any time by executing an additional order or enter into a written amendment executed by both Customer and Company.
5.4. Late Payments. Company reserves the right, in its discretion, to (i) suspend or terminate the Services or any portion thereof for non-payment of undisputed Fees, and (ii) impose a charge to restore archived data from delinquent accounts. Customer agrees to reimburse Company for all reasonable costs and expenses incurred in collecting delinquent amounts.
5.5. Taxes and Withholding. Customer shall be responsible for all applicable taxes (including but not limited to withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), tariffs, Universal Services Fund (USF) fees (collectively, “Taxes”) imposed by any government entity or collecting agency based on the Services, except those Taxes based on Company net income, and/or those Taxes for which Customer has provided a certificate confirming Customer is otherwise exempt. If Customer fails to satisfy its Tax obligations herein, Customer agrees to reimburse Company for any Taxes paid on Customer’s behalf and indemnify and hold Company harmless against any claim, liability and/or penalties resulting therefrom.
5.6. Refund Warranty. You may receive a full refund for Services associated with a Paid In Full Payment Schedule for plans with a duration greater than one month, if a request is submitted in writing within ninety (90) days of the Order. You may receive a full refund for Services associated with a Monthly Payment Schedule for plans with a duration greater than one month, if a request is submitted in writing within forty-five (45) days of the Order.
5.7. Term. The term of your contract (“Initial Term”) will be indicated in your Order. This Terms of Service will remain in effect until either party cancels as set forth herein.
5.8. Renewal. After the Initial Term, your Order will be automatically renewed for a period of time equal to the Initial Term (each period a “Term”, including the Initial Term) unless you indicate your intent to cancel at least 30 days before the then current Term is set to expire either through your Hyros account or by email support@hyros.com. Hyros may, in its sole discretion, amend pricing or Services offered at the beginning of a new Term.
5.9. Cancellation Fee. If you cancel your subscription before the end of your current Term, a cancellation fee equal to all amounts still owed under your Payment Schedule will be incurred.
5.10. Chargebacks. Any chargeback (i.e. the dispute of a charge with a credit card service provider) will result in an automatic disqualification from any refund. Chargebacks will be reversed and declined.
5.11. Late Cancellation. Charges may be refunded for late cancellation so long as the request is made in writing within three (3) days of the charge that is to be refunded.
6.1. Customer is solely responsible for (i) the configuration of Customer’s Services account, (ii) the operation, performance, and security of Customer’s equipment, networks and other computing resources used to connect to the Services, (iii) ensuring all users exit or log off from the Services at the end of each session, (iv) maintaining the confidentiality of Customer’s accounts, user id’s, and passwords used in conjunction with the Services, and (v) all uses of the Services by Customer and its users. Company reserves the right to suspend the Services or terminate its agreement with Customer if Customer misuses, in Company’s sole determination, or otherwise shares login information among users. Customer will notify the Company immediately of any unauthorized use of its account or any other breach of security. Company will not be liable for any loss that Customer may incur as a result of a third party using its password or account, and Customer may be held liable for any such losses incurred by Company and/or another party. Company reserves the right to review Customer’s account to confirm compliance with applicable Use Levels indicated in the associated Order, and to terminate or suspend Customer’s access for overuse and/or misuse. Customer agrees to pay for any overage in excess of permitted Use Levels.
6.2. You understand and agree not to provide false information about yourself, to impersonate another individual or provide misleading or false user information through your use of the Website or Services.
7.1. You affirm, represent, and warrant that, through your use of the Services, you do not operate any Customer Sites relating to the following:
You also represent and warrant the content contained or distributed by your Customer Sites does not violate the intellectual property rights of any third parties. Company reserves the right to make the final decision regarding what is appropriate.
7.2. The Services are for professional/business use only, and may not be used for any other purpose.
7.3. You understand and agree to not place an unreasonable burden on the server hosting the Website or the Services, and to not interfere with the running of the Website or Services, and to not attempt unauthorized access to any portion of the Website. Whether a burden is unreasonable is entirely at the discretion of the Company.
7.4. You agree not to use bots, click-farms, fake click-throughs, or any other automated or manual techniques to fake, simulate or otherwise generate user activity on the Websites, the Service or Customer Sites with the intention of creating exaggerated or misleading user activity.
7.5. Except to the extent permitted by applicable law, Customer agrees, on behalf of itself and its users, not to (i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Websites, Services, and/or Company’s technology; (ii) knowingly or negligently access or use the Websites or Services in a manner that abuses or disrupts the Company’s networks, security systems, user accounts, or Services of Company or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means, (iii) market, offer to sell, and/or resell the Services to any unauthorized third party; (iv) use the Services in violation of Company policies, applicable laws, ordinances or regulations; (v) use the Websites or Services directly or indirectly for competitive benchmarking or other competitive analysis if Customer is a direct competitor of the applicable Service; or (vi) make any representations with respect to Company or these Terms of Service (including, without limitation, that Company is a warrantor or co-seller of any of Customer’s products and/or services). Company shall have sole and exclusive discretion to determine the applicability of the restrictions set forth above and any violations thereof.
