This service ("Service") and the software enabling the use thereof (the "Software"), are provided by Hypernix Technologies, Ltd. and/or its affiliates and subsidiaries (collectively "Hypernix" or "we") to you ("you" or "your") and others who use the Service and Software (collectively "User" or "Users"), subject to the terms of these Terms and Conditions of Use and all modifications thereto ("Terms and Conditions" or "Agreement"), and the rules that may be published from time to time by Hypernix.
The Service currently is provided as a free service to any user thirteen (13) years of age or older who agrees to abide by these Terms and Conditions. Users who violate the terms of these Terms and Conditions may be permanently or temporarily banned from using the Service, at Hypernix's sole discretion. In consideration of your use of the Service, you agree to provide true, accurate, current and complete information about yourself as required. If any information provided by you is untrue, inaccurate, not current or incomplete, we have the right to permanently or temporarily terminate your membership and refuse any and all current or future use of the Service. You agree not to transfer or resell the Service, in whole or in part, or allow unauthorized access to the Service, to any third party.
Clicking on the "I Accept" button at the bottom of this Agreement means that you are at least thirteen (13) years of age and accept and agree to be bound by the Terms and Conditions and any modifications thereto. From time to time we may notify Users of updates or new versions of the Software or Service, in whole or part. Your download of the updated or new versions of the Software and/or subsequent use of the Service is subject to these Terms and Conditions. If you do not agree to abide by these terms, you may not use the Service.
(1) General Terms and Conditions: By using the Software and Service, including any content and software contained therein, you agree that use of the Software and Service is entirely at your own risk. The Software and Service are provided by Hypernix to enhance your personal experience while "surfing" the Internet. You agree to use the Software and Service solely for your personal, non-commercial use as an online information exchange management and communication tool. Hypernix does not guarantee reliability, accuracy, or completeness of the Software or Service.
While Hypernix strives to protect its Users' personal information and privacy, we cannot guarantee the security of any information you disclose online, and you do so at your own risk. You acknowledge that you are aware of security and privacy limitations including without limitation: (i) the limitation of security, privacy and authentication measures and features in the Service; and (ii) that data and information on the Service may be subject to eavesdropping, sniffing, spoofing, forgery, spamming, "imposturing", tampering, breaking passwords, harassment, fraud, electronic trespassing, hacking, nuking, and system contamination, including without limitation, viruses, worms, and Trojan horses, causing unauthorized, damaging or harmful access and/or retrieval of information or data on your computer or other security or privacy hazards or may not reach its destination or reach an erroneous address or recipient. You further acknowledge that by using the Software or the Service, or the Internet in general, you may be subject to various risks, including without limitation objectionable material and contaminated files. If you do not wish to be subjected to these risks, you are advised not to use the Software or the Service.
(2) Software Usage: The Software that will enable you to use the Service is being licensed to you by Hypernix on an "AS IS" basis, for your private personal use only. Except as expressly permitted hereunder, you agree not to extract information from the Hypernix "Nicks" lists, directories, databases, or any other portion of the Service or the Hypernix Web Site, or to reverse engineer, decompile, disassemble, alter, duplicate, make copies of, distribute or provide others with the Software, the Hypernix communications protocols or any information available on, derived or extracted from the Hypernix directories and databases, other portions of the Service, or the Hypernix Web Site, or any part of the foregoing.
By accepting the terms of this Agreement you agree that Hypernix is permitted, at its sole discretion, to limit, deny, or create different priorities to different users, or cancel some or all of the functionality of the Software or the Service at any time, without prior notice. As part of this Service, the Software enables limited access to the Hypernix servers and Hypernix Web Site presently located at http://www.hypernix.com or http://www.getgooey.com (the "Hypernix Web Site") (and related web sites), and to various directories and listings, message boards, tools, information and databases, and member data use related to the foregoing, all subject to the terms of this Agreement.
The Software may have been downloaded from the Hypernix Web Site or another authorized web site, provided to you on a free CD-ROM, or otherwise bundled with other equipment, products or services. You acknowledge that no payment was made by you for the Software regardless of the method of delivery, and if payments were made, they are made for the equipment, products or services and not for the Software. Always make sure you are using an authorized copy of the Software, downloaded directly from the Hypernix Web Site (or another authorized web site) or otherwise from an authorized CD-ROM. This will enable you to use the latest functions allowing you to enhance the functionality, privacy and security level of your use of the Service.
