Terms of Use and Conditions of Sale

TERMS OF USE & CONDITIONS OF SALE

OVERVIEW

IMPORTANT – PLEASE CAREFULLY READ AND UNDERSTAND OUR TERMS OF USE AND CONDITIONS OF SALE (“TERMS” OR “AGREEMENT”) BEFORE ACCESSING, USING, PLACING AN ORDER, OR MAKING A TRANSACTION THROUGH OUR WEBSITE.  THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES (SEE SECTIONS 14 AND 15).  THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT. PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

Your use of https://etftradingresearch.com/, including any sub-domains thereof, affiliated websites , and mobile applications (collectively, the “Website”), which are owned and maintained by Hyperion Financial Group, LLC.   (“Hyperion,” “we,” “our,” “us”), are governed by the policies, terms, and conditions set forth below.  Please read our terms carefully.  We offer the Website, including all information, tools, products, and services available from the Website to you, the user, conditioned upon your acceptance of all terms, conditions, policies, and notices stated here.  By accessing, using, placing an order, or making a transaction over the Website, you agree to the terms set forth herein.  If you do not agree to these terms and conditions in their entirety, you are not authorized to use the Website in any manner or form whatsoever.

THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION.  ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 16 OR IF YOU OPT-OUT. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION PROVISIONS IN SECTION 16 BELOW, WHICH DESCRIBES YOUR RIGHT TO OPT-OUT.

You can review the most current version of the Terms at any time on this page: https://etftradingresearch.com/terms-of-use-and-condition-of-sale/.  We reserve the right to update, change, or replace any part of these Terms by posting updates and/or changes to our Website.  It is your responsibility to check this page periodically for changes.  YOUR CONTINUED USE OF OR ACCESS TO THE WEBSITE FOLLOWING THE POSTING OF ANY CHANGES CONSTITUTES BINDING ACCEPTANCE OF THOSE CHANGES.

TABLE OF CONTENTS

Overview

Table of Contents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TERMS OF USE AND CONDITIONS OF SALE

  • Website Use

By using the Website and agreeing to these Terms, you represent that you are at least the age of majority in your state or province of residence.  If you use the Website, you affirm that you have the legal capacity to enter into a binding contract with us, have read this Agreement, and understand and agree to its terms.

  • Privacy and Security Disclosure

Hyperion’s Privacy Policy may be viewed here. The Privacy Policy is incorporated into these Terms by reference and constitutes a part of these Terms.

  • General Conditions and Website User Conduct Restrictions

All aspects of our Website are protected by U.S. and international copyright, trademark, and other intellectual property laws.  You do not acquire any ownership or other rights by downloading or using the Website or any material on it. 

You agree not to use or attempt to use the Website or any products or services in any unlawful manner or for any unlawful purpose.  You further agree not to commit any unlawful act or attempt to commit any unlawful act on or through the Website including, but not limited to: (1) hacking and other digital or physical attacks on the Website; (2) publishing vulgar, abusive, obscene, or defamatory material; (3) soliciting others to perform or participate in any unlawful acts; (4) violating any international, federal, provincial or state regulations, rules, laws, or local ordinances; (5) infringing upon or violating our intellectual property rights or the intellectual property rights of others; (6) harassing, abusing, insulting, harming, defaming, slandering, disparaging, intimidating, or discriminating based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (7) submitting false or misleading information; (8) uploading or transmitting viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Website; (9) collecting or tracking the personal information of others; (10) interfering with or circumventing the security features of the Website; or (11) any other unlawful act.

Hyperion reserves the right to terminate your access to the Website or any of its products or services if it determines that you (1) do not comply with these Terms; (2) provide false, inaccurate, or incomplete information during our registration process; (3) engage in any conduct that would otherwise harm any of Hyperion’s rights or interests in its Website, products, services, or other property; or (4) for any or no reason whatsoever without prior notice to you. Hyperion may take any other actions necessary in this regard or seek any remedies permitted by law.

  • No Investment Recommendations or Professional Advice 

Hyperion does not provide personalized investment advice or execute trades on your behalf.  Neither the Website nor any of Hyperion’s products or services are intended to provide tax, legal, insurance, or investment advice.  None of the content provided on the Website or through any of Hyperion’s products or services should be construed as an offer to sell, a solicitation of an offer to buy, or a recommendation for any security by Hyperion or any third party.  You alone are solely responsible for determining whether any investment, security or strategy, or any other product or service, is appropriate or suitable for you based on your investment objectives and personal and financial situation. You should consult a registered investment advisor, attorney, or tax professional regarding your particular financial situation, investing strategies, or specific legal or tax situation.

