HyperMart's User Agreement
NOTICE: We’ve updated our Terms of Service, as of June 18, 2018, to clarify each party's compliance obligations in Section 8 with respect to applicable laws including the European Union’s General Data Protection Regulation (GDPR) effective May 25, 2018.
Your use of HyperMart services is subject to the terms and conditions set forth in these HyperMart Terms of Service ("Agreement"). This Agreement explains (i) what's allowed when using our Services; (ii) the rights you have as a user of our Services; (iii) the rights HyperMart has if you do something which is not allowed when using our Services; and (iv) many other important terms. This Agreement is a legal contract between you and HyperMart and it is important that you read it carefully. If there is anything you do not understand in this Agreement, please contact us.
NOTICE: this Agreement includes an alternative dispute resolution provision for disputes that may arise between users of our Services and HyperMart or its corporate affiliates. Please see Section 25(b) below which includes an Arbitration Agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the Arbitration Agreement by following the opt out procedure described therein.
Eligibility, Registration and Account Security
This section describes the eligibility criteria we require from all of our users. When you register to use our Services (as defined below), we need to make sure that you are able to legally contract with HyperMart. This section also explains that you are responsible for account security including all use of the Services through your User account, whether or not authorized by you.
HyperMart Services do not comply with the U.S. Health Insurance Portability and Accountability Act ("HIPAA"). This section describes our policy on HIPAA in more detail.
Term and Termination Policy
HyperMart offers hosting plans for a fixed period of time that you select upon purchase (e.g. 1 month, 1 year, etc.). Even though we do not want you to, we know that one day you might want to leave HyperMart. The instructions to cancel or disable automatic renewal can be found here.
To ensure uninterrupted service, your Services will automatically renew on your renewal date. This section explains this process in more detail.
Refunds and 30-Day Money-Back Guarantee
This section describes HyperMart's refund policy and 30-Day Money-Back Guarantee. If you purchase an account with a thirty (30) day money-back guarantee and cancel during the first thirty (30) days of your term, you may receive a full refund of all basic hosting fees paid. If your hosting plan included a free domain name and you cancel the Services, there is a non-refundable $15 domain fee. This fee not only covers our own costs, but you are welcome to keep the domain name and transfer it or point it to elsewhere.
All Users are required to comply with applicable law and have certain obligations with respect to their use of HyperMart Services. You are also required to cooperate with HyperMart and utilize hardware and software that is compatible with the Services. In addition, you are responsible for the security of your account and its content, as well as for maintaining a backup of your content and promptly removing any malware from your account.
Billing and Payment
HyperMart offers a great range of Services to suit everyone's needs and at prices to suit everyone's pockets. The fees you pay are based on the plan you choose and any add-on products you purchase. All payments are taken, in advance, for the full term of your plan.
Customers are required to utilize server resources in an efficient and responsible manner. Excessive use of server CPU and memory resources by a customer can interfere with or prevent normal service performance for other customers. Additional information about our policy on CPU, Bandwidth and Disk Usage can be found here.
Governing Law and Arbitration
The governing law and jurisdiction provision as set forth in Section 25(a) shall apply to all Users. For Users who purchased or signed up for the Services after July 1, 2017, the arbitration clause in Section 25(b) shall also apply.
This Agreement is an agreement between The Endurance International Group, Inc., operating as HyperMart (collectively, "HyperMart") and you ("User"). This Agreement sets forth the general terms and conditions of your use of the products and services made available by HyperMart and of the HyperMart website (collectively, the "Services"). By using the Services, you agree to be bound by this Agreement. Please read this Agreement carefully.
We may in our sole discretion change or modify this Agreement at any time. We will post a notice of any significant changes to this Agreement on the HyperMart website for at least thirty (30) days after the changes are posted and will indicate at the bottom of this Agreement the date these terms were last revised. Any changes or modifications to this Agreement shall be effective and binding on you as of the date indicated in a notice posted on this page, together with any options you may have as a current customer to accept or reject changes, where required by law or otherwise made available. If no date is specified, your use of the Services after such changes or modifications shall constitute your acceptance of the Agreement as modified. If you do not agree to abide by this Agreement, you are not authorized to use or access the Services and your sole remedy is to cancel your account.
Use of the Services is also governed by the following policies and agreements, which are incorporated by reference. By using the Services, you are also agreeing to the terms of the following policies and agreements.
Additional terms may apply to certain Services, and such additional terms will be made available to you and will be incorporated by reference with such Services.