(3) Disclaimer of Warranties: THE SOFTWARE AND SERVICE ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITATION OF THE FOREGOING, HYPERNIX SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, INTEROPERABILITY, OR CONTENT OF THE SOFTWARE OR SERVICE; AND (ii) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY THE SOFTWARE OR THE SERVICE, INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. HYPERNIX DOES NOT WARRANT OR GUARANTEE THAT ALL SOFTWARE VERSIONS SHALL BE PROVIDED WITH SIMILAR GRADES AND LEVEL OF SERVICE, FEATURES, FUNCTIONALITY AND THE ABILITY TO USE THE SOFTWARE OR THE SERVICE. HYPERNIX DOES NOT WARRANT OR GUARANTEE (1) THAT ANY PROGRAM OR PORTION OF THE SERVICE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; (2) THAT ANY INFORMATION OR OTHER CONTENT PROVIDED BY HYPERNIX OR USERS OF THE SERVICE OR ANY WEB SITE ACCESSED WHILE USING THE SERVICE WILL NOT CONTAIN DEFAMATORY OR ADULT-ORIENTED MATERIAL, OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; OR (3) THAT THE FUNCTIONS OR SERVICES PERFORMED BY HYPERNIX WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SOFTWARE AND THE HYPERNIX SERVICE WILL BE CORRECTED. IT IS YOUR SOLE RESPONSIBILITY TO ISOLATE THE SOFTWARE AND INFORMATION, EXECUTE ANTI-CONTAMINATION SOFTWARE AND OTHERWISE TAKE STEPS TO ENSURE THAT SOFTWARE OR OTHER INFORMATION OBTAINED FROM THE SERVICE, IF CONTAMINATED OR INFECTED, WILL NOT DAMAGE YOUR INFORMATION OR SYSTEM.
(4) User Conduct: While using the Service, you may not:
(i) harass, threaten, embarrass or cause distress or discomfort upon another User, or any other individual or entity;
(ii) restrict or inhibit any other user from using and enjoying the Service, including causing any chat screen to "scroll" faster than other Users are able to type their message or any other action that causes a similar disruptive effect;
(iii) impersonate any other person or entity, including without limitation any Hypernix official, or misrepresent your affiliation with any other person or entity;
(iv) upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through the Service that is protected by copyright or other proprietary or intellectual property right, or derivative works with respect thereto, without obtaining permission of the copyright owner or rightholder;
(v) upload, post, publish, reproduce, transmit or distribute in any way any component of the Service itself or derivative works with respect thereto, as the Service is copyrighted under applicable copyright laws and may be covered under one or more patents pending;
(vi) upload, post, publish or transmit any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, racist, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute illegal activity, give rise to civil liability, or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export laws and regulations;
(vii) upload, post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through the Service for commercial purposes (other than as expressly permitted by the provider of such information, software or other material);
(viii) post or transmit any bulk e-mails, advertisements, solicitations, offers for sale of goods or services, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial communication (except as otherwise expressly permitted by the Service) or engage in spamming or flooding; or
(ix) post or transmit any information or software which contains a virus, trojan horse, worm or other harmful component.
You understand and acknowledge that we have no obligation to monitor any portion of the Service, including without limitation, content posted by you and other Users thereon. You acknowledge and agree, however, that (i) other Users may monitor any content posted or otherwise communicated by you on any public portion of the entire Service, and (ii) we do retain the right to monitor the Service and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Service properly, or to protect itself or its users. We reserve the right to refuse to post or to remove any information or materials, in whole or in part, that, in our sole discretion, we deem unacceptable, undesirable, inappropriate or in violation of these Terms and Conditions.
You agree to immediately notify us of any unauthorized use of your membership or any other breach of security known or suspected by you. Hypernix assumes no responsibility for the deletion or failure to store electronic-mail messages, chat comments, or other information submitted by you or other users to Hypernix, whether submitted as part of the Service or otherwise.
(5) Listings by Others: Unless produced by Hypernix, the information you access or receive by using the Software, the Service, the directories, listings, Nicks lists, and information sent to you or posted by other users, is provided by the users and is not reviewed, controlled, examined, verified or endorsed by Hypernix in any way. Hypernix may, at its sole discretion, erase, remove, delete, delay, jam or alter such information without prior notice, for functional or any other reason. By using the Software and the Service you agree to: (i) determine whether the information complies with your needs; (ii) determine whether you have adequate legal rights to store, reproduce or otherwise make use of information in the manner contemplated by you; and (iii) comply with any legal obligations, including but not limited to, obligations imposed by copyright, secrecy, defamation, decency, privacy, security and export laws.
(6) Links from and to the Service: The Software and Service contain features that may link you to third parties' Web sites, directories, servers or services ("Linked Services"). These features are provided by Hypernix only as a convenience. The Linked Services are not reviewed, controlled or examined by Hypernix in any way and Hypernix is not responsible for the content of any such Linked Services, or any link contained therein. The offering of these features does not imply endorsement of the Linked Services by Hypernix. It is your sole responsibility to comply with the appropriate terms of service of the Linked Services as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Services and any content contained thereon. In no event shall Hypernix be liable to anyone for any damage arising from or occasioned by the creation or use of the Linked Services or the information or material accessed-through these Linked Services. Hypernix reserves the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Services from the Hypernix Software and Service and/or to introduce different features or links to different users.
