Last updated: March 1, 2020
Welcome to HyperGuest, an accommodation distribution platform (the “HyperGuest Platform”).
The HyperGuest Platform is owned and operated by HPG R&D Ltd, Inc., an Israeli corporation (with company ID 516129939, address at 4 Berkovitch St, Tel Aviv, 6423806, phone number +44-20-31292787 and email email@example.com), and its subsidiaries (collectively, the “Company”, “HyperGuest” “we”,“us” and “our”).
Please carefully read the following Terms of Service (the “Terms“). By using, accessing or applying to register to the HyperGuest Platform, the customer (“Customer”) agrees to be bound by these Terms. If the Customer does not agree to these Terms, the Customer may not access or use the HyperGuest Platform in any way.
About the HyperGuest Platform
The HyperGuest Platform is an innovative technology platform, open and highly scalable, that allows any supply-side (hotels) to seamlessly and effectively expose its inventory (rates & availability). At the same time, any demand-side (enablers) can easily and effectively search & book inventory, with no need for a pre-existing relationship. The platform includes an integral payment handling solution that eliminates complex reconciliation processes, as well as a full-blown static data solution allowing hotels to control their property visuals and details throughout
The HyperGuest Platform can also be used with third party platforms (the “Third Party Channels”).
Using the HyperGuest Platform, the Customer can also manage interactions with external third party service providers (the “Third Party Service Providers”).
Each Customer has an “Account” on the HyperGuest Platform with which he or she can manage his account details. Each Account is first and foremost accessible by the Account’s administrator (the “Admin User(s)”) and the Admin User is given access to tools for managing the Account itself. For instance, the Admin User can set up user accounts which the Admin User can assign to his or her team members so that they can manage the Properties using HyperGuest Platform’s Property management tools.
The HyperGuest Platform does not manage the Properties, the Customer does. We and our personnel do not ordinarily visit the Properties. In light of this, the following non-exhaustive list of disclaimers apply, in addition to any other express or implied disclaimers.
Properties and Guests
- We are not responsible for the Properties, their condition, quality, suitability and safety for Guests, the legality of renting them out to Guests, the maintenance of Properties or the provision or replenishment of supplies in Properties – the Customer is. We are also not responsible for thefts, break-ins or vandalism at or to the Properties, or any other conduct or misconduct taking place in the Properties. This is the case even if our GSE’s assisted in booking the reservation.
- We are not responsible for the Customer’s policies regarding Guests’ use of the Property, and the legality of the policies that the Customer establishes – the Customer is.
- We are not responsible for the Customer’s insurance coverage such as for damage to Properties and Guest injuries.
- We are not responsible for the Customer’s cancellation and refund policy for Guests or prospective Guests – the Customer is.
- We are also not responsible for the actions of the Customer’s Guests or prospective Guests, be it with respect to the conduct they engage in in the Properties, their failure to pay or settle amounts due, the reviews they (or anyone else) post, or any other aspect of their dealing with the Customer.
- We are not responsible for any injuries that Guests or other third parties sustain on the Properties.
- We are not a party to any engagements, transactions or dealings between the Customer and its Guests.
Information, content and data
- You hereby instruct HyperGuest to process any and all Guests and others personal data elements that you choose to make available to or through the Services or that you otherwise share with HyperGuest in order to provide you with and improve the Services (hereinafter “Personal Data”). When HyperGuest follows these instructions, it is operating as the Data Processor. You are the Data Controller who determines which Personal Data elements are relevant, and based on that analysis you decide in your sole discretion which Personal Data elements to make available to or through the Service or otherwise share with HyperGuest. In these situations, HyperGuest processes the Personal Data on your behalf.
- You also provide permission to HyperGuest to use Sub Processors of personal data to provide you with and improve the Services.
- We are not responsible for the completeness, accuracy, legality or reliability of the data that originates or is imported from Third Party Channels (including Property listings, reservations, rankings, past guests, communications with guests, etc.).
- We are not responsible for any content that the Customer provides, publishes, transmits, displays or otherwise communicates through the HyperGuest Platform and for the consequences associated with doing so – the Customer is.