Eligibility; Registration and Account Security
- The Services are intended solely for users who are eighteen (18) years of age or older. Any registration by, use of or access to the Services by anyone under eighteen (18) is unauthorized and in violation of this Agreement. By registering for or using the Services, you represent and warrant that you are eighteen (18) years of age or older.
- If you use the Services on behalf of another party, company or other organization, you represent and warrant that you are authorized to bind such party, company or organization to this Agreement and to act on behalf of such party, company or organization with respect to any actions you take in connection with the Services.
- You agree to (i) provide accurate, current and complete information about you and your organization (if applicable) as prompted by the registration forms ("Registration Data"); (ii) maintain the confidentiality of your password and other information related to the security of your account; (iii) maintain and promptly update the Registration Data and any other information you provide to HyperMart, to keep such information accurate, current and complete; and (iv) be fully responsible for all use of your account and for any actions that take place through your account, whether or not authorized by you.
- You acknowledge and accept that despite the security measures HyperMart takes in connection with the Services, HyperMart's system and/or User Websites (as defined below) may nonetheless become compromised, including without limitation, by hackers, Internet viruses, malware, worms or Trojan horses, or the like. Under such circumstances, HyperMart may take corrective action as it deems appropriate in its sole discretion and you acknowledge and agree that HyperMart shall have no liability to you for any damage or loss that you may incur due to such corrective action.
- HyperMart does not recommend the use of the Services for hosting or storing personal or sensitive content and shall bear no responsibility or liability in the event of compromise, loss of, or damage to, any such content.
- You are responsible for the security of your User account, User Content and User Websites. You further acknowledge and agree that you are solely responsible for backing-up your User account, including without limitation, all User Content and User Websites.
Dedicated Servers. HyperMart reserves the right to reset the password on a dedicated server if the password on file is not current so that we may perform security audits as required by our system operations and security teams. It is your responsibility to ensure that there is a valid email address and current root password on file for your dedicated server to prevent downtime from forced password resets. HyperMart reserves the right to audit servers as needed and to perform administrative actions at the request of our teams. Dedicated servers are NOT backed up by us. It is your responsibility to maintain backups.
Prohibited Persons (Countries, Regions, Entities, and Individuals).
The Services are subject to export control and economic sanctions laws and regulations administered or enforced by the United States Department of Commerce, Department of Treasury's Office of Foreign Assets Control ("OFAC"), Department of State, and other United States authorities (collectively, "U.S. Trade Laws"). You may not use the Services to export or re-export, or permit the export or re-export, of software or technical data in violation of U.S. Trade Laws. In addition, by using the Services, you represent and warrant that you are not (a) an individual, organization or entity organized or located in a country or territory that is the target of OFAC sanctions (including Cuba, Iran, Syria, Sudan, North Korea, or the Crimea region of Ukraine); (b) designated as a Specially Designated National or Blocked Person by OFAC or otherwise owned, controlled, or acting on behalf of such a person; (c) otherwise a prohibited party under U.S. Trade Laws; or (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license. Unless otherwise provided with explicit written permission, HyperMart also does not register, and prohibits the use of any of our Services in connection with, any Country-Code Top Level Domain Name ("ccTLD") for any country or territory that is the target of OFAC sanctions. The obligations under this section shall survive any termination or expiration of this Agreement or your use of the Services.
- Except for User Content (as defined below), all content made available through the Services, including images made available through any website builder tools provided by HyperMart (the "Licensed Images"), designs, templates, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (collectively with the Licensed Images, "HyperMart Content"), are the property of HyperMart or its licensors. No HyperMart Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any HyperMart Content.
- To the extent applicable, you are granted a limited, revocable, non-sublicensable, license to use the Licensed Images solely in connection with the HyperMart Services. You are prohibited from using any Licensed Images: (i) with pornographic, defamatory, or unlawful content or in such a manner that infringes upon any third party's trademark or intellectual property rights; (ii) as a trademark, service mark, or logo; and (iii) portraying any person depicted therein (a "Model") in a way that a reasonable person would find offensive, including but not limited to depicting a Model: (a) in connection with pornography, "adult videos", adult entertainment venues, escort services, dating services, or the like; (b) in connection with the advertisement or promotion of tobacco products; (c) as endorsing a political party, candidate, elected official, or opinion; (d) as suffering from, or medicating for, a physical or mental ailment; or (e) engaging in immoral or criminal activities. c. Any use of the HyperMart Content other than as specifically authorized herein is prohibited and will automatically terminate your rights with respect to your use of the Services and the HyperMart Content granted herein. All rights of HyperMart or its licensors that are not expressly granted in this Agreement are reserved to HyperMart and its licensors.