(7) Intellectual Property Rights: As between Hypernix and you, Hypernix is the sole owner of the Software and Service, including without limitation, all applicable U.S. and non-U.S. copyrights, patents, trademarks, and trade secrets, and other intellectual property rights appurtenant thereto. Except as otherwise specifically provided in these Terms and Conditions, you may not download or save a copy of the Service or any portion thereof, for any purpose. You may, however, print a copy of individual screens appearing as part of the Service solely for your personal non-commercial use or records. All title and intellectual property rights in and to the content of any third party Web site which may be linked to or viewed in connection with the Service is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content except as allowed by such third party.
(8) Unsolicited Materials: Hypernix does not solicit nor does it wish to receive any confidential, secret or proprietary information or other material from you through the Service, Hypernix Web Site, Hypernix's mail and e-mail addresses, or in any other way. Any information or material submitted or sent to Hypernix, including without limitation via any chat portion of the Service, will be deemed not to be confidential or secret. By submitting or sending documents, information or other material to Hypernix or by posting information on any portion of the Service you: (i) warrant that you have no rights of any kind to the material and that to the best of your knowledge no other party has any rights to the material; and (ii) grant Hypernix an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute the material, and you further agree that Hypernix is free to use any ideas, know-how, concepts or techniques you send us for any purpose.
(9) Limitation of Liability: IN NO EVENT WILL HYPERNIX, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SUCCESSORS OR ASSIGNS, BE LIABLE TO ANY PARTY (i) FOR ANY INDIRECT, DIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SOFTWARE, SERVICE, VARIOUS DIRECTORIES AND LISTINGS OR ANY OTHER SOFTWARE OR OTHER CONTENT INCLUDED AS PART OF THE SERVICE, EVEN IF HYPERNIX SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY OTHER SOFTWARE OR OTHER CONTENT INCLUDED AS PART OF THE SERVICE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, HYPERNIX 'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT WILL HYPERNIX'S LIABILITY WITH RESPECT TO THE USE OF THE SOFTWARE AND SERVICE EXCEED FIVE HUNDRED ($500) U.S. DOLLARS.
(10) Indemnification: By agreeing to use the Service, you agree to defend, indemnify and hold Hypernix, its affiliates, officers, directors and employees harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use of the Service or the placement or transmission of any message, information, software or other materials through the Service by you or users authorized by you or related to any violation of these Terms and Conditions by you or any user authorized by you.
(11) Cancellation and Termination: Hypernix may, at its sole discretion, terminate the Service or your use of the Service, permanently or temporarily, at any time and without cause. You may at any time cancel your use of the Service by sending a letter to Hypernix Technologies, Ltd., 11 Nachmani st., Tel-Aviv, Israel or an e-mail message to hpnx_cancel@hypernix.com requesting that we cancel your membership in the Service.
Shortly after cancellation or termination, we will remove from the Service all content associated with your membership. Upon cancellation or termination, you will immediately cease all use of any software and any documentation provided to you by the Service and return or destroy all copies thereof. Except as otherwise expressly provided herein, all sections of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, indemnities, warranty disclaimers, and limitations of liability. Termination is not an exclusive remedy and we reserve all other available remedies in contract, law or equity.
(12) Privacy Policy: Hypernix will never willfully disclose individually identifiable information about any of its customer to any third party without first receiving that customer's permission.
By using the Hypernix Software and the Service, or any part thereof, you agree to and acknowledge the following:
i. Required Registration Information. During the initial registration, you will be required to provide certain non-personal information about yourself which will generally be available and freely accessible to other Hypernix users.
ii. Optional Registration Information. During the initial registration, you will be asked to provide additional information about yourself which, if you agree, will generally be available and freely accessible to other Hypernix Users and other third parties.
iii. Nicks Names. Hypernix, in its sole discretion, may deny, restrict, or require a User to modify a Nick name at any time for any reason.
iv. Group Chat Messages. A group chat message (a "Group Chat Message") is a message meant to be sent from one Hypernix User to all other Users who are using the Service and browsing simultaneously on the same Web site as the sender of the message. Unless explicitly stated otherwise, the information entered, posted or available through or on the Service or the Hypernix Web Site, including without limitation, the Group Chat portion and/or the "Gooeybox" portion of the Service, message boards and bulletin boards will be available to all Hypernix Users. In addition, unless you close or disconnect the Service, a real-time indication of your visit to a specific Web site will be available to all Hypernix Users who are browsing simultaneously on the Web site you are visiting.
v. Private Chat Messages. A private chat message (a "Private Chat Message") is a message meant to be sent directly from one Hypernix User to another Hypernix User. Subject to all general security limitations inherent in communicating via the Internet, the content of a Private Chat Message will not be visible to Hypernix Users generally.