- Although we use advanced methods to store, backup and maintain the Customer’s Account data we do so as a merely curtesy to the Customer and the Customer remains exclusively responsible for maintaining his or her backups.
Third parties’ services
- We are not responsible for Third Party Service Providers. We do not screen, endorse or recommend Third Party Service Providers and cannot confirm their professional qualifications, skills, licenses or permits needed for their line of work, or that they are properly covered by insurance.
- We are not responsible for any problems in the Customer’s account on a Third Party Channel, including response rate or the account being locked out. Payments to Third Party Channels are at the Customer’s cost and responsibility (except in case of Channel Managers, as explained in the next section).
- Our payment process service is provided by a third party, and it is offered to the Customer on an “as-is” and “as-available” basis. We are not responsible for any error or malfunction in such payment process service. You are exclusively responsible for all tax filings and withholdings in connection with the collection of fees made through such payment process service. We may deduct or withhold any amounts collected through the payment process service, to the extent we determine it to be necessary.
- Any and all communications, transactions payments and engagements with Third Party Service Providers, are exclusively between the Customer and the relevant Third Party Service Provider, not us. We are not liable for the foregoing matters and the consequences resulting from them.
Regulation and taxes
- We are not responsible for the Customer’s compliance, or non-compliance, with any and all requirements under any law or regulation regarding Customer’s use of the HyperGuest Platform, the Properties, renting the Properties out, or accommodating Guests – the Customer is.
- HyperGuest requires, and you hereby warrant and represent, that any Personal Data you submit to HyperGuest to or through the Services, or during or in connection with your use of the Services, has not been collected, stored, and transferred to HyperGuest in violation of any law, regulation, or contractual obligation applicable to you. You shall have sole responsibility for the accuracy, quality, and legality of the data and the means by which you acquired the Personal Data.
- You shall have sole responsibility for compliance with various data protections regulations including GDPR. You should satisfy the data subjects rights such as modification, transfer, deletion, consent for marketing activities etc. regarding the personal data by using the tools HyperGuest platform provides. HyperGuest should not be liable for any failure of the clients to comply.
- Clients shall conduct their marketing activities with compliance with all laws and regulations on HyperGuest platform and outside. HyperGuest provides the tools to collect online consent from relevant data subjects for marketing activities. HyperGuest should not be liable for any failure of the clients to comply.
- You shall have sole responsibility for compliance with all relevant regulations governing the use and protection of any personal data stored by you outside the Platform. HyperGuest should not be liable for any failure of the clients to comply.
- Our fees do not include VAT or sales tax, or any other tax which may be applicable. If these taxes apply, Customer will be charged accordingly and Customer consents to those charges.
- The Customer is solely responsible for completing and filing all tax forms, declarations and submissions to the tax authorities as required by the tax laws applicable to the Customer and for paying all applicable taxes in connection with the Customer’s Properties and the income the Customer generates from them.
- Registration and creation of a HyperGuest Account
Applying to register
In order to use the HyperGuest Platform, the Customer must apply for registration. The Customer must provide true, accurate, current and complete information in the course of the Customer’s application to register to the HyperGuest Platform, and the Customer is fully accountable for any outcome that may result from the Customer’s failure to do so.
As we process the Customer’s application, and thereafter, following the Customer’s admission to the HyperGuest Platform (if admitted), we may request additional information, documentation and materials from the Customer, as we, in our discretion, deem necessary.
Once we complete processing, evaluating and considering the Customer’s application, we will determine, in our sole discretion, whether to accept or decline the Customer’s application to register to the HyperGuest Platform. We are not obligated to admit the Customer to the HyperGuest Platform. The Customer will have no plea, claim or demand against HyperGuest in connection with any decision we may or may not make regarding the Customer’s application or admission. Our decision is final and non-contestable. If we decline the Customer’s application to register to the HyperGuest Platform, these Terms will immediately terminate.
If we believe that the registration information that the Customer provided is false or not correct, current or complete, or if we believe that the Customer has violated these Terms, we reserve the right to suspend or terminate the Customer’s application to register to the HyperGuest Platform. However, we have no obligation to verify the accuracy, correctness, or completeness of any information that the Customer or others have provided nor are we liable for losses or any damage resulting therefrom. The customer may not hold payments that HyperGuest is entitled to due to such action by HyperGuest.
