Hang Terms of Service
Last Updated: May 6th, 2024
ARBITRATION NOTICE: THESE TERMS (“TERMS”) CONTAIN A MANDATORY ARBITRATION AGREEMENT, REQUIRING ANY DISPUTE BETWEEN YOU AND HANG TO BE EXCLUSIVELY RESOLVED BY FINAL AND BINDING INDIVIDUAL ARBITRATION AND REQUIRING YOU TO FOREGO JURY TRIALS, CLASS OR COLLECTIVE ACTIONS OR PROCEEDINGS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY KIND, SUBJECT TO LIMITED EXCEPTIONS. UNLESS YOU OPT-OUT IN ACCORDANCE WITH THE OPT-OUT PROCEDURES IN SECTION 3 BELOW, YOU WILL BE BOUND BY THIS ARBITRATION AGREEMENT.
INTRODUCTION
Estimated, Inc. d/b/a Hang (“Hang,” “we,” “us”) operates an online service that, among other things, offers digital solutions for customer engagement, marketing, brand loyalty and referral and membership programs, together with other services, which may include, without limitation, websites, artificial intelligence, digitally immersive experiences, gamification, omnichannel integrations, software, tools, products, features, and functionality (if any) made available by Hang (collectively, the “Services”). Hang also provides products and certain Services to businesses and other organizations (each, a “Enterprise User”), subject to these Terms, which may be pursuant to one or more separate agreements or orders. In all cases, a Enterprise User is responsible for implementing terms and conditions applicable to Enterprise User's interactions with customers, end-users, or parties with whom the Enterprise User interacts (“End-Users”). If you are interested in becoming a Enterprise User or receiving or using any such Services, contact Hang using this form or emailing support@hang.com.
By accessing or using our Services, you are entering into a binding agreement with Hang that includes these terms and conditions, which govern your access to and use of our Services i.e., these Terms) and any other terms, conditions, or policies linked to in our Terms. Therefore, please carefully review these documents. If you do not agree with the terms of these documents, you may not use our Services. If there is a conflict between these Terms and any other terms or conditions covering a specific area of the Services, the latter terms and conditions shall control unless they expressly state otherwise. In addition to these Terms, we also publish a Privacy Policy available at https://www.hang.com/privacy. We recommend that you read it to better understand how we collect and use any personal information we may collect.
We may modify these Terms. We reserve the right to clarify or amend these terms by publishing an updated version of them to hang.com (the “Website”) or any successor or affiliated website. You acknowledge and agree that, in the event we publish a clarification or amendment of these Terms, your continued use of the Services will be contingent upon your acceptance of the updated Terms.
We may modify the Services. We reserve the right, at our sole discretion, to change the URL of the Website or modify all or part of the Services without notice to you.
YOUR RELATIONSHIP WITH HANG
Hang is not responsible for, nor a party to, any agreement or interaction between you and any third party, including any Enterprise User. This means that, to the extent any Enterprise User or third party interacts or engages with, or makes any offers, products, benefits, rights, utility, or services available to, any End-User or other third party at any time, you understand and agree that Hang shall not be a party to that agreement or have any responsibility or liability whatsoever for, arising out of, relating to, or in connection therewith. Enterprise Users and End-Users are entirely responsible for communicating, promulgating, agreeing to, and enforcing terms and conditions between them and for resolving any disputes arising therefrom or related thereto.
Hang is not responsible for your use of third-party services. The Services may provide access (paid or unpaid) to content, software, products, platforms, and services operated by companies or entities other than Hang, including, without limitation, Enterprise User(s) (“Third-Party Services”). If you choose to access, transact with, or otherwise interact with any Third-Party Services through the Services, you acknowledge and agree that you do so at your own risk, and you understand that by using the Services, you are directing the applicable company or entity to make Third-Party Services available to you. You are solely responsible for your dealings with third parties. When you use the Services to access Third-Party Services, these Terms and any applicable usage terms associated with the Third-Party Services will govern your use thereof. Hang is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Services. Hang does not warrant or endorse, and shall have no liability or responsibility to you or any other person for, related to, or in connection with, any Third-Party Services or for any other materials, products, services, or websites of third parties.