vi. A User may send an e-mail message (an "E-Mail Message") to any e-mail address, whether or not the intended recipient is a Hypernix User. An E-Mail Message will be sent to the intended recipient through the User's own E-Mail service, subject to the terms and conditions and restrictions of that service. E-Mail Messages are not transmitted through the Service or stored on any Hypernix Servers. Subject to all general security limitations inherent in communicating via the Internet, the content of an E-Mail Message will not be visible to Hypernix Users generally.]
vii. User Settings. Hypernix may collect settings, technical and other information from your computer, such as your operating system, the Software and browser versions, connectivity, various communication parameters and other information related to the operation and interaction of the Software, subject to the provisions herein. This information is collected in order to provide you and other Users with, or access to, the Hypernix Service and for the other purposes described herein, subject to the provisions herein.
viii. Usage Patterns. Hypernix gathers information and usage patterns related to your use of the Software, and the Service, including without limitation, real time tracking of Web sites visited by you and other users, to, among other things, better understand how our users use the Service and the various features thereof, as well as to help us provide offerings to you as an individual and to conduct market research and other commercial activities.
ix. Cookies. Hypernix may use cookies to save certain information about a User, such as a password or preferences, in order to facilitate a User's future activities. Cookies are pieces of information that are placed on an individual user's hard drive to enable the user to more easily communicate and interact with the Service. Hypernix will never use cookies to retrieve information from your computer that is unrelated to the Service.
x. IP Addresses. Hypernix collects IP addresses for the purposes of system administration and to report aggregate information. An IP address is a number that's automatically assigned to your computer. Web servers can automatically identify individual computers by their IP address. We do not link IP addresses to any personally identifiable information.
xi. Commercial Purposes. Information retrieved by means of the foregoing paragraphs may be used for commercial purposes, including without limitation, advertising, targeted advertising, marketing, co-registration to other services, promotional or any other commercial activity, subject to the provisions herein.
xii. Statistical Purposes. Without limitation of the foregoing, information retrieved by means of the foregoing paragraphs may be compiled and used for statistical purposes in aggregate, anonymous form. Such aggregate compilations will only include Users' demographic, non-personal information, such as age, gender, country, and purchasing preferences.
xiii. Consent to Processing. Users, including without limitation Users in the European Union, fully understand and unambiguously consent to the collection and processing of their personal information in the United States.
xiv. Access to Information in Certain Circumstances. Notwithstanding anything to the contrary in this Agreement, Hypernix shall, pursuant to valid legal process such as a search warrant, subpoena or court order, allow access to all available and relevant information in order to comply with such process and protect Hypernix's rights and property. If warranted, Hypernix may also allow access to this information in special emergencies where physical safety is at risk. Users' IP addresses may also be traced by Hypernix and disclosed for these purposes.
xv. Closing or Disconnecting the Service. At any time you may choose to navigate the Internet without using the Service by closing or disconnecting the Service window. When the Service window is closed, none of the information in the foregoing paragraphs will be accessible to Hypernix or any other Hypernix User through the Service.
(13) Copyrights and Copyright Agent: Hypernix may, at its sole discretion, terminate the accounts of users who infringe others' intellectual property rights. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
* An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
* A description of the copyrighted work that you claim has been infringed;
* A description of where the material that you claim is infringing is located;
* Your address, telephone number, and email address;
* A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
* A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Copyright Agent
c/o Hypernix Technologies, Ltd.
Telephone: 972-3-6203832
Facsimile: 972-3-5258054
E-mail: hpnx@hypernix.com
(14) Miscellaneous:
If any part of this agreement 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.
Hypernix may transfer, assign sublicense or pledge in any manner whatsoever, any of its rights and obligations under this agreement to a subsidiary, affiliate successor thereof or to any third party whatsoever, without notifying you or receiving your consent. You shall not transfer, assign, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under this agreement.
Hypernix may change the Terms and Conditions from time to time and at any time, with or without a release of a new version of the Software, without notice to you, by posting such changes on the Hypernix Web Site. You agree that your continuing to use the Software and/or Service for a period of thirty (30) days after such notice has been posted on the Hypernix Web Site for the first time shall constitute your consent to the new or revised set of Terms and Conditions.
You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Hypernix Web Site or the Service any data or software that cannot be exported out of the United States without prior written government authorization, including but not limited to, certain types of encryption software. The above assurance and commitment shall survive termination of this agreement.
You agree that the laws of the State of New York, excluding its conflicts-of-law rules, shall govern this Agreement. Please note that your use of the Software as well as the Service may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Hypernix or relating in any way to your use of the Software or the Service resides in the courts of the State of New York, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of New York, in connection with any such dispute and including any claim involving Hypernix or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers.
Copyright (c)1999 Hypernix Technologies, Ltd. ALL RIGHTS RESERVED.