Integration with Third Party Channels
If the Customer wishes to connect his or her Account to a Third Party Channel (each such interconnection is named an “Integration”), then the HyperGuest Platform may need to change the email or other user credential for the Customer to use with each respective Third Party Channel. The HyperGuest Platform will then maintain the Integration with the Customer’s account on the Third Party Channel. To do this, the Customer may need to change the email address or other user credential that he or she has listed on the Third Party Channel. Also, in order for the HyperGuest Platform to operate properly, the Customer must keep his or her account on the Third Party Channel connected to the Customer’s Account on the HyperGuest Platform.
The Customer will have no plea, claim or demand against HyperGuest for any loss of data, reservations or revenue due to Customer’s failure to keep his or her account on the Third Party Channel connected to the Customer’s Account on the HyperGuest Platform. The Customer is exclusively responsible for all consequences of such failure.
Once connected to an Integration, the HyperGuest Platform automatically imports the Properties and Guest related data in the Customer’s accounts on the respective Third Party Channel, such as listings, reservations, past Guests, etc. HyperGuest allows you to manage future reservations (reservations that were already booked where the check in is in the future) on the HyperGuest Platform right away. These reservations will be charged regularly.
Use of the HyperGuest Platform and the Add-On Services is subject to the fees at the rates, packages, schemes, amounts, overage charges and payment cycles separately provided to the Customer.
Fees that are contingent on Property booking fees are determined according to the Property booking fees reported to HyperGuest by the Third Party Channel or by the Customer. The Customer is obligated to report accurate, correct and true information.
We may, from time to time, change the applicable fees, rates, packages, schemes, amounts, overage charges and payment cycles. If we do so, we will put the Customer on notice of such changes, but we will not radically change these matters in a way that adversely affects the Customer, without obtaining his or her consent.
Fees are chargeable in US Dollars, but we reserve the right to offer that fees be charged in other currencies. If we do so and the Customer opts to be charged in another currency, the Customer may be subject to additional exchange fees or commissions collected by the Customer’s payment method provider.
Exchange rates are determined by a reputable third party provider and converted with the exchange rate applicable at the time the given reservation is made and is rounded up. The Customer will have no plea, claim or demand with respect to the exchange rate used or currency conversion performed.
Sales tax and other taxes may apply to the fees, in which case they will be added to the amount due and charged. We will issue and provide the Customer online receipts for the applicable fees we charge.
The Customer must pay the applicable fees using one of the payment methods we support, such as credit card. By providing the Customer’s payment information, the Customer gives his or her consent to being billed for the applicable fees, in addition to any applicable surcharges or commissions that may apply under the Customer’s agreement with his or her payment method provider. The Customer must keep the billing information that he or she provided to HyperGuest current, complete, and accurate, and notify HyperGuest promptly in case of any change in the billing information. Payments are collected by our payment and billing service providers, not HyperGuest. We are therefore not responsible for their mishandling of the Customer’s payment information or any related security breaches.
Except if and as expressly agreed otherwise, the Customer is not entitled to any refunds or reimbursements in connection with the HyperGuest Platform, the Add-On Services or the applicable fees. In any event, the Customer is not entitled to a refund for partial use of the HyperGuest Platform, any unused portion of the HyperGuest Platform, unused features of the HyperGuest Platform, or for any time period during which the Customer did not actually use or take advantage of the HyperGuest Platform.
Customer may not set off or deduct amounts from fees due to HyperGuest.
Fees that we are unable to charge through the payment method the Customer provided, as well as payable fees for which the Customer has not provided a payment method, are deemed overdue. Failure to settle any overdue fee within seven (7) calendar days of its original due date constitutes a breach of these Terms, entitling HyperGuest to suspend the Customer’s Account. Failure to settle any overdue fees within fourteen (14) calendar days of its original due date constitutes a material breach of these Terms.