- You may be able to upload, store, publish, display and distribute information, text, photos, videos, emails, and other content on or through the Services (collectively, "User Content"). User Content includes any content posted by you and users of any of your websites hosted through the Services ("User Websites"). You are solely responsible for any and all User Content and any transactions or other activities conducted on or through User Websites. By posting or distributing User Content on or through the Services, you represent and warrant to HyperMart that (i) you have all necessary rights to post or distribute such User Content, and (ii) your posting or distribution of such User Content does not infringe or violate the rights of any third party.
- You acknowledge and agree that HyperMart may, but is not obligated to, monitor User Content and may immediately take any corrective action in HyperMart's sole discretion, including without limitation removal of all or a portion of the User Content, and suspension or termination of any and all Services without refund of any pre-paid fees. You hereby agree that HyperMart shall have no liability due to any corrective action that HyperMart may take, including without limitation suspension or termination of Services.
- You hereby grant to HyperMart, to the extent necessary to provide the Services, a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute User Content and the User Website; and (ii) make archival or back-up copies of the User Content and the User Website. Except for the rights expressly granted above, HyperMart is not acquiring any right, title or interest in or to the User Content, all of which shall remain solely with you.
The Services do not comply with the U.S. Health Insurance Portability and Accountability Act ("HIPAA"). You are solely responsible for compliance with all applicable laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services are not appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. HyperMart does not control or monitor the information or data you store on, or transmit through, our Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with HIPAA. Users requiring secure storage of "Protected Health Information" as defined under HIPAA are expressly prohibited from using this Service for such purposes. Storing and permitting access to "Protected Health Information," is a material violation of this Agreement, and grounds for immediate account termination. HyperMart does not sign "Business Associate Agreements," and you agree that HyperMart is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, please contact us by phone or chat.
Payment Card Industry Security Standard Disclaimer.
HyperMart complies with the Payment Card Industry Security Standard ("PCI Standard") in connection with the collection and processing of your data and billing information. However, you are solely responsible for the security of the data and billing information you collect on your User Website. HyperMart does not monitor User Websites for compliance and therefore we are not able to verify whether any User Website complies with the PCI Standard.
Compliance with Applicable Law.
For the purposes of European Directive 95/46/EC, the General Data Protection Regulation 2016/679) (“GDPR”) and any applicable national implementing laws in your jurisdiction, and with respect to your subscribers’ or customers’ personal data, you acknowledge and agree that you are the Controller (as that term is defined in the GDPR), and we are a Processor (as that term is defined in the GDPR) insofar as you may store personal data through your use of our Services only as permitted and subject to the terms of this Agreement. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law (including the GDPR).
To the extent the GDPR applies to you, you represent and warrant that in using our Services, you will clearly describe in writing how you plan to use any personal data collected and you will ensure you have a legitimate legal basis to transfer such personal data to us and that you have the necessary permission to allow us to receive and process (e.g., store) such personal data on your behalf. The additional data processing terms set forth here shall apply where you are a Controller subject to the GDPR.
Additional User Responsibilities.
- You will cooperate fully with HyperMart in connection with HyperMart's provision of the Services. It is solely your responsibility to provide any equipment or software that may be necessary for you to use the Services. Delays in the performance of your obligations under this Agreement will extend the time for HyperMart's performance of its obligations that depend on your performance.
- You will be solely responsible for ensuring that all User Content and User Websites are compatible with the hardware and software used by HyperMart to provide the Services, which hardware and software may be changed by HyperMart from time to time in its sole discretion.
- You will be solely responsible for backing-up all User Content, including any User Websites off of HyperMart's servers. This is an affirmative duty. HyperMart is not responsible for the loss of any User Content. Note: It is essential that Users backup files offline, even if user purchases or has backup products provided by HyperMart.
- You are responsible for the security of your User account, User Content, and User Websites. You will maintain at all times, and are responsible for, the security and confidentiality of all account credentials, including your username and password.
- You will use your best efforts to ensure that the User Content and User Websites are and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code. You are required to prevent, identify, and promptly remove or disable from your User account, User Content and User Websites any code that may disrupt, disable, harm or cause the misuse of your account, HyperMart Content or the Services in any way (including any malware).
Third Party Websites
The Services may contain links to other websites that are not owned or controlled by HyperMart ("Third Party Sites"), as well as articles, photographs, text, graphics, pictures, designs, sound, video, information, and other content or items belonging to or originating from third parties ("Third Party Content"). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Services or any Third Party Content posted on or made available through the Services, including the content, accuracy, offensiveness, opinions, reliability, security, privacy practices or other policies of the Third Party Sites or the Third Party Content. If you decide to access the Third Party Sites or to access or use any Third Party Content, you do so at your own risk and our terms and policies do not apply. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate.