7.6. Company further reserves the right to suspend or terminate your use of the Websites and Services without prior notice for a violation of any of the provisions in this section.
8.1. Customer Data. Please read our Privacy Policy available at: https://hyros.com/privacy.html to carefully understand how Company collects, uses and discloses Customer Data. The Privacy Policy is hereby incorporated by reference into these Terms of Service.
8.2. Customer End-User Data. Company processes Customer End-User Data provided by Customers and processed on Customer’s behalf and under Customer’s instruction in accordance with our Data Processing Addendum, which is available in our Trust Center and is hereby incorporated by reference into these Terms of Service.
8.3. Anonymized or Aggregated Data. Customer acknowledges that Company may collect, retain, use, or disclose, including via sale to unaffiliated third parties, information that does not incorporate Customer Data or Personal Information, or otherwise identify Customer or its Users.
The Website and Services may link you to other sites on the Internet. These other sites are not under the control of Company, and you acknowledge that Company is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of the site by or any association with its operators.
In connection with the performance, access, and use of the Services under these Terms of Service, Company and Customer agrees to comply with all applicable laws, rules and regulations including, but not limited to, export and import, data protection, and privacy laws and regulations. Specifically, Customer shall provide the relevant persons and/or participants with all information or notices Customer is required by applicable privacy and data protection laws to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required. Notwithstanding any other provision in these Terms of Service, Company shall have the right to immediately terminate its agreement with Customer for noncompliance with applicable laws.
ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE WEBSITE AND SERVICES (THE “CONTENT”) ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE. THE CONTENT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT. COMPANY AND ITS AGENTS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE WEBSITE OR SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE WEBSITE AND SERVICES IS SOLELY AT YOUR RISK. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE WEBSITE OR SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, COMPANY’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Any provision herein to the contrary notwithstanding, the maximum liability of Company to any person, firm or corporation whatsoever arising out of or in the connection with the Website or any Services delivered to you hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to Company by you for the Services whose license, use, or other employment gives rise to the liability. The parties acknowledge that the limitations set forth in this section are integral to the amount of consideration levied in connection with the Website, the Services, and any services rendered hereunder and that, were Company to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
Upon a request by Company, you agree to defend, indemnify, and hold Company and its other affiliated companies harmless, and their employees, contractors, officers, and directors from all liabilities, claims, and expenses, including attorney’s fees, that arise from your misuse of the Website or Services
14.1. Services Trial. Company may make the Services available to Customer on a trial basis or offer promotional versions of the Services for a limited period of time (“Trial Period”), as specified on the applicable Order. The Trial Period shall terminate (i) at the end of the stated Trial Period, or (ii) if no such date is specified, thirty (30) days from the date of Customer’s initial access to the Services. Following expiration of the Trial Period, the Services may automatically continue unless canceled by Customer, and Customer is responsible for payment of the applicable Fees set forth in the Order. During the Trial Period, Company provides the Services “AS IS” and without warranty or indemnity, to the extent permitted by law, and all other terms of these Terms of Service otherwise apply. Company reserves the right to modify or discontinue any trials or promotions at any time without notice.
14.2. Copyright. In the event Customer believes that the Services have been used in a manner that constitutes copyright infringement, Customer shall notify Company at support@hyros.com, and provide all of the following information, as required by the Digital Millennium Copyright Act ("DMCA"): (i) a statement that Customer has identified content in the Services that infringes a copyright of a third party for whom Customer is authorized to act; (ii) a description of the copyrighted work Customer claims has been infringed; (iii) a specific description of where the allegedly infringing material is located in the Services, including a URL or exact description of the content's location; (iv) Customer’s name, address, telephone number, and e-mail address; (v) a statement that Customer has 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); (vi) a statement that, under penalty of perjury, the information in Customer’s notice is accurate and that Customer is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; and (vii) Customer’s electronic or scanned physical signature. Company reserves the right to delete or disable allegedly infringing content, to terminate the accounts of users who are repeat infringers, and to forward the information in the copyright-infringement notice to the user who allegedly provided the infringing content.
14.3. Cookies. By using the Services or websites, Customer agrees to the use of cookies which Company uses to facilitate use of the Services and the Website. Company does not store passwords or any other Customer personal information in the cookies, and Company does not sell, trade or rent any Customer personal information to unaffiliated third parties. More information about Company’s use of cookies is contained in the Cookie Policy available at: https://www.hyros.com/cookies.html
14.4. Suspension of Service. Company may temporarily or permanently suspend the Services if Company determines, in its sole discretion, that continued provision would compromise the security of the Services due to, without limitation, hacking attempts, denial of service attacks, mail bombs or other malicious activities, and Company will take action to promptly resolve any such security issues. Company agrees to notify Customer of any such suspension and subsequent reactivation of the Services.