Without derogating from any other rights and remedies available to HyperGuest under applicable law, overdue fees may accrue interest at the rate of three-quarters of one percent (0.75%) per month or part thereof, cumulative monthly on the linked capital from the due date until the date of actual payment. The Customer will reimburse HyperGuest for all legal costs, chargebacks, chargeback fees, credit card commissions, and attorney fees we incur in the course of collecting overdue or disputed fees. Customer shall not file a credit card charge dispute on amounts charged by HyperGuest, and shall instead raise all such disputes directly with HyperGuest.
We will provide the Customer technical support for questions, problems and inquiries regarding the HyperGuest Platform and GCS, during our regular business days and hours, and pursuant to the support scheme, hours and channels separately conveyed to the Customer.
We will make genuine efforts to respond to the Customer’s technical questions, problems and inquiries quickly. However, we –
- May decline to provide such support for matters that we deem, at our sole discretion, to require unreasonable time, effort, costs or expenses;
- Make no warranties to any specific response-time or to the successful or satisfactory resolution of the question, problem or inquiry.
Note that we may also refer the Customer to the HyperGuest Platform’s self-help pages which provide explanatory sections about various aspects of the HyperGuest Platform.
The HyperGuest Platform also offers API for the Customer to develop software and other services utilizing the HyperGuest Platform’s features. The provisions in these Terms of Service apply to the APIs as they do to the HyperGuest Platform.
- Changes; Temporary Suspension
We will make genuine efforts to notify the Customer ahead of time on any changes or temporary suspension, but cannot guarantee that we will do so. We may, at any time and without prior notice, change the layout, design, scope, features or availability of the HyperGuest Platform and Add-On Services. Such changes, by their nature, may cause inconvenience or even malfunctions. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT WE DO NOT ASSUME ANY RESPONSIBILITY WITH RESPECT TO, OR IN CONNECTION WITH THE INTRODUCTION OF SUCH CHANGES OR FROM ANY MALFUNCTIONS OR FAILURES THAT MAY RESULT THEREFROM.
We may suspend the operation of the HyperGuest Platform or any Add-On Service, in whole, or in part, for all users, or for certain users, for periodic maintenance or similar purposes.
We may, from time to time, issue and notify the Customer of guidelines, rules and instructions addressing, among other things, technical, business, marketing and operational matters concerning the HyperGuest Platform and its use. The Customer shall follow these guidelines and instructions.
When using the HyperGuest Platform, the Customer must refrain from –
- Breaching these Terms or any other applicable rules and instructions that we may convey with respect to the use of the HyperGuest Platform;
- Engaging in any activity that constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law or regulations, including laws governing privacy, defamation, spam and intellectual property;
- Interfering with, burdening or disrupting the functionality of the HyperGuest Platform;
- Breaching the security of the HyperGuest Platform or identifying any security vulnerabilities in it;
- Circumventing or manipulating the operation or functionality of the HyperGuest Platform, or attempting to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the HyperGuest Platform;
- Using or launching any automated system, including robots, crawlers and similar applications to collect and compile content from the HyperGuest Platform;
- Displaying the HyperGuest Platform or any part thereof in an exposed or concealed frame, or linking to elements or portions of the HyperGuest Platform, independently from the manner on which they originally appear or are made available through the HyperGuest Platform;
- Impersonating any person or entity, or making any false statement pertaining to the Customer’s identity, medical condition, agency or affiliation with any person or entity;
- Collecting, harvesting, obtaining or processing personal information of or about other users of the HyperGuest Platform; and/or
- Using the HyperGuest Platform for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies HyperGuest’s endorsement, partnership or otherwise misleads others as to the Customer’s affiliation with HyperGuest.
Without derogating from any of the above the Customer may not post or submit any information, or use the HyperGuest Platform in conjunction with any materials, that:
- May infringe or violate the rights of others, including a person’s right to privacy, or otherwise cause harm to anyone;
- May depict or identify minors, their personal details, their address or ways to contact them;
- May include software viruses, spyware or any other malicious applications;
- May, through posting, publication, dissemination, or making available to the public, be prohibited by any applicable law, including court orders;
- May be threatening, abusive, harassing, defamatory, libelous, vulgar, violent, obscene or racially, ethnically or otherwise objectionable; and/or
- May include unsolicited commercial communications (‘spam’), chain letters, or pyramid schemes.