Billing and Payment.
Fees Due. You will pay to HyperMart all fees for the Services set forth in the registration form presented to you at the time you order the Services and for all fees for subsequent Renewal Periods at the time of renewal.
Price Increases. HyperMart may increase the fees for the Services (i) in the manner permitted in the applicable description of the particular Services published by HyperMart on the HyperMart website or in a promotional offer (the "Service Description") and (ii) at any time on or after expiration of the Initial Term by providing thirty (30) days prior written notice to you. Written notice may be in the form of (i) notices and updates provided through the User billing tool provided as part of the Services, (ii) notices and updates otherwise provided through the Services, or (iii) notifications of pricing for renewal terms. It is your sole responsibility to periodically review billing-related information provided by HyperMart through the User billing tool or other methods of communications and notices sent or posted by HyperMart.
Taxes. The advertised fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services provided hereunder. All such taxes may be added to HyperMart's invoices for the fees as separate charges to be paid by you. All fees are non-refundable when paid except as otherwise provided herein.
Automatic Renewals. By purchasing the Services, you agree to allow HyperMart to place your account on a recurring payment plan. The account will automatically be re-billed according to the term length of the Services you select. For Services with term lengths of three (3) months or longer, HyperMart shall provide notice of the upcoming charge to User no later than thirty (30) days prior to the payment date for each Renewal Period. This notification will be sent to the contact email address on file for the Account. Unless you disable the automatic renewal option, we will automatically renew the Services up to fifteen (15) days before your renewal date and will take payment from the payment method we have on file. HyperMart may make multiple attempts to collect payment from the payment method on file if the initial attempt is not successful.
VPS and Dedicated Accounts. As a courtesy and not as an obligation, HyperMart will automatically renew User's VPS or Dedicated Hosting Account by charging the applicable fee for the regular rate to User's current method of payment on file. For VPS or Dedicated Hosting accounts with a Term of one (1) month, this renewal will occur twenty-four (24) hours prior to the expiration of User's Services. For accounts with a term of three (3) months or greater, this renewal will occur fifteen (15) days prior to the expiration of User's Hosting Account and HyperMart will provide notice of the upcoming charge to User no later than thirty (30) days prior to the payment date. In the event that a VPS or Dedicated Hosting Account that has been set to manual renewal by User expires, the account will be suspended seven (7) days after expiration if no payment is received. If the account has not been renewed after fourteen (14) days have elapsed following expiration, HyperMart may continue to attempt to collect payment or the account may be terminated.
Add-On Services. If you purchase certain add-on services from HyperMart such as Domain Privacy, SSL certificates, or SiteLock, you may be required to apply the Service to a specific domain name to begin using the Service. HyperMart is not responsible if you fail to apply an add-on to a domain name and will not provide refunds for any purchased but unused Services.
Failure to Pay. If you fail to pay the fees due, we may continue to attempt to collect payment from the payment method on file, suspend, and/or terminate your Services and pursue the collection costs incurred by HyperMart, including without limitation, any arbitration and legal fees and HyperMart's reasonable attorneys' fees. If any check is returned for insufficient funds, HyperMart may impose a minimum processing charge of $25.00 plus any applicable taxes. Accounts will not be activated or reactivated until all outstanding amounts are paid. We are not responsible for any deleted or lost User Content that results from any suspension or reactivation. Dedicated servers are subject to being reclaimed and all content deleted if you fail to make a timely payment. If you make a late payment we do not automatically reactivate the dedicated servers. Contact HyperMart directly after you make a late payment to reactivate the dedicated server.
Fraud. It is a violation of this Agreement to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, and/or electronic checks. We may report all such misuses and fraudulent uses (as determined by us in our sole discretion) to appropriate government and law enforcement authorities, credit reporting services, financial institutions and credit card companies.
Disputes. You have ninety (90) days to dispute any charge or payment processed by HyperMart. If you have a question concerning a charge you believe is incorrect, please call us and we will investigate. Our phone number is 877.287.5929. If you initiate a chargeback, there may be a minimum charge of $15.00 plus applicable taxes to reactivate your account and we reserve the right to suspend your account for the duration of the dispute. Hosting accounts that have an open dispute may be disabled for security purposes.
Term and Termination of the Services.
Term of Services. The initial term of the Services purchased by you will be for the time period set forth in the registration form presented to you when you order the Services (the "Initial Term"). Unless you cancel prior to the end of the Initial Term or as otherwise stated in a notice sent to you at least thirty (30) days prior to the expiration of your then-current term, the Services will automatically renew for successive periods of equal length as the Initial Term (each a "Renewal Period"). You acknowledge, agree, and authorize us to automatically bill the applicable fee and/or charge your credit card or other payment method on file up to fifteen (15) days prior to the end of each Renewal Period, unless you terminate or cancel the Services prior to such charge as provided in this section. The "Term" of this Agreement shall include the Initial Term and all Renewal Periods, if any.
Termination Procedure. You may terminate or cancel the Services you purchased at any time during the Term by giving HyperMart notice by phone or chat. The cancellation request is subject to verification of ownership of the account and/or domain, as determined in HyperMart's sole discretion. In the event of such cancellation, you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation subject to the terms of the thirty (30) day money-back guarantee if applicable. After the account is canceled, all User Content will be permanently removed from the server. Please make a backup of all User Content before you contact HyperMart to cancel your account.
Disabling automatic renewal option. Please see below procedure for opting out of automatic renewal.
Disabling automatic renewal option for basic hosting services. You may disable the automatic renewal option for your hosting account via the Account Renewal form in the Control Panel. Additional instructions can be found here. After the account is downgraded to a free domain parking account or deleted, all User Content will be permanently removed from the server. Please make a backup of all User Content before you disable autorenewal. So long as your Account remains active, other products and services on the Account such as domain names or Domain Privacy will continue to autorenew.
Disabling automatic renewal option for domain names or other add-on products. You may disable the automatic renewal option for domain names via DomainCentral in the Control Panel. For other add-on services (such as Domain Privacy), please contact HyperMart by phone or chat for assistance.
Termination by HyperMart. HyperMart may terminate your access to the Services, in whole or in part, without notice in the event that: (i) you fail to pay any fees due hereunder to HyperMart; (ii) you violate the terms and conditions of this Agreement; (iii) your conduct may harm HyperMart or others, cause HyperMart or others to incur liability, or disrupt HyperMart's business operations (as determined by HyperMart in its sole discretion); (iv) you are abusive toward HyperMart's staff in any manner; or (v) for any other lawful reason or as otherwise specified in this Agreement. In such event, HyperMart will not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination.
Modification of Services. HyperMart reserves the right to modify, change, or discontinue any aspect of the Services at any time.
Data Deletion. Upon termination of the Services for any reason, User Content, User Websites, and other data will be deleted. You are always responsible for maintaining back-up copies of all User Content, User Websites, and other data. HyperMart is not responsible for the loss of any User Content. Note: It is essential that users backup files offline, even if user purchases or has products provided by HyperMart.
30 Day Money-Back Guarantee
- If you purchase an account with a thirty (30) day money-back guarantee, you may receive a full refund of all basic hosting fees paid (the "Money-back Guarantee Refund") if you cancel within the first thirty (30) days of the Initial Term (the "Money-back Guarantee Period"). To request a Money-back Guarantee Refund, please contact our billing department by calling 877.287.5929 or by using LiveChat. The Money-back Guarantee Refund shall only accrue and be due to you upon your compliance with, and subject in all respects to, the terms and conditions of this section. Money-back Guarantee Refunds only apply to basic hosting services and do not apply to domain registration fees, setup fees, or any fees for additional Services.
- The Money-back Guarantee Refund is valid for PayPal and credit card payments only. Due to the costs associated with processing payments made by other methods, we are not able to offer the Money-back Guarantee Refund for other payment methods. Any refunds are made at the sole discretion of HyperMart.
- Only first-time hosting accounts are eligible for the Money-back Guarantee Refund. For example, if you previously had an account with HyperMart and you canceled your account and signed up for a new account, you will not be eligible for the Money-back Guarantee Refund on the second account. In addition, refunds are not offered for accounts that are suspended or terminated for violating this Agreement.
Domain Name Refund. If your plan includes a free domain name and you are entitled to a Money-Back Guarantee Refund pursuant to the terms above, our standard fee of $15.00 for the domain name (and any applicable taxes) (the "Domain Name Fee") will be deducted from your refund if you would like to keep your domain.