Hang is not a securities exchange, broker, financial institution, fiduciary, underwriter, custodian, or creditor, and does not in any way warrant or represent itself as such. Hang provides a service that, among other things, allows Enterprise Users to , in some instances, directly interact with End-Users.
USING HANG’S SERVICES
As a Enterprise User: You may need an account to access or use our Services, which may require you to provide personal information about individuals or entities who are authorized to access and use the Services on your behalf (“Authorized Users”). In such instance, each Authorized User may be provided a unique login ID and password ("Registration Information”). Registration Information will be unique to each individual and is not transferable to any other person or entity. You are responsible for ensuring that Registration Information remains confidential, and you are responsible for the acts or omissions of your Authorized Users, including, without limitation, any breach of these Terms. You agree to provide complete, accurate, and up-to-date information in connection with your account. You are solely responsible for your account and any associated information provided in connection with your account. Hang is not liable to you or any third party for any acts or omissions by or in connection with your account, whether or not by Authorized Users, or that occur as a result of any information associated with your account being lost or compromised. You shall immediately notify Hang if you discover or otherwise suspect any security issues related to your account.
As an End-User: You may need an account to access or use our Services, which may require you to provide personal information including your name, phone number, or other information. You agree to provide complete, accurate, and up-to-date information to Hang. Hang reserves the right to suspend or terminate your access if any information provided by you proves to be inaccurate, not current, or incomplete. Hang may from time to time ask you for additional identification information as may be required for regulatory or other reasons. Hang reserves the right to access, retain, and disclose your information and content if required to do so by law or we have a good faith belief that such access, retention, or disclosure is reasonably necessary to enforce these Terms, respond to your requests for customer service, respond to a legal notice, comply with legal process, or protect the rights, property, or personal safety of Hang, our users, or the public. You are solely responsible for any associated content, information, or materials provided. Hang is not liable to you or any third party for any acts or omissions by anyone using, or otherwise that occur as a result of any of your information being lost or compromised. If you discover or otherwise suspect any unauthorized use of, or security issues related to, information you’ve provided, you agree to notify Hang immediately.
When you use the Services, your phone carrier may charge you for data, text messages, push notifications, or other wireless access. You are responsible for paying those fees, if any. Please contact your mobile telephone carrier for pricing plans. Hang does not impose a separate fee for sending Hang text messages. These messages or notifications may include information regarding your account, our Services, or promotions. You have the ability, and it is your responsibility, to control the notifications you do, or do not, receive through your device. To opt in to receive text messages from Hang, please follow the instructions provided when you enroll via the Services. To stop receiving text messages from Hang, use the mobile phone corresponding to the number enrolled in Hang text messages and reply “STOP” in response to a text message from the Hang text messaging program. You will then receive confirmation of your opt-out. This will only opt you out of the specific text messaging program associated with that phone number, and you will remain opted in to any other text messaging programs in which you have enrolled. The opt out does not preclude messaging that Hang sends for necessary services. You represent that you are the account holder for the mobile telephone number(s) that you provide. You are responsible for notifying Hang immediately if you change your mobile telephone number. Delivery of information and content to a mobile device may fail due to a variety of circumstances or conditions. You understand and acknowledge that network services, including but not limited to mobile network services, are outside of the control of Hang, and Hang is not responsible or liable for issues arising from them. Hang reserves the right to modify or discontinue, temporarily or permanently, all or any part of Hang text messages, with or without notice. Hang may suspend or terminate your receipt of Hang text messages for any reason without notice to you.