If the Customer finds any content on the HyperGuest Platform that violates these Terms, please contact HyperGuest at: legal@HyperGuest.com. We will review every request and take action as necessary.
The Customer may not access or use the HyperGuest Platform in order to develop or create a similar or competitive service.
WE MAY EMPLOY TECHNOLOGICAL MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE HYPERGUEST PLATFORM. WE MAY SUSPEND THE CUSTOMER’S ACCOUNT, OR BLOCK THE CUSTOMER’S ACCESS TO, AND USE OF, THE HYPERGUEST PLATFORM, WITHOUT PRIOR NOTICE, IF WE, IN OUR SOLE DISCRETION, BELIEVE THAT THE CUSTOMER HAVE MISUSED THE HYPERGUEST PLATFORM.
Requests to remove content due to alleged copyright infringement, must be made in accordance with our copyright policy. After receiving a request to remove or re-post content on the HyperGuest Platform, we will review the request and take action as necessary.
The HyperGuest Platform is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The HyperGuest Platform is made available for use and access, not sold or licensed.
All rights, title and interest in and to the HyperGuest Platform, including without limitation, patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights and any goodwill associated therewith (but excluding any content the Customer submits to the HyperGuest Platform and any content imported from third party sources), are the exclusive property of the Company and its licensors. This includes the Website’s design, graphics, computer code, domain name and “look and feel”.
The Customer may not, either by itself or by a third party on the Customer’s behalf, copy, distribute, display or perform publicly, sublicense, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, make commercial use of, process, compile, translate, sell, lend, rent, reverse engineer, combine with other software, modify or create derivative works of the HyperGuest Platform or any part thereof, in any way or by any means.
The Customer may not use HyperGuest’s name, mark(s), logo(s) or domain name, or any other name, mark(s), logo(s) or domain name that is similar thereto. The Customer must refrain from any action or omission that may dilute, or damage our goodwill.
By the Customer
The Customer may request to terminate these Terms and the Customer’s Account by clicking the “Cancel Account” button available on the HyperGuest Platform, or alternatively by having the Admin send an email requesting termination through the following link: support@HyperGuest.com. Termination will enter into effect once we complete processing the Customer’s request. Termination will not relieve the Customer from remitting all payments due and will not entitle the Customer to any refund.
By the Company
In addition to any remedies that may be available to HyperGuest under any applicable law, we may promptly temporarily or permanently deny, limit, suspend, or terminate the Customer’s Account, prohibit the Customer from accessing the HyperGuest Platform, and take technical and legal measures to keep the Customer off the HyperGuest Platform, if we, in our reasonable discretion, determine that –
- The Customer abused the Customer’s rights to use the HyperGuest Platform; or,
- The Customer materially breached these Terms; or,
- The Customer performed any act or omission which is harmful or likely to be harmful to the Company, or any other third party, including other users of the HyperGuest Platform.
In addition to the above, we may also terminate these Terms and the Customer’s Account on the HyperGuest Platform, upon advance notice of 14 days to the Customer (which we may provide by an email message to the Customer’s email address we have on file).
We will not be liable to the Customer for terminating the Customer’s Account or access to the HyperGuest Platform in accordance with the provisions of these Terms.
Upon termination of the Customer’s account –
- The Customer must immediately settle all due fees and payments incurred up through the effective date of termination. The Customer will fully pay all fees applicable to all Guest reservations that were confirmed after the Customer’s registration date to the HyperGuest Platform and we may promptly charge the Customer for those fees and payments using the payment method the Customer provided.
- We may permanently delete the Customer’s Account on the HyperGuest Platform, including all information and data it contains. Subject to the Customer’s payment of all due fees and payments incurred up through the effective date of termination, we will export and make available to the Customer a copy of the information and data that the Customer’s Account contains, as of the effective date of termination.
Provisions in these Terms that by their nature are intended to survive termination of these Terms, will so survive, including the following sections: Important disclaimers, Fees, Privacy, Copyright policy Intellectual property, Termination, Disclaimer of Warranty, Limitation of liability, Indemnification, Governing law and dispute resolution, and General.