To the extent that any of the content published on the Website may be deemed to be investment advice or recommendations in connection with a particular security, such information is impersonal and not tailored to the investment needs of any specific person.  You understand that an investment in any security is subject to a number of risks and that discussions of any security published on the Website will not contain a list or description of relevant risk factors.

You understand that performance data is supplied by sources believed to be reliable, that the calculations on our Website are made using such data, and that such calculations are not guaranteed by these sources, the information providers, or any other person or entity, and may not be complete.

From time to time, our Website may reference prior articles and opinions that we have published.  These references may be selective, may reference only a portion of an article or opinion, and are likely not to be current.  As markets change continuously, previously published information and data may not be current and should not be relied upon.

All content on the Website is presented only as of the date published or indicated and may be superseded by subsequent market events or for other reasons.  In addition, you are responsible for setting the cache settings on your browser to ensure you are receiving the most recent data

  • Securities & Investing Disclosure; Hypothetical Performance Results Disclosure; Trade Alerts Disclosure

This Website provides information about the stock market and other investments. All investments involve risk that losses may exceed the invested amount and that the past performance of a security, industry, sector, market, or product does not guarantee future results or returns. YOU ACKNOWLEDGE THAT STOCK, FUTURES, AND OPTION TRADING INVOLVES HIGH RISKS THAT MAY RESULT IN YOUR LOSS OF LARGE SUMS OF MONEY. When investing in stocks or purchasing options, you may lose all of the money you invested.  When investing in futures, you may lose more than the funds you invested. Being a successful “paper trader” or “paper investor” during one period of time does not mean that you will make money when you actually invest during a later time period. Market conditions constantly change.

The information set forth on this Website is not an invitation to trade any specific security or class of securities. Investing requires risking money in pursuit of future gain. That is your decision, and you are solely responsible for your investment decisions. Do not risk any money you cannot afford to lose. This Website does not take into account your own individual financial and personal circumstances. You are encouraged to consult with a qualified investment professional regarding any trading strategy or a particular trade. Your failure to seek professional, detailed and personally-tailored advice prior to making any investment could result in actions contrary to your best interests and loss of capital. We make no representation that you will or are likely to achieve profits or losses similar to those presented on this Website. This Website is for informational purposes only and does not provide investment advice. The owner of this Website does not fall within the federal or state definition of an investment adviser and is not registered as such.

Hypothetical or simulated performance results have many inherent limitations, some of which are mentioned below, and there are frequently sharp differences between hypothetical performance results and actual results subsequently achieved by any particular trading program. Unlike an actual performance record, simulated results do not represent actual trading. Since the trades have not actually been executed, the results may have under- or over- compensated for the impact, if any, of certain market factors, such as lack of liquidity. One of the limitations of hypothetical performance results is that they are generally prepared with the benefit of hindsight. In addition, hypothetical trading does not involve financial risk, and no hypothetical trading record can completely account for the impact of financial risk in actual trading. For example, the ability to withstand losses or to adhere to a particular trading program in spite of the trading losses are material points, which can also adversely affect trading results. There are numerous other factors related to the market in general or to the implementation of any specific trading program that cannot be fully accounted for in the preparation of hypothetical performance results all of which can adversely affect actual trading results.

The Website contains information regarding some of our successful hypothetical trades. We also have hypothetical trades where we lost money (not including fees and commissions). Past Results are not necessarily indicative of future results.

For customers trading options, the futures charts are presented for informational purposes only. They are intended to show how investing in options can depend on the underlying futures prices; specifically, whether or not an option purchaser is buying an in-the-money, at-the-money, or out-of-the-money option. Furthermore, the purchaser will be able to determine whether or not to exercise his or her right on an option depending on how the option’s strike price compares to the underlying futures price. The futures charts are not intended to imply that option prices move in tandem with futures prices. In fact, option prices may only move a fraction of the price move in the underlying futures. In some cases, the option may not move at all or even move in the opposite direction of the underlying futures contract.

Hyperion may send “trade alerts” to end users via email or text in advance of the trade being executed. Hyperion cannot guarantee due to technology limitations that end users will receive the alert before the trade is executed, nor guarantees that the alerted trade will occur as the conditions and other variables upon which the alerted proposed trade is based may not materialize. Further, Hyperion does not guarantee that you will be able to execute the same trade at the alerted price or position size as market conditions change rapidly. Hyperion encourages you not to simply copy alerted trades in your own portfolio. Trade alerts are presented to help you learn how to make investment decisions for yourself. You understand and agree that you alone are responsible for your own trading activity and investment decisions.

 

  • Modifications to the Website and Prices

We reserve the right to modify or discontinue access to the Website (or any part or content thereof) without notice at any time.  We shall not be liable to you or to any third party for any modification, suspension, or discontinuance of access to the Website.  Certain products or services may be available exclusively online through the Website.  

All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion.  Any offer for any product or service made on this Website is void where prohibited.

 

  • Account Registration

In order to access some of the products or services of the Website, you will be required to create an account.  By creating this account, you agree to the following:

  • You may only maintain a single account;
  • You may never share your account user name or password or knowingly provide or authorize access to your account; 
  • You may never use another user’s account without permission;
  • When creating your account, you must provide accurate and complete information;
  • You are solely responsible for the activity that occurs on your account, and you must keep your account password secure;
  • You must notify us immediately of any breach of security or unauthorized use of your account; and
  • You will be liable for any use made of your account or password and the losses of Hyperion or others due to such unauthorized use.  We will not be liable for your losses caused by any unauthorized use of your account.

Hyperion has the right, in its sole discretion, to cancel your account or suspend your access to the Website.

  • User Communications

By using any Hyperion services, and accessing the services, you expressly consent to receive electronically all communications, agreements, documents, notices and disclosures (“Notices”) that we provide in connection with your account and your use of the services.  Notices may, without limitation, take the form of electronic mail, in-app messages, and in-Website communications. Additionally, Notices may take the form of electronic mail containing promotional, marketing, and advertising information and recommendations that we believe may be of interest to you.  If you do not wish to receive such promotional emails, you may unsubscribe at any time by following the instructions within, and Hyperion will honor any requests to unsubscribe within 30 days.

Hyperion may, at its discretion, use SMS services to deliver alerts, partner advertisements/offers, and stock news to end users and clients. The information received is requested by the end user or is based on an existing business relationship or transaction with Hyperion. The information sent may contain advertising or a solicitation. Message frequency varies. Message and data rates may apply. Users can text HELP to the sending number for help and reply STOP to cancel receiving text messages. Carriers are not liable for delayed or undelivered messages. See Hyperion full sms disclosure here.

 

  • Order Placement and Acceptance; Subscription Billing Disclosure

Your electronic order confirmation, or any form of confirmation, does not signify our acceptance of your order.  We reserve the right to accept or deny anyone’s order for any reason.  In the event we deny your order, you will receive a refund to your original form of payment.  You understand and agree that we will not be liable for any losses or damages that may result from our refusal to provide you any product or service.  We reserve the right to require additional information before processing any order.

Many of Hyperion’s products and services are offered on a subscription basis. If you purchase a subscription, it is automatically billed each stated period (e.g. monthly, quarterly, annually) to the payment method you provided when you purchased the subscription unless and until you cancel the subscription. We may use an account updater to automatically update your payment information in the event it changes, in which case, your renewal will be billed to the updated account information. 

If you wish to cancel your subscription, you may do so at any time; however, you must cancel your subscription at least forty-eight (48) hours prior to your next billing date to avoid being billed for the next renewal period. 

 

You may also cancel your subscription by contacting Customer Support by phone or email  Please visit our Contact Us Page for contact information.

 

  • Refund Policy 

Subscription payments are non-refundable.  When you cancel your subscription, you will have access to the product or service until the end of that subscription period.

Most of Hyperion’s products and services do not include a money-back guarantee. From time to time, Hyperion may run promotional offers where a money-back guarantee is advertised in connection with the purchase of a particular product or service.  The terms of that guarantee will be stated on the checkout page at the time of purchase. Regardless of the specific terms of any advertised money-back guarantee, the money-back guarantee shall only be available for the first subscription period.  Additionally, customers who elect a refund under any money-back guarantee and then resubscribe to the same product or service within a two-year period will not be entitled to any applicable money-back guarantee.