LIMITATIONS ON USE
You agree that you will NOT do any of the following: (i) use the Services for any unlawful, unauthorized, or harmful purpose or in any manner that violates any applicable law or regulation or violates or misappropriates the rights of any third party; (ii) engage in any activity that interferes with or disrupts the Services or the servers and networks connected to the Services or that infringes or misappropriates the intellectual property or proprietary rights of others; (iii) sell, license (or sub-license), lease, assign, transfer, pledge or share any of your rights under any agreement with Hang to any other party, entity, or person; (iv) transfer, distribute, or copy all or any part of the Services and/or the Hang Content (defined below) or refer to the Services by use of framing and/or deep-linking; (v) make use of the Services or distribute any part thereof in any jurisdiction where same is illegal or where such use or distribution would subject Hang or its affiliates to any registration requirement within such jurisdiction or country; (vi) promote any content, products, services, or other information that may be illegal to sell or promote under any applicable law or may reasonably be perceived to be unlawful, inflammatory, offensive, or otherwise inconsistent with the spirit of Hang’s Services, brand, or image; (vii) transmit any viruses or other harmful, infringing, illegal, disruptive, or destructive content, messages, or files; (viii) access the Services through unauthorized means, including, without limitation, any data mining, robots/bots, or similar data gathering and extraction tools; (ix) distribute, publish, send, or facilitate the sending of unsolicited mass messages, promotions, advertising, or solicitations (e.g. “spam”) including unlawful commercial advertising and informational announcements; (x) distribute, publish, send, or facilitate the sending of any inappropriate, inaccurate, misleading, fraudulent, or otherwise illegal content or content which infringes the intellectual property or other rights of third parties including their right for privacy; (xi) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), make any attempt to discover the source code of any of the Services or other software available therein or create derivative works thereof, (xii) remove any copyright, trademark, or other proprietary rights notices contained in or on the Services, (xiii) remove, change or modify any trademarks from or attach any additional trademarks to the Services, (xiv) use the Services in a manner that subjects any part thereof to any obligation to disclose or distribute the source code thereof and/or that may cause others to have the right to modify or create derivative works thereof or cause them to become redistributable at no charge; (xv) circumvent or disable any security features or measures of the Services; (xvi) modify, disclose, alter, translate or create derivative works of the Services or any components thereof; (xvii) build a competitive product or service or any product or service using similar ideas, features, functions, or graphics of any of the Services; (xviii) otherwise violate these Terms or any applicable third party terms; or (xix) aid or encourage any third party to do any of the foregoing.
OWNERSHIP
Hang Content. Hang reserves all rights not expressly granted herein. Unless otherwise indicated in writing by us, the Services, all intellectual property rights, including unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world now or hereafter existing, and all content and other materials contained therein, including, without limitation, the Hang logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Hang Content”) are the proprietary property of Hang or our respective licensors, as applicable. Notwithstanding anything to the contrary in these Terms, the Services and Hang Content may include software components provided by Hang or its affiliates or a third party that are subject to separate terms, in which case those terms shall govern such software components. All other trademarks, registered trademarks, product names, and other names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable owner. Except as allowed under these Terms, you agree not to use any Hang Content or any of Hang’s intellectual property rights (such as trademarks, copyright, and design rights) whether registered or unregistered. All rights therein and goodwill associated therewith shall inure to the benefit of Hang. Reference to any products, services, processes, or other information by name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by Hang.
Feedback. In the event you choose to contact Hang and provide any feedback, comments, and/or suggestions for improvements to, or errors and issues on, the Website or related services (“Feedback”), you acknowledge and agree that your contribution of Feedback does not grant You any right, title, or interest in the Website, services, or in any such Feedback you have provided, nor does such Feedback entitle you to any compensation whatsoever. Wherever necessary, you hereby assign to Hang any and all right, title, and interest (including without limitation, any patent, copyright, trademark, know-how, moral rights and any other intellectual property rights) that you may have in and to any and all Feedback.
REPRESENTATIONS AND WARRANTIES
You have all requisite capacity, power, and authority to enter into and be bound by these Terms. You represent and warrant that: (i) you have all rights, licenses, consents, permissions, authorizations, approvals, and releases necessary to enter into this agreement and authorize Hang to perform the Services; (ii) you are over the age of majority (or else will have your parent or legal guardian sign this agreement on your behalf); (iii) if an agent enters into this agreement on your behalf, then, by signing, the agent represents and warrants that it has the right and authority to sign on your behalf and bind you to the terms hereof and agrees to defend, indemnify, and hold harmless the Hang Parties (defined below) from any claims or damages arising from a breach of such representation and warranty.
Your use of the Services does not violate the rights of any third party or any applicable agreement or law. These Terms do not, and your use of our Services will not: (i) if you are an entity, conflict with or violate any of the charter documents of such entity or any resolution adopted by its equity holders or other persons having governance authority over the entity; (ii) contravene, conflict with, misappropriate, or violate any right of any third party (including, without limitation, third party rights in patent, trademark, copyright, right of publicity or trade secret) or any applicable regulation, law, or other legal requirement to which you, or any of the assets owned or used by you, are subject; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under any material contract or agreement to which you are a party, permit held by you or legal requirement applicable to you.
COPYRIGHT INFRINGEMENT AND DMCA POLICY
If you believe that any user-generated content or other material made available through the Services violates your copyright, please submit a notification in accordance with the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512 to Hang’s DMCA Agent:
Estimated, Inc. d/b/a Hang
401 Broadway, Suite 1703
New York, NY 10013
Attn: Chad Fox
Email: support@hang.com
Phone: 847-977-1301
Hang will respond to all such notices in accordance with the DMCA. In the case of a visitor or user who may infringe or repeatedly infringes the copyrights or other intellectual property rights of Hang or any other party, we may, in our discretion, terminate or deny access to and use of the Services. In the case of such termination, Hang will have no obligation to provide a refund of any amounts previously paid to Hang, if any.
WARRANTY DISCLAIMER
Hang provides the Services “as is.” EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, HANG MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES, INCLUDING THE THIRD PARTY SERVICES AND ANY INFORMATION OR MATERIALS PROVIDED OR MADE AVAILABLE BY HANG. THE SERVICES ARE PROVIDED "AS IS." NEITHER HANG NOR ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE MEMBERS, STOCKHOLDERS, EMPLOYEES, CONSULTANTS, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, “HANG PARTIES”) REPRESENT OR WARRANT THAT (I) THE USE OF ANY OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, WILL BE AVAILABLE WHEN YOU DESIRE TO UTILIZE THE SERVICES, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (II) ANY STORED DATA WILL BE ACCURATE, SECURE, OR RELIABLE, OR (III) ERRORS OR DEFECTS WILL BE CORRECTED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE HANG PARTIES DISCLAIM ALL REPRESENTATIONS, WARRANTIES, PROMISES, OR GUARANTEES OF ANY KIND WHATSOEVER AS TO THE SERVICES OR THIRD PARTY SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE.
INVESTIGATIONS
You will participate in investigations as reasonably requested by Hang. If Hang becomes aware of any possible violations by you of these Terms, Hang reserves the right to investigate such violations. If, as a result of the investigation, Hang believes that criminal activity may have occurred, Hang reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Hang is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services in Hang’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process, or governmental request; (ii) enforce these Terms, or (iii) protect the rights, property, or personal safety of Hang, its affiliates, its users, the public, and all law enforcement or other government officials, as Hang in its sole and absolute discretion believes to be necessary or appropriate. Hang may require you to provide additional information and documents at the request of any competent authority or in order to help Hang comply with applicable law, regulation, or policy, including laws related to anti-laundering (legalization) of incomes obtained by criminal means, or for counteracting financing of terrorism.
In such cases, Hang, in its sole and absolute discretion, may pause, suspend, or cancel your access to and use of the Services until such requested additional information and documents have been reviewed by Hang and accepted as satisfying the requirements of applicable law, regulation, or policy. If you do not provide complete and accurate information and documents in response to such a request, Hang may refuse to provide any content, product, service, and/or further access to the Services to you.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY HANG PARTY BE LIABLE TO YOU FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS, OR GOOD-WILL OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES. UNDER NO CIRCUMSTANCES SHALL ANY HANG PARTY BE REQUIRED TO MAKE SPECIFIC PERFORMANCE, OR ANY OTHER REMEDY.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY AND WHETHER OR NOT THE HANG PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND LIABILITIES PROVIDED IN THIS SECTION, SO SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT HANG PARTIES TO DISCLAIM CERTAIN WARRANTIES OR LIMIT CERTAIN LIABILITIES, THE EXTENT OF HANG PARTIES’ LIABILITY AND THE SCOPE OF ANY SUCH WARRANTIES WILL BE AS PERMITTED UNDER APPLICABLE LAW.