HyperMart as Reseller or Licensor. HyperMart is acting only as a reseller or licensor of certain third party services, hardware, software and equipment used in connection with the Services ("Non-HyperMart Products"). HyperMart shall not be responsible for any changes in the Services that cause any Non-HyperMart Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Non-HyperMart Products either sold, licensed or provided by HyperMart to you or purchased directly by you used in connection with the Services will not be deemed a breach of HyperMart's obligations under this Agreement. Any rights or remedies you may have regarding the ownership, licensing, performance or compliance of any Non-HyperMart Product are limited to those rights extended to you by the manufacturer of such Non-HyperMart Product. You are entitled to use any Non-HyperMart Product supplied by HyperMart only in connection with your permitted use of the Services. You shall use your best efforts to protect and keep confidential all intellectual property provided by HyperMart to you through any Non-HyperMart Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. You shall not resell, transfer, export or re-export any Non-HyperMart Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
Internet Protocol (IP) Address Ownership. If HyperMart assigns you an Internet Protocol ("IP") address for your use, you shall have no right to use that IP address except as permitted by HyperMart in its sole discretion in connection with the Services during the Term. HyperMart shall retain ownership of all IP addresses assigned to you by HyperMart, and HyperMart reserves the right to change or remove any and all such IP addresses in its sole discretion.
Acceptable Use Policy. Hosting space is intended for use in accordance with HyperMart's Acceptable Use Policy, and is limited to Web files, active e-mail and content of the hosted User Websites, not for storage (whether of media, e-mails, or other data). Hosting space further may not be used as offsite storage of electronic files, e-mail or FTP hosts. HyperMart expressly reserves the right to review every user account for excessive usage of CPU, bandwidth, disk space and other resources that may be a result of your violation of this Agreement or the Acceptable Use Policy. HyperMart may, in its sole discretion, terminate access to the Services, apply additional fees, or remove/delete User Content for those User accounts that are found to be in violation of HyperMart policies. You hereby agree that HyperMart shall have no liability due to any action that HyperMart may take, including without limitation suspension or termination of Services in connection with your violation of this section.
Unlimited Hosting Space; excessive MySQL files. HyperMart does not set arbitrary limits on the amount of disk space a User can use for the User's Website, nor does HyperMart charge additional fees based on an increased amount of disk space used, provided User's use of the disk space complies with this Agreement (i.e. files are used for User Websites and not for storage). Accounts with a large number of files (inode count in excess of 200,000) can have an adverse affect on server performance. Similarly, accounts with an excessive number of MySQL/PostgreSQL tables (i.e., in excess of 1000 database tables) or of database size (i.e., in excess of 3GB total MySQL/PostgreSQL usage or 2GB MySQL/PostgreSQL usage in a single database) negatively affect the performance of the server. HyperMart may request that a User's number of files/inodes, database tables, or total database usage be reduced to ensure the proper performance of the Services or may terminate User's account, with or without notice.
Unmetered File Transfer. HyperMart does not set arbitrary limits on the amount of visitor traffic User Websites can receive or on the amount of content a User can upload to User Websites in any given month, nor does HyperMart charge additional fees based on the increased use of bandwidth, as long as User's use of the Services complies with this Agreement. In most cases, User Websites will be able to support as much traffic as User can legitimately acquire. However, HyperMart reserves the right to limit processor time, bandwidth, processes, or memory in cases where it is necessary to prevent negatively impacting other Users.
Virtual Private Servers (VPS) and Dedicated Servers Usage.
Resource Usage. Dedicated and VPS usage is limited by the resources allocated to the specific plan that you have purchased.
- Backup. Each User is solely responsible for backing-up all User Content, including any User Websites. HyperMart is not responsible for the loss of any User Content.
Subscriber Super-user Access. User acknowledges that User is solely responsible for any changes made with super-user access and that HyperMart may not be able to reverse any changes and/or recover data lost or damaged through the use of super-user privileges. HyperMart's level of support to those Users accessing super-user privileges will be limited as follows:
- Reinstallation of corrupted modules, such as Control Panel files, web server files, etc.;
- Reinstallation of the baseline operating system and core file image at User's. User acknowledges and understands that a new image install will cause the irreversible complete loss of all data stored on the server. HyperMart is not liable for any data lost as a result of this action;
- Restoration of files from available backups at User's request. This restoration will be a full restore of the backup files; HyperMart does not offer file-by-file restoration services;
- HyperMart will not attempt any configuration or setup of DNS, firewalls, web server, etc.; and
- HyperMart will attempt basic diagnostics upon User's request. HyperMart does not offer in-depth manual diagnostics as part of the Service. User may contact HyperMart Professional Services to inquire about additional support offerings.