  • Payment 

All charges are in U.S. Dollars.  By submitting payment information to us, you represent and agree that: (i) you are fully authorized to use that card or account; (ii) all payment information provided is complete and accurate; (iv) you will be responsible for any payment card fees; and (v) that sufficient funds exist to pay us the amount(s) due.

We and our third-party payment service providers may request, and we may receive, updated payment card information from your card issuer, such as updated card numbers and expiration date information when your payment card has expired.  If such updated information is provided to us and our third-party payment service providers, we will update your account information accordingly.  Your payment card issuer may give you the right to opt-out of providing vendors and third-party payment service providers with your updated credit card information.  If you wish to opt-out of your payment card’s updating service, you should contact your payment card issuer.

We are not responsible for any fees or charges that your bank or payment card issuer may apply.  If your bank or credit card issuer reverses a charge to your credit card, we may bill you directly and seek payment by another method including a mailed statement. 

  • Social Media

This section applies to everyone who interacts with our social media presence, including comment sections, feeds, and other elements of social media presence viewable on Facebook, Instagram, YouTube, Pinterest, Twitter, Google+, LinkedIn, or any of the many other available external third-party social media platforms we may use (“Social Media Presence”). 

The sites and platforms that host our Social Media Presence are not controlled by us and therefore have their own privacy policies and terms of use.  The comments and opinions expressed by users on social media are theirs alone and do not reflect the opinions of Hyperion, and we have no obligation to monitor or remove user comments.  If you see an offensive or inappropriate post or comment on our Social Media Presence, you should report it to the operator of the applicable site or platform using the procedures they have established for that purpose.

  • Digital Millennium Copyright Notice
  1. DMCA Notice

This Website maintains specific contact information provided below, including an email address, for notifications of claimed infringement regarding materials posted to this Website.  All notices should be addressed to the following contact person:

Notification of Claimed Infringement: 

Hyperion Financial Legal Department

Attn:  Brian Mikes 

20701 N Scottsdale Rd #107-154, Scottsdale, AZ 85255

Tel: (844) 888-4113

Email: help@hypfin.com    

You may contact our agent for notice of claimed infringement specified above with complaints regarding allegedly infringing posted material and we will investigate those complaints.  If the posted material is believed in good faith by us to violate any applicable law, we will remove or disable access to any such material, and we will notify the posting party that the material has been blocked or removed. 

In notifying us of alleged copyright infringement, the Digital Millennium Copyright Act requires that you include the following information: (i) description of the copyrighted work that is the subject of claimed infringement; (ii) description of the infringing material and information sufficient to permit us to locate the alleged material; (iii) contact information for you, including your address, telephone number and/or email address; (iv) a statement by you that you have a good faith belief that the material in the manner complained of is not authorized by the copyright owner, or its agent, or by the operation of any law; (v) a statement by you, signed under penalty of perjury, that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed; and (vi) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner’s behalf.  Failure to include all of the above-listed information may result in a delay in the processing of your complaint.

  1. Intellectual Property Rights, License

The audio and video materials, images, photographs, articles, opinions, and other text, graphics, illustrations, logos, depictions, layouts, compilations, designs, interfaces, digital downloads, software, data compilations and other content associated with the Website (the “Content”) are owned or licensed by and to Hyperion or other authorized third parties and are protected by intellectual property, copyright, trademark, trade dress and other laws in the U.S. and in other countries. You must comply with all such laws and applicable copyright, trademark or other legal notices or restrictions. You shall not remove or alter any copyright, trademark, or other legal notices marked on the Content. As between you and Hyperion, we will retain all right, title, and interest in and to the Website and the Content. No transfer of ownership to any portion of the Content shall be made as a result of any access you are granted. Except as expressly set forth in these Terms of Sale or expressly granted to you in writing by Hyperion, no rights are granted to you. You agree to abide by any and all additional copyright notices, information or restrictions contained in any part of the Website. The compilation of the Content on the Website is the exclusive property of Hyperion.

You are only permitted to access and view the Content for personal, non-commercial purposes in accordance with these Terms of Sale, and may not build a business or other enterprise utilizing any of the Content, whether for profit or not. Except as provided in these Terms of Sale or otherwise expressly authorized by us in writing, you may not (either directly or through the use of any software, device, internet site, web-based service or other means) download, stream capture, store in a database, archive or otherwise copy any part of the Website or Content; upload, sell, rent, lease, lend, broadcast, transmit or otherwise disseminate, distribute, display or perform any part of the Website or Content; license or sublicense any part of the Website or Content; or in any way exploit any part of the Website or Content. In addition, except as provided in this Terms of Sale or otherwise expressly authorized by us in writing, you are strictly prohibited from modifying Content; creating, distributing or advertising an index of any significant portion of the Content; or otherwise creating derivative works or materials that otherwise are derived from or based in any way on the Content, including mash-ups and similar videos, montages, translations, desktop themes, fonts, icons, wallpaper, greeting cards, and merchandise. This prohibition from creating derivative works is applicable even if you intend to give away the derivative material free of charge.

  1. Copyright

The copyright in all materials provided on the Website is owned by Hyperion or its affiliate(s). Except as stated herein, none of the material contained in the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise, without the prior written consent of Hyperion. Permission is hereby granted to view, copy, print and download the materials on the Website for personal, noncommercial use only, provided such materials are used solely for informational purposes, and all copies, or portions thereof, include this copyright notice. Hyperion may revoke any of the foregoing rights at any time. You may not, without Hyperion’s prior written consent, “mirror” any material contained on the Website on any other server. Upon termination of any rights extended hereunder, you must immediately destroy any downloaded and printed materials obtained from any Website. Any unauthorized use of any material contained on the Website may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.

  1. Trademarks

The trademarks, service marks and logos (“Trademarks”) used and displayed on the Website are registered or unregistered Trademarks of Hyperion. Nothing on the Website shall be construed as granting, by implication, estoppel or otherwise any license or right to use any Trademark displayed on the Website without the prior written consent of the Trademark owner. The name of Hyperion, or any Trademark may not be used in any way including in any advertising or publicity pertaining to distribution of materials on the Website without the prior written consent of Hyperion. Hyperion prohibits the use of any Hyperion logo and Trademark as a “hot” link to any web site unless establishment of such link is approved in advance by Hyperion in writing.

  • DISCLAIMER OF WARRANTIES

EXCEPT WHERE PROHIBITED BY LAW, THIS WEBSITE AND ALL PRODUCTS AND SERVICES PROVIDED ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY AND/OR COMPLETENESS OF ANY INFORMATION ON THIS WEBSITE.  WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) OUR PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (B) THE WEBSITE OR THE SERVER(S) THAT MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  • DISCLAIMER OF LIABILITIES

EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT SHALL HYPERION OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY POLICY, THE PRODUCTS AND SERVICES, OR YOUR OR A THIRD-PARTY’S USE OR ATTEMPTED USE OF THE WEBSITE OR ANY PRODUCT OR SERVICE, REGARDLESS OF WHETHER HYPERION HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS.  THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES.  THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE.  IF, NOTWITHSTANDING THE LIMITATIONS OF LIABILITY SET FORTH ABOVE, HYPERION IS FOUND LIABLE UNDER ANY THEORY, HYPERION’S LIABILITY AND YOUR EXCLUSIVE REMEDY WILL BE LIMITED TO USD $500.00.  THIS LIMITATION OF LIABILITY SHALL APPLY FOR ALL CLAIMS, REGARDLESS OF WHETHER HYPERION WAS AWARE OF OR ADVISED IN ADVANCE OF THE POSSIBILITY OF DAMAGES OR SUCH CLAIMS.  SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.

  • DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS ARBITRATION AND CLASS ACTION WAIVER PROVISION CAREFULLY.  IT REQUIRES YOU TO ARBITRATE DISPUTES WITH HYPERION ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION.  YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY.  THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.  YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS A PRIVATE ATTORNEY GENERAL.  YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. 

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 THE TERMS OF THESE CONDITIONS OF USE AS A COURT WOULD.

  • General

Arbitration is a manner of resolving a “Claim” without filing a lawsuit.  “Claim” means any dispute between you, Hyperion, or any involved third-party relating to your account, your use of the Website, your relationship with Hyperion, these Terms, or the Privacy Policy.  This includes any and all claims that relate in any way to your use or attempted use of the products and services, and any act or omission by Hyperion or any third-party related to your use or attempted use of the products or services, and any communications from Hyperion or any third party on Hyperion’s behalf.  You, Hyperion, or any involved third-party may pursue a Claim.  Hyperion agrees to final and binding confidential arbitration should it have any Claims against you.  Likewise, you agree to final and binding confidential arbitration should you have any Claims against Hyperion.  By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to final and binding confidential arbitration.  You further agree that all claims must be arbitrated on an individual basis and not on a class basis, only individual relief is available, and that claims of more than one customer cannot be arbitrated or consolidated with those of any other customer.  This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.

Notwithstanding anything to the contrary herein, (a) a representative action for public injunctive relief pursuant to California’s Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.), Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.) and/or False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) must be arbitrated on a class basis, (b) in the event that the foregoing clause is deemed invalid or unenforceable, a representative action for public injunctive relief pursuant to California’s Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.), Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.) and/or False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) may be brought in the state or federal courts located in Arizona on a class basis, and (c) any claims other than for public injunctive relief must be arbitrated on an individual, non-class basis as otherwise set forth in this section.

  • Exceptions

Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and Hyperion both retain the right to pursue, in small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court’s jurisdiction.  Hyperion will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court. 

The following claims shall not be subject to final and binding arbitration and must be adjudicated only in the state or federal courts located in Arizona: (i) an action by Hyperion relating to the infringement or validity of our proprietary rights, including without limitation, trademarks, service marks, trade dress, copyrights, trade secrets, or patents; or (ii) an action by Hyperion for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of this Agreement.  You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection “b” in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.  Small claims matters may be filed in any small claims court with personal and subject matter jurisdiction over the parties.  For all other matters excluded from final and binding arbitration by this subsection “b,” the parties consent to exclusive jurisdiction and venue in the state and federal courts located in  Arizona, and forever waive any challenge to said courts’ jurisdiction and venue.

  •  Required Pre-Dispute Procedures

Before initiating any Claim against the other, you and we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution.  You may send the written description of any dispute you have with us by certified mail to Hyperion, Attn: Legal Department, 20701 N Scottsdale Rd., Ste. #107-154, Scottsdale, AZ 85255.  Hyperion will contact you by letter at the billing address you provided to us or at the email address you provided to us.  You agree to negotiate with Hyperion or its designated representative in good faith about your problem or dispute.  If for some reason the dispute is not resolved within 60 days after receipt of the written dispute, we agree to the dispute resolution provisions herein.

  • Commencing Arbitration

You and Hyperion agree to commence any arbitration proceeding within one (1) year after the Claim arises (the one-year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after one (1) year shall be forever barred. 

  • Arbitration Location

If the amount in controversy is $500 or less, then the arbitration may be conducted by telephone or by written submissions.  Otherwise, the arbitration shall be conducted in Arizona unless Hyperion otherwise agrees to arbitrate in another forum requested by you. 

  • Organization, Rules and the Arbitrator

We each agree that any and all Claims other than those exempted under subsection “b” above shall be submitted to final and binding confidential arbitration before a single arbitrator of the American Arbitration Association (“AAA”).  Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party, within the time period set forth in subsection “d” above.  The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA, Consumer Arbitration Rules, in effect at the time of submission of the demand for arbitration.  The AAA’s Rules are available at www.adr.org or by calling 1-800-778-7879.  The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the Privacy Policy, and this arbitration provision.  The arbitrator shall have the exclusive and sole authority to determine whether any dispute or Claim is arbitrable.  The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Hyperion.

  •  Fees

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules.

  •  Governing Law and Award

The arbitrator shall follow the substantive law of the State of Arizona without regard to its conflicts of laws principles.  Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA.  Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 

  • Enforceability

This provision survives termination of your account or relationship with Hyperion, bankruptcy, assignment, or transfer.  If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply.  If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect. 

  • Miscellaneous

Failure or any delay in enforcing this arbitration provision in connection with any particular Claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the 1 year limitation period set forth above.  This provision is the entire arbitration agreement between you and Hyperion and shall not be modified except in writing by Hyperion. 

  • Amendments

Hyperion reserves the right to amend this arbitration provision at any time.  Your continued use of the Website, purchase of a product or service on or through the Website, or use or attempted use of a Hyperion product or service, constitutes your consent to such changes. 

YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION.  YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU PURCHASE, USE, OR ATTEMPT TO USE A PRODUCT OR SERVICE PURCHASED ON OR THROUGH THE WEBSITE (WHICHEVER COMES FIRST) BY WRITING TO US VIA CERTIFIED MAIL AT HYPERION, ATTN:  LEGAL DEPARTMENT, 20701 N Scottsdale Rd., Ste. #107-154, Scottsdale, AZ 85255.  FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT OR SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE THE PRODUCT OR SERVICE.  IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT.

  • Indemnification

To the fullest extent permitted by law, you agree to indemnify, defend, and hold harmless Hyperion, its parent, subsidiaries, predecessors, successors and affiliates, and their respective partners, officers, directors, agents, representatives, contractors, licensors, service providers, subcontractors, suppliers, interns, and employees, from and against any and all claims, actions, losses, liabilities, damages, expenses, demands and costs of any kind, including, but not limited to, reasonable attorneys’ fees, arising out of, resulting from, or in any way connected with or related to (1) your breach of these Terms, the documents they incorporate by reference, or the Agreement; (2) your breach of any representations or warranties in this Agreement; or (3) your violation of any law or the rights of a third-party.

Our Website may include materials from third-parties or links to third-party websites.  We are not liable for any third-party materials or websites.  Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction.  Complaints, claims, concerns, or questions regarding third-party products or services should be directed to the applicable third party. 

  • Testimonials, Reviews, and Other Submissions

Anything that you submit or post to the Website and/or provide us, including without limitation, photographs, testimonials, ideas, know-how, techniques, questions, reviews, comments, testimonials, and suggestions (collectively, “Submissions”) is and will be treated as non-confidential and nonproprietary, and we shall have the right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, and create derivative works from such Submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such Submissions.  You represent and warrant that you are the owner or have sufficient rights to share the Submissions with us. Hyperion does not guarantee anyone’s success or that anyone will earn/experience the results that are portrayed on this Website. The testimonials and reviews portrayed on this Website are exceptional results from our most successful users. These testimonials do not represent the generally expected user experience, nor do they guarantee future success.

Furthermore, by using any of the communications tools available as part of our services, you acknowledge and agree that (a) all communications tools constitute public, and not private, means of communication between you and the other party or parties, (b) communications sent to or received from third party service providers or other third parties are not endorsed, sponsored or approved by Hyperion in any manner (unless expressly stated otherwise by Hyperion) and (c) communications are not pre-reviewed, post- reviewed, screened, archived or otherwise monitored by Hyperion in any manner, though Hyperion reserves the right to do so at any time at its sole discretion in accordance with these Terms. Additionally, through such communication tools, Hyperion may make certain types of services available to you. You acknowledge and agree that such services (e.g., chat room services) may be monitored or recorded for quality control purposes and that the information or material provided as part of the services is provided for educational purposes only.

Hyperion reserves the right to correct grammatical and typing errors, to shorten testimonials prior to publication or use, and to review all testimonials prior to publication or use.  Hyperion shall be under no obligation to use any, or any part of, any testimonial or review submitted.

 

  • Electronic Communications 

You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.

  • Assignment 

You may not assign any of your rights under these Terms, and any such attempt will be null and void.  Hyperion and its affiliates may, in their individual discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to these Terms if some or all of Hyperion’s business is transferred to another entity by way of merger, sale of its assets or otherwise.

  • No Waiver 

No waiver by Hyperion of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by Hyperion to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

  • Severability 

In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms.  Such determination shall not affect the validity and enforceability of any other remaining provisions.

  • Termination

In the event that we terminate this Agreement, Sections 2-5, 12-17, 19-25, as well as any representations, warranties, and other obligations made or taken by you, shall survive the termination of this Agreement.

  • Entire Agreement 

These Terms, the Agreement, and any policies or operating rules posted by us on the Website or in respect to the Website constitute the entire agreement and understanding between you and Hyperion, and supersedes and replaces any prior or contemporaneous agreements.  Any ambiguities in the interpretation of these Terms or the Agreement shall not be construed against the drafting party.

  • Questions or Additional Information

If you have any questions regarding your account, any product or service, or these Terms, please contact our customer support team by phone, mail, or email.  Please visit our Contact Us Page for additional contact information.