INDEMNIFICATION
You will indemnify Hang and its affiliates for your use of the Services. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Hang and the Hang Parties from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses), and costs (including, without limitation, court costs, costs of settlement, and costs of or associated with pursuing indemnification and insurance), of every kind and nature whatsoever arising out of or related to these Terms or your use of the Services, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”) that are caused by, arise out of, or are related to: (i) your use or misuse of the Services, including any information, data, materials, logos, trademarks, assets, presentations, videos, or other content provided by or on behalf of you in connection with the Services; (ii) your violation of these Terms or applicable law; ; (iii) any breach or non-performance of any representation, warranty, covenant, or agreement made by you; and (iv) your failure to notify Hang if you change your telephone number.
BREACH AND TERMINATION
If you breach any of provision of these Terms, any and all licenses, rights, and permissions granted by Hang, including access to our Services, shall immediately terminate. Hang reserves the right, in its sole and absolute discretion, with or without notice or cause, to suspend, disable, or terminate your account and/or your ability to access and use the Services, at any time.
RESOLUTION OF DISPUTES; AGREEMENT TO ARBITRATE
PLEASE READ THIS SECTION (THE “ARBITRATION AGREEMENT”) CAREFULLY. It affects your legal rights. It provides for resolution of most disputes through individual arbitration instead of court trials and class actions. This section also contains a jury trial waiver and a waiver of any and all rights to proceed in class, collective, consolidated (other than any batching procedures conducted by the arbitral forum), private attorney general, or representative action in arbitration or litigation to the fullest extent permitted by applicable law. References to “Hang”, “you”, “we”, and “us” in this Arbitration Agreement include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future parents, subsidiaries and affiliates; those entities and our respective agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises.
Section 1: Mandatory Individual Arbitration: Any dispute, claim, or controversy arising out of or relating in any way to your visit to, or use of, the Hang Services or otherwise related to the Terms, including those relating to the formation, breach, termination, enforcement, interpretation, validity, scope, or applicability of the Terms and this Arbitration Agreement (collectively, “Dispute” or “Disputes”), whether such Disputes arose before, on, or subsequent to you entering these Terms, and if not resolved through the informal dispute resolution procedure set forth below, shall be exclusively resolved by individual, binding arbitration in accordance with this Arbitration Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory, in whole or in part, and any defense to arbitration, including waiver, delay, laches, or estoppel.
You may not seek injunctive relief against Hang. In the event of a Dispute with Hang, your remedies shall be limited to your right, if any, to recover damages in an action at law, and in no event shall you be entitled to enjoin, restrain, or seek to enjoin or restrain, the use, distribution, or other exploitation of the Services or any other Hang products or services. Notwithstanding the foregoing and the Class Action/Jury Trial Waiver below, you and Hang each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Any legal action by Hang against a non-consumer or its interactions with governmental and regulatory authorities shall not be subject to arbitration. Either party may also elect to have Disputes heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction.
If any court or arbitrator determines that this Arbitration Agreement is void or unenforceable for any reason as to Disputes arising before the Effective Date of this these Terms, then you may still be bound to previous versions of this Arbitration Agreement by reason of your separate agreement to those previous versions.
Section 2: Class Action/Jury Trial Waiver: You and Hang agree that, to the fullest extent permitted by law, each party is waiving the right to a trial by jury or to participate as a plaintiff, claimant, or class member in any class, collective, consolidated (other than any batching procedures conducted by the arbitral forum), private attorney general, or representative proceeding. This means that you and Hang may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Hang may not participate in any class, collective, consolidated (other than any batching procedures conducted by the arbitral forum), private attorney general, or representative proceeding brought by any third party.
Unless both you and Hang agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated (other than any batching procedures conducted by the arbitral forum), or representative proceeding. If any court or arbitrator determines that this Class Action/Jury Trial Waiver is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the Arbitration Agreement shall be deemed null and void in its entirety, and you and Hang shall be deemed not to have agreed to arbitrate Disputes.
To the extent that any claims are allowed to proceed on a class, collective, consolidated (other than any batching procedures conducted by the arbitral forum), or representative basis, such claims must be litigated in a federal or state court of competent jurisdiction in New York, NY, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
Notwithstanding the foregoing, you or Hang may participate in a class-wide settlement.
Section 3: Opt-Out Procedures: To opt out of this Arbitration Agreement, you must send us a written opt-out notice (“Opt-Out Notice”) by email at support@hang.com within 30 days after the earlier of: (1) the date you first accessed the Hang Services; or (2) the date you first provided information to the Services after the Effective Date of these Terms (“Opt-Out Period”). The Opt-Out Notice must contain your full legal name, your complete mailing and email address and phone number, a clear statement that you wish to opt out of this Arbitration Agreement, and your signature. If your Opt-Out Period has passed, you are not eligible to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other provisions of the Terms will continue to apply to you. Additionally, if you opt out of this Arbitration Agreement, you may still be bound to previous versions of this Arbitration Agreement by reason of your separate agreement to those previous versions. In other words, opting out of this Arbitration Agreement shall have no effect on any previous, other, or future arbitration agreements you may enter into with Hang. As stated above, if you do not opt out of this Arbitration Agreement within the Opt-Out Period, then you will be bound to the terms and conditions of this Arbitration Agreement which shall supersede and replace in its entirety all previous versions of Hang’s arbitration agreements and class action provisions.
Section 4: Rules & Governing Law
Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures: You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, in the event of a Dispute, you and Hang each agree to send the other party a written Notice of Dispute (“Notice of Dispute” or “Notice”). A Notice of Dispute from you to Hang must be emailed to support@hang.com (“Notice Address”). Any Notice of Dispute must include (i) the claimant’s full legal name, complete mailing address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) any relevant facts regarding claimant’s use of the Site, including whether claimant has created an account with or receives any emails associated with the Site, and/or the date(s) of any purchase(s) made by claimant on the Site; and (iv) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute. Hang
will send any Notice of Dispute to you at the email address or mailing address it has for you, if any.
After receipt of a Notice of Dispute, the parties shall engage in a good faith effort to resolve the Dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the Notice of Dispute, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution.
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this subsection. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Hang have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, the parties agree that a court of competent jurisdiction may enjoin the filing or stay the prosecution of an arbitration. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.
If the parties cannot resolve the Dispute through the Informal Dispute Resolution Procedures above, you and Hang each agree that all Disputes shall be resolved exclusively through final and binding individual arbitration, rather than in court. The parties may agree to waive hearings and resolve Claims through submission of documents. Any arbitration hearing will be conducted remotely by telephone or video conference to the extent possible, but if the arbitrator determines, or the parties agree, that a hearing should be conducted in person, the arbitration hearing will take place as close to your residence as practicable, or another agreed upon locale, and shall be before one arbitrator.
All Disputes shall be submitted to National Arbitration and Mediation (“NAM”), www.namadr.com, for arbitration before one arbitrator. The arbitration will be administered by NAM in accordance with its rules and procedures, including any supplementary rules and fee schedules, then in effect (the “Rules”), except as modified by this Arbitration Agreement. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Rules. A form for initiating arbitration proceedings is available on NAM’s website at https://www.namadr.com/resources/rules-fees-forms. You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced above, and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented). The parties agree that submission of the certification shall be required for the claim to be deemed properly filed. For additional information on how to commence an arbitration proceeding, you can contact NAM at customerservice@namadr.com.
If NAM determines that 25 or more substantially similar arbitration demands presented by or with the assistance, coordination, or cooperation of the same law firm, group of law firms, cooperating law firms, or organization are allowed to be submitted for arbitration, NAM’s mass filing fee structure shall apply and the parties agree that the arbitrations will proceed in accordance with the batching process as follows: (i) NAM shall administer the arbitration demands in batches of at least 25 claims, with the discretion to create additional batches if NAM finds that they are necessary to facilitate the efficient resolution of demands; (ii) NAM shall provide for the resolution of each batch as a single consolidated arbitration with one procedural calendar and one hearing (if any) and one final award; and (iii) NAM shall apply a single initial filing fee and administrative fee per batch for each side with respect to the fees set forth in NAM’s fee schedule. You agree to cooperate in good faith to implement this batch approach to facilitate the efficient resolution of these Claims. All parties agree that arbitrations are of a “substantially similar nature” for purposes of this batching procedure for claims administered by NAM if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. This batching procedure for claims administered by NAM shall in no way be interpreted as authorizing class arbitrations of any kind. Hang reserves all rights and defenses as to each and any demand and claimant. If any court or arbitrator determines that this batching procedure for claims administered by NAM and the ADR Services Batching Procedure (see below) are both void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the Arbitration Agreement shall be deemed null and void in its entirety, and you and Hang shall be deemed not to have agreed to arbitrate Disputes.