Marketing Credits. Some HyperMart hosting plans include free marketing credits offered by third party vendors which can be redeemed by customers located in the United States only. Additional terms and conditions apply:
- Full terms and conditions for Google Adwords can be found here
- Additional terms and conditions for Bing Ad Credits can be found here
Parked Domain Services. By registering for the Services you agree that HyperMart may point your domain name or DNS to one of HyperMart's or HyperMart's affiliates web pages as a default landing page, and that they may place advertising on your web page (the "Parked Pages"). You shall have no right to any compensation and shall not be entitled to receive any funds related to the monetization of your Parked Pages. If you do not wish for HyperMart to display Parked Pages on your web page you can opt out of such practice. If you have a Unix account, you can opt out of Parked Pages through your Control Panel. If you have a Windows account, please contact support for instructions on opting out.
MOJO Marketplace Terms.
- MOJO Marketplace automates the installation of certain open source applications. You are free to install open source applications independently of MOJO Marketplace by following the instructions provided by HyperMart or the organization that developed the open source application. Any such open source applications are licensed from the applicable open source application provider and not from HyperMart.
- We do not provide support for the application once the application has been successfully installed. Any support requests regarding actual use of the application must be directed to the organization that developed the application.
- You are responsible for creating back-ups before upgrading to the next version.
- MOJO Marketplace is unable to guarantee that the version currently provided is the latest version being distributed by the vendor.
- Any security risks including, but not limited to, hacking, phishing and information piracy are your sole responsibility.
- MOJO Marketplace reserves the right to discontinue applications at any time.
- MOJO Marketplace applications are installed at your own risk. We are not liable for lost data, lost profits, or any other damage caused by open source applications provided through MOJO Marketplace.
- Additional terms and conditions apply: Full terms and conditions for MOJO Marketplace can be found here
Standard and Private-Label Reseller Programs.
- In addition to all terms and conditions described in this Agreement, the following shall also be applicable to a User participating in the HyperMart Wholesale, Wholesale Plus, or Private-Label Resellers' Programs (collectively, the "Reseller"):
- Reseller shall ensure that each User signed up by Reseller complies with the terms and conditions of this Agreement.
- Reseller cannot make any modifications to this Agreement. Any such alterations shall be deemed a violation of this Agreement and could result in the cancellation of Reseller's accounts. HyperMart is not responsible for any modifications made to this Agreement by Reseller.
- In the event that a User signed up by a Reseller is determined to be in violation of this Agreement, Reseller shall, upon receipt of notice of the violation, take prompt action to ensure that the account in question is updated to be in full compliance with this Agreement. In addition, HyperMart, in its sole discretion, reserves the right to take action directly if Reseller fails to do so.
- HyperMart is not responsible for the acts or omissions of Resellers. Reseller hereby agrees to indemnify HyperMart from and against any and all claims made by any User or third party arising from the Reseller's acts or omissions.
- HyperMart reserves the right to revise its Wholesale, Wholesale Plus and Private-Label Reseller Programs at any time. Changes shall take effect when posted online or on any subsequent date as may be set forth in any required notice provided by us in connection therewith.
- Resellers in the Wholesale Reseller Program assume all responsibility for billing and technical support for each of the Users signed up by the Reseller.
- The Reseller shall maintain accurate, current and complete contact information on each account and promptly update the contact information and any other information you provide to HyperMart, to keep such information accurate, current and complete.
Technical Support Services.
- Except as described otherwise in paragraph (b) below, HyperMart will provide technical support via chat and phone for HyperMart Services ("Technical Support Services"). You will be required to provide as much information as possible to aid our investigation into any issues or problems. By utilizing HyperMart's Technical Support Services, you grant HyperMart permission to access your account, if necessary, to resolve your issue. You agree that HyperMart and its agents and employees are not liable for any damage resulting from the provision of customer support.
Ineligibility for Technical Support Services. HyperMart will not provide Technical Support Services if (a) you are in breach of this Agreement; (b) the need for Technical Support Services is due to (i) any modification or attempted modification of the Services by you or any third party outside of HyperMart's control; or (ii) your failure or refusal to implement changes recommended by HyperMart; or (c) you are abusive toward our staff in any manner.
VPS and Dedicated Servers. HyperMart will provide a default operating system installation on the dedicated server hardware that permits super-user server access to our support staff. User agrees and acknowledges that if User alters or removes this server access, HyperMart's ability to provide technical support to User may be severely limited.
Disclaimer. You acknowledge and agree that any use of the Services, including any information or content obtained through the Services, is entirely at your own risk. You further acknowledge and agree that HyperMart exercises no control over, and accepts no responsibility for, the content of the information passing through HyperMart's host computers, network hubs and points of presence or the Internet.
- HyperMart represents and warrants to you that the Services will be provided in compliance in all material respects with the applicable Services descriptions available on the HyperMart website. Your sole and exclusive remedy, and HyperMart's sole obligation, for breach of the foregoing warranty shall be for HyperMart, at its option, to re-perform the defective Services at no cost to you. The foregoing warranties shall not apply to performance issues or defects in the Services (x) caused by factors outside of HyperMart's reasonable control; (y) that resulted from any actions or inactions of User or any third parties, whether or not authorized by User; or (z) that resulted from your equipment or any third-party equipment not within the sole control of HyperMart.
- THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE BASIS." EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, HyperMart AND ITS AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE "HyperMart PARTIES") DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES PROVIDED HEREUNDER. THE HyperMart PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES (I) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, FREE OF VIRUSES, MALWARE OR OTHER HARMFUL CODE, OR COMPLETELY SECURE; (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES; OR (III) AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SERVICES. THE HyperMart PARTIES ARE NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USERS OR STORED BY USERS ON OR THROUGH THE SERVICES. NO ADVICE OR INFORMATION GIVEN BY HyperMart OR HyperMart's REPRESENTATIVES INCLUDING, WITHOUT LIMITATION, SUPPORT REPRESENTATIVES, SHALL CREATE A WARRANTY. HyperMart DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING. HyperMart DOES NOT WARRANT THAT THE SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY SERVICE OR HyperMart IN PARTICULAR. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
Limitation of Liability.
- HyperMart SHALL NOT BE LIABLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF ITS CONTROL. IN NO EVENT WILL THE HyperMart PARTIES BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY THAT MAY RESULT FROM UNAUTHORIZED ACCESS TO OR MISUSE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION, SENSITIVE INFORMATION OR OTHER INFORMATION OR DATA STORED THEREIN, OR INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES, INCLUDING FROM INTERRUPTION OF SERVICES,, OR ANY USER CONTENT, USER WEBSITES OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, WHETHER OR NOT AUTHORIZED BY YOU, EVEN IF HyperMart IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, HyperMart's LIABILITY TO YOU OR ANY PARTY CLAIMING THROUGH YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO HyperMart FOR THE SERVICES IN THE THREE (3) MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.
You agree to indemnify, defend and hold harmless the HyperMart Parties from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the HyperMart Parties arising out of or relating to (i) your use of the Services, (ii) any breach or violation by you of this Agreement; or (iii) any of your acts or omissions. The terms of this section shall survive any termination of this Agreement.
Governing Law and Legal Action
Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon or arising from an alleged tort, shall be governed by the substantive laws of the Commonwealth of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any suit, action or proceeding concerning this Agreement must be brought in a state or federal court located in Middlesex County, Massachusetts. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Both you and HyperMart hereby agree to waive all respective rights to a jury trial of any claim arising out of or relating to this Agreement.
- Arbitration. For all Users who signed up for or purchased Services on or after July 1, 2017, the Arbitration Agreement shall apply. The Arbitration Agreement includes an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the Arbitration Agreement by following the opt out procedure described therein.
Governing Law and Jurisdiction for users in the European Union
- For users in the European Union, this Agreement, and any non-contractual obligations arising out of, or in relation to it, shall be governed by and construed in accordance with the laws of England and Wales subject only to any mandatory provisions of consumer law in the country in which you reside. The United Nations Convention on Contracts for the International Sale of Goods as well as any other similar law, regulation or statute in effect in any other jurisdiction shall not apply.
- You and HyperMart irrevocably agree that the courts of the country in which you reside shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
- Alternatively, you may raise the dispute with an alternative dispute resolution body via the EU Commission's Online Dispute Resolution (ODR) Platform.
Independent Contractor. HyperMart and User are independent contractors and nothing contained in this Agreement places HyperMart and User in the relationship of principal and agent, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
Headings. The headings herein are for convenience only and are not part of this Agreement.
Entire Agreement. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby.
Severability. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions (unless otherwise specified) thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions (unless otherwise specified) thereof shall remain in full force and effect.
Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
Assignment; Successors. You may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of HyperMart. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. HyperMart may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without your consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights in any person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, you acknowledge and agree that any supplier of a third-party product or service that is identified as a third-party beneficiary in the Service description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against you as if it were a party to this Agreement.
Government Regulations. You may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States (or, if you are outside of the United States, to anyone outside of your national jurisdiction) in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction you operate or do business.
Marketing. You agree that during the Term HyperMart may publicly refer to you, orally and in writing, as a User of HyperMart to the extent permitted by applicable law. Any other public reference to User by HyperMart requires your written consent.
This file was last modified on June 18, 2018.