Amendments to the Terms
We may revise these Terms, in whole, or in part, at any time. by continuing to use HyperGuest Platform and HyperGuest services you agree that you have read our updated Terms of Service and that your use is subject to it.
In case of legal requirement or necessity, we may also introduce immediate changes to these Terms. The latest version of the Terms and its effective date will always be accessible on the Service.
Be advised, however, that issuance of guidelines, rules and instructions regarding the HyperGuest Platform (as set out in the section titled “Acceptable use” above), as well as changes to the applicable fees (as set out in the section titled “Fees” above), are not subject to the rules on revisions to the Terms which are described in this section. Changes on these matters will be made with notice to you, and your continued use of the HyperGuest Platform following such changes constitutes your acceptance of those changes.
DISCLAIMER OF WARRANTY
THE HYPERGUEST PLATFORM AND ADD-ON SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. WE AND OUR AFFILIATES, AND OUR AND OUR AFFILIATES’ EMPLOYEES, DIRECTORS, OFFICERS, SUBCONTRACTORS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, “PERSONNEL”) DISCLAIM ALL REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE HYPERGUEST PLATFORM AND ADD-ON SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY, ACCURACY, ENHANCED GOODWILL OR EXPECTED BENEFITS.
NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE HYPERGUEST PLATFORM AND ADD-ON SERVICES, WHETHER OR NOT MADE BY ANY OF OUR PERSONNEL, WHICH IS NOT EXPRESSLY CONTAINED IN THESE TERMS, SHALL BE DEEMED TO BE A WARRANTY BY US, OUR AFFILIATES, OR THE PERSONNEL FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF OURS, OUR AFFILIATES, OR THE PERSONNEL WHATSOEVER.
THE DISCLAIMERS SET OUT UNDER THE SECTION TITLED “IMPORTANT DISCLAIMERS” ABOVE ARE INCORPORATED BY REFERENCE INTO THIS SECTION AS WELL.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, AND THE PERSONNEL, SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY, INCIDENTAL OR CONSEQUENTIAL DAMAGE, LOSS OF PROFIT, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITIES, AND ANY INTANGIBLE OR ECONOMIC LOSS, WHETHER BASED ON TORT, NEGLIGENCE, OR ANY OTHER THEORY OF LIABILTIY, WHERE SUCH ARISES FROM OR IN CONNECTION WITH: (A) THE HYPERGUEST PLATFORM AND ADD-ON SERVICES, (B) THE USE OF OR THE INABILITY TO USE THE HYPERGUEST PLATFORM AND ADD-ON SERVICES, (C) THE CUSTOMER’S ACCOUNT, (D) THIRD PARTY CHANNELS OR THIRD PARTY SERVICE PROVIDERS, (E) GUESTS’ CONDUCT OR MISCONDUCT, (F) USERS’ USE OF THE HYPERGUEST PLATFORM AND ADD-ON SERVICES, (G) THE CUSTOMER’S RELIANCE UPON OR THE EXPECTED OUTCOME OR BENEFITS FROM THE HYPERGUEST PLATFORM AND ADD-ON SERVICES, (H) ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE HYPERGUEST PLATFORM AND ADD-ON SERVICES, (I) ANY FAULT, OR ERROR MADE BY OUR PERSONNEL, (J) DENIAL OR CANCELATION OF THE CUSTOMER’S ACCOUNT, OR (K) FROM RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF DATA ON THE HYPERGUEST PLATFORM AND ADD-ON SERVICES.
IN ADDITION, WE AND OUR PERSONNEL SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY DAMAGE ARISING FROM EVENTUALITIES DISCLAIMED UNDER THE SECTION TITLED “IMPORTANT DISCLAIMERS” ABOVE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL, MAXIMUM AND AGGREGATE LIABILITY TO THE CUSTOMER FOR ANY LIABILITY UNDER THESE TERMS SHALL BE LIMITED TO THE AMOUNTS THE CUSTOMER PAID HYPERGUEST (IF ANY) IN THE THREE MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE LIABILITY. THIS AMOUNT LIMITATION SHALL NOT APPLY IN THE EVENT THAT THE LIABILITY WAS CAUSED BY OUR WILLFUL MISCONDUCT.
To the maximum extent permitted by law, the Customer will indemnify, defend and hold harmless, HyperGuest, its affiliates, their users and partners, and the Personnel at the Customer’s own expense and immediately after receiving a written notice thereof, from and against any damages, losses, costs and expenses, including attorney’s fees and legal expenses, resulting from any plea, claim, allegation or demand, arising from, or in connection with the Customer’s use of the HyperGuest Platform or Add-On Services, the Customer’s breach of the Terms, the Customer’s violation or infringement of any other person’s rights, the Customer’s communications through the HyperGuest Platform or Add-on Services, or the eventualities disclaimed in the section titled “Important disclaimers” above.
Governing law and dispute resolution
Regardless of the Customer’s place of residence or where the Customer access or use the HyperGuest Platform or Add-on Services from, these Terms and the Customer’s use of the HyperGuest Platform or add-on Services will be governed by and construed solely in accordance with the laws of the State of New York, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than the State of New York.
Any and all disputes, claims or controversies between the Customer or the Customer’s Users and the Company regarding these Terms or the use of the HyperGuest Platform or Add-On Services, which are not amicably resolved, shall be settled through binding arbitration (rather than in court) by telephone, online or based solely upon written submissions without in-person appearance, administered by the American Arbitration Association (AAA), under its Commercial Arbitration Rules (which are available at www.adr.org). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. However, the Customer may lodge claims in small claims court if the Customer’s claim qualifies.
The Federal Arbitration Act and federal arbitration law apply to these Terms.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would.
Payment of filing, administration and arbitrator fees will be governed by the AAA’s Commercial Arbitration Rules. These fees will be shared equally by the Customer and us, unless the arbitrator: (i) determines that the claims are frivolous, in which case the claimant shall bear all such fees arising from the frivolous claim; or (ii) determines that the fees should be allocated differently.
The Customer and the Company hereby acknowledge, agree and covenant that any such dispute shall only be adjudicated on an individual basis, and not in class, consolidated or representative proceedings. Should a dispute be adjudicated in court, rather than arbitration, for any reason whatsoever, the Customer and the Company each expressly and knowingly waive any right to a jury trial.
Notwithstanding anything to the contrary in this section, the Company may lodge a claim against the Customer: (a) pursuant to the indemnification clause above, in any court adjudicating a third party claim against us; and (b) in connection with the infringement (or alleged infringement) of any Company intellectual property right, in any court of competent jurisdiction having personal jurisdiction over the Customer.
Whenever used in these Terms, the term “Including” or “Such as”, whether capitalized or not, means without limitation to the preceding phrase. All examples and e.g. notations are illustrative, not exhaustive.
These Terms constitute the entire agreement between the Customer and HyperGuest concerning the subject matter herein, and supersedes all prior and contemporaneous negotiations and oral representations, agreements and statements.
These Terms may only be modified by written amendment duly executed by us. No waiver, concession, extension, representation, alteration, addition or derogation from These Terms by us, or pursuant to these Terms, will be effective unless consented to explicitly and executed in writing by our authorized representative.
Failure on our part to demand performance of any provision in these Terms shall not constitute a waiver of any of our rights under these Terms.
The Customer may not assign, delegate or transfer the Customer’s rights and obligations under these Terms without our prior written consent. Any attempted or actual assignment by the Customer, without our prior consent, shall be null and void. We may assign and delegate these Terms in their entirety, including all right, duties, liabilities and obligations therein, upon notice to the Customer, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of its equity or assets relating to these Terms. By virtue of such assignment and delegation, the assignee assumes our stead, including all right, duties, liabilities and obligations and we are irrevocably released from the same.
If any provision of these Terms is held to be illegal, invalid, or unenforceable by a competent court or arbitration tribunal, then the provision shall be performed and enforced to the maximum extent permissible by law to reflect as closely as possible, the original intention of that provision, and the remaining provisions of these Terms shall continue to remain in full force and effect.
- Contact us
The Customer may contact HyperGuest with any questions or comments, at: firstname.lastname@example.org
Our website address is: www.hyperguest.com