14.5. Assignment. Neither party may assign its rights or delegate its duties under these Terms of Service either in whole or in part without the other party’s prior written consent, which shall not be unreasonably withheld, except that either party may assign an Order as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment without such consent shall be void. These Terms of Service will bind and inure to the benefit of each party’s successors or assigns.
14.6. Notices. All legal notices required under these Terms of Service shall be in writing and delivered in person or by certified or registered express mail to the address last designated on the account for Customer, and the Company contracting entity as specified below, or such other address as either party may specify by notice to the other party as provided herein. Notice shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier or email, upon confirmation of receipt; or (iii)five (5) days after deposit in the mail. Non-legal notices may be provided to the email address specified on the applicable Order and shall be deemed effective on the next business day following the date and time stamp on the sender’s email. Company may also provide Customer with notice postings on the Company Website.
14.7. Entire Agreement; Order of Precedence. These Terms of Service plus any associated Order set forth the entire agreement and understanding of the parties relating to the Services and supersede all prior and contemporaneous oral and written agreements. For any conflict between an executed Order and these Terms of Service, the Order shall govern, but only for the specific Services described in the applicable Order. Nothing contained in any document submitted by Customer shall in any way add to or otherwise modify these Terms of Service or Company’s program terms.
14.8. General Terms. Captions and headings are used herein for convenience only, are not a part of these Terms of Service, and shall not be used in interpreting or construing these Terms of Service. The parties are independent contractors and nothing in these Terms of Service creates a partnership, franchise, joint venture, agency, fiduciary or employment relationship between or among the parties. No person or entity not a party to these Terms of Service will be deemed to be a third-party beneficiary of these Terms of Service or any provision hereof. Company authorized resellers and distributors do not have the right to make modifications to these Terms of Service or to make any additional representations, commitments, or warranties binding on Company. No waiver or amendment of any term or condition of these Terms of Service shall be valid or binding on any party unless agreed to in writing by Company or Customer. Company failure to enforce any term of these Terms of Service will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative. These Terms of Service may be agreed to online, or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay, interruption or other failure to perform under these Terms of Service due to force majeure events and acts beyond a party’s reasonable control, but only for so long as such conditions persist. Force majeure events may include: natural disasters; wars; terrorist activities; activities of local exchange carriers, telephone carriers, wireless carriers, and Internet service providers; labor disputes; and acts of government.
If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Texas. You hereby consent to binding arbitration in the State of Texas to resolve any disputes arising under these Terms of Service.
The parties agree that any dispute or claim in law or equity arising between them regarding the use of the Website, the Services, or these Terms of Service, including any dispute regarding the enforceability or applicability of this arbitration provision, shall be decided by neutral, binding arbitration conducted in Dallas County, Texas. The arbitrator shall be a retired judge, justice, or an attorney with at least ten (10) years of legal experience relating to the subject matter of this Agreement, unless the parties mutually agree otherwise, who shall render an award in accordance with the substantive laws of Dallas County, Texas. In all other respects, the arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association, subject to the parties being allowed limited discovery. Judgment upon the award of the arbitrator(s) may be entered in any court having jurisdiction.
NOTICE: BY USING THE WEBSITE AND SERVICES YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS “ARBITRATION OF DISPUTES” PROVISION DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION YOU MAY BE COMPELLED TO ARBITRATE ANYHOW PURSUANT TO A COURT ORDER. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. IF YOU DO NOT WISH TO AGREE TO ARBITRATION, THEN YOU MAY NOT USE THE WEBSITES OR SERVICES.
ANY LEGAL ACTION OR ARBITRATION ARISING IN CONNECTION WITH THE USE OF THE WEBSITE, THE SERVICES, OR THESE Terms of Service MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
In any dispute, action, proceeding, or arbitration regarding the use of the Website, the Services, or these Terms of Service, including the enforcement of any arbitration provision herein, the party prevailing in such action or proceeding shall be entitled to recover, in addition to any other award of damages or other remedies, its reasonable attorneys’ and experts’ fees, costs and expenses (including, without limitation, expenses for expert witnesses and all reasonable attorneys’ fees, costs and expenses upon appeal).
Our Websites and Services are provided by:
Hyros, Inc
13359 N Highway 183, Ste 406, #2008
Austin, TX 78750
USA
Phone: +1 214 295-2623
support@hyros.com
Hyros Inc. is a corporation registered under the laws of the state of Texas, USA, registration number: 83-4515928
If you wish to contact Hyros for any reason, who may do so using the contact information listed in this section.