If NAM notifies the parties in writing that it is not available to arbitrate any Claim, or if NAM is otherwise unable to arbitrate any Claim, that Claim shall be submitted to ADR Services, Inc. (“ADR Services”) for final and binding individual arbitration before one arbitrator. The arbitration will be administered by ADR Services in accordance with its rules and procedures, including any supplementary rules and fee schedules, then in effect (the “Rules”), except as modified by this Arbitration Agreement. ADR Services’ Rules are available at https://www.adrservices.com/services-2/arbitration-rules/. If there are 20 or more substantially similar Claims that are allowed to be submitted for arbitration but cannot be arbitrated by NAM, and are presented to ADR Services by or with the assistance, coordination, or cooperation of the same law firm, group of law firms, cooperating law firms, or organization, ADR Services shall (i) administer those Claims in at least 20 batches, with the discretion to create additional batches if ADR Services finds that they are necessary to facilitate the efficient resolution of demands; and (ii) apply a single initial filing fee and administrative fee per batch for each side with respect to the fees set forth in ADR Services’ then-current Mass Consumer Non-Employment Arbitration Fee Schedule. You agree to cooperate in good faith to implement this batch approach (the “ADR Services Batching Procedure”) to facilitate the efficient resolution of these Claims. This ADR Services Batching Procedure shall in no way be interpreted as authorizing class arbitrations of any kind. Hang reserves all rights and defenses as to each and any demand and claimant.
Notwithstanding any choice of law or other provision in these Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and any proceedings under it. It is the intent of the parties that the FAA and the Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and the Rules are found to not apply to any issue that arises under this Arbitration Agreement, then that issue shall be resolved under the laws of New York.
At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and Hang agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b) and any applicable state laws of similar import, including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under NAM or ADR Services’ Rules (as applicable), Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law.
These Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York.
Arbitrator’s Fees: You and we agree that arbitration should be cost-effective for all parties and that any party may engage with NAM, ADR Services (as applicable), and/or the arbitrator to address the apportionment of the arbitrator’s fees.
Confidentiality: The parties agree that the arbitrator is authorized to issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
Requirement of Individualized Relief: The parties agree that the arbitrator is authorized, upon either party’s request, to award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If any of the prohibitions on non-individualized declaratory or injunctive relief, class, representative, and private attorney general claims, or consolidation set forth under this Arbitration Agreement are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then, after exhaustion of all appeals, the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated.
You agree that any arbitrations between you and Hang will be subject to this Arbitration Agreement and not to any prior arbitration agreement you had with Hang, and, notwithstanding any provision in these Terms to the contrary, you agree that this Arbitration Agreement amends any prior arbitration agreement you had with Hang, including with respect to claims that arose before this or any prior arbitration agreement.
Section 5: Opt-Out of Future Changes to Arbitration Agreement: Notwithstanding any provision to the contrary, if Hang makes any future change to this Arbitration Agreement (other than a change to the Notice Address), you may reject any such change by sending Hang an email to support@hang.com within 30 days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) if applicable, the username or email address associated with any potential account with Hang; and (v) the specific change(s) to the Arbitration Agreement you wish to reject. It must include a statement, personally signed by you, that you wish to reject the change to the Arbitration Agreement. This is not an opt out of arbitration altogether.
Section 6: Severability & Survival: If any provision of this Arbitration Agreement, or a portion thereof, is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein. Notwithstanding the foregoing, as set forth in Section 4, if any court or arbitrator determines that the batching procedure for claims administered by NAM (set forth above) and the ADR Services Batching Procedure are both void or unenforceable for any reason or that an arbitration can proceed on a class basis, then, after exhaustion of all appeals, the Arbitration Agreement shall be deemed null and void in its entirety.
This Arbitration Agreement shall survive termination of these Terms. Except as provided in the opt-out provisions set forth in the Opt-Out of Future Changes to Arbitration Agreement section above, the terms and conditions of this Arbitration Agreement shall supersede and replace any and all previous arbitration and class action/jury waiver agreements you may have entered into with Hang.
MISCELLANEOUS
