Web & Mobile Application Terms of Use

PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY.  THEY SET FORTH YOUR LEGALLY BINDING AGREEMENT FOR ACCESS TO AND USE OF HYPERTHERM WEB AND MOBILE APPLICATIONS (EACH, AN “APP”).  YOU MUST AGREE TO THESE TERMS TO ACCESS AND USE THE APP. 

THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH HYPERTHERM OR WITH RESPECT TO YOUR USE OF THE APP, AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST HYPERTHERM IN A CLASS ACTION FORMAT.

Hypertherm, Inc. (“Hypertherm,” “we,” “us,” “our”) is part of the Hypertherm Associates family, a 100% employee-owned company composed of the industrial cutting technologies and solutions you know and trust -- plasma, waterjet, software, and more -- to help our customers succeed like never before. With a consistency of purpose, a drive to innovate, and a passion for customer success, Hypertherm Associates is leading the industrial cutting and shaping industry.

Among its products and solutions, Hypertherm offers the App, which permits users to view data from their connected products, review Hypertherm provided insights / recommendations about their products and data and interact with Hypertherm and their connected product data in a way that enhances value to the user’s business. 

These Terms constitute a written agreement between you and Hypertherm and they affect your legal rights and obligations.  Use of the App is also subject to our website Terms of Use (“Website Terms”), which supplement the Terms.  If there is a conflict between these Terms and the Website terms, these Terms control.  In addition, if you downloaded the App from the Apple App Store, the terms in section 25, “Additional Provisions if the App is Downloaded from the Apple App Store,” shall apply; and if there is a conflict between a term in section 25 and any other applicable term, the term in section 25 shall take priority.

By proceeding with the access to and use of the App, you agree to the Terms, as supplemented by the Website Terms, and consent to the App’s operation and collection of data.  By installing, accessing, or using the App, whether as a registered user or a non-registered user, you represent and warrant that (a) you have read, understood, and agreed to be bound by these Terms, (b) you acknowledge Hypertherm’s Privacy Notice, as amended from time to time, (c) you are over the age of 18, (d) you will comply with all applicable laws and regulations, and (e)you will not use the App for any illegal or unauthorized purpose.  If you do not agree with these Terms, do not install, access, or use the App.  These Terms are effective as of February 1, 2024.

1. Eligibility to Use the App

You must be over the age of 18 years old to register or use the App.  If you are under 18 years old, then you are not permitted to register for an Account or otherwise use the App or submit personal data or User Content (as defined below) to us.

2. Your Privacy 

Hypertherm maintains a Privacy Notice that describes how we collect, use, share, store, and otherwise process personal data that is submitted to us through the App or that we otherwise obtain or collect through the App.

3. Your App Account 

In order to access or use certain features of the App, you must activate and maintain a personal account through the App or other applications offered by Hypertherm (“Account”).  You may activate your Account by completing the registration process.  How we collect and use your personal data is described in our Privacy Notice.

You agree that:

(i) You will be required to select a unique username and password.  You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive.  We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion;

(ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and to maintain and update such information, continuously and promptly, to keep your Account information accurate, current, and complete;

(iii) You are solely responsible for all activities that occur under your Account, password, and username – whether or not you authorized the activity;

(iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device(s) (as defined below) so that others may not access any password protected portion of the App using your name, username, or password;

(v) You will immediately notify us of any unauthorized use of your Account, password, or username, or any other breach of security; and

(vi) You will not sell, transfer, or assign your Account or any rights in or to your Account.

We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. 

If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, the Website Terms, or any applicable law, then we may suspend or terminate your Account.  We also reserve the more general and broad right to terminate your Account or suspend or otherwise deny you access to it or its benefits -- all in our sole discretion, for any reason, and without advance notice or liability.

4. App Content and Intellectual Property Ownership 

Content Generally.  The App contains a variety of (i) materials and other items relating to Hypertherm and its products and solutions, and similar items from our end users, licensors and other third parties, including all data, metadata, metrics, information, layout, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the App, and the compilation, assembly, and arrangement of the materials of the App and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Hypertherm (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “App Content”). 

The App provides users with access to and use of App Content aggregated from multiple sources by, on behalf of, or as licensed by Hypertherm, including User Content and Third Party Content, each as defined below.

THE APP CONTENT MAY NOT BE RESOLD, DISTRIBUTED, OR COMPILED BY YOU FOR ANY REASON, INCLUDING OFFERING OR PROVIDING ANY PRODUCTS, SOLUTIONS, OR FUNCTIONALITY SIMILAR TO THAT OFFERED IN THE APP OR OTHERWISE BY HYPERTHERM.

The nature of the App Content and the collection processes limit our ability to independently verify and/or validate any of the App Content, and all such App Content is subject to change at any time without notice. We and our data providers do not warrant the comprehensiveness, completeness, accuracy or adequacy of the App Content for any purpose. We, and our directors, employees, contractors, agents, and App Content providers disclaim all warranties, expressed or implied, as to any matter whatsoever and shall not be responsible for any loss or damage that may directly or indirectly arise as the result of the use of the App Content accessed or used.

Ownership.  The App (including past, present, and future versions), including the App Content and associated products and solutions, is owned or controlled by Hypertherm and our licensors and certain other third parties.  All right, title, and interest in and to the App, the App Content, and our productions and solutions available or described through the App is the property of Hypertherm or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.  Hypertherm owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the App Content and the App.

Limited License.  Subject to your strict compliance with these Terms and any applicable Website Terms, Hypertherm grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (a) access and use the App and to (b) download, display, view, use, and/or print the App Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”).  Notwithstanding the foregoing, you may share any App Content you download from the App with other individuals within your organization, as permitted by applicable law, in connection with your organization’s use of Hypertherm’s productions and solutions.  The foregoing limited license (a) does not give you any ownership of, or any other intellectual property interest in, any App Content or in the App and (b) may be immediately suspended or terminated for any reason, in Hypertherm’s sole discretion, and without advance notice or liability.  No other right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise under common law or in equity.  All rights not expressly granted in this license are reserved by Hypertherm and its licensors and other third parties.

Rights of Others.  In using the App, you must respect the intellectual property and other rights of Hypertherm and others.  Your unauthorized use of App Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.

5. User Content

Definition of User Content; Submission of User Content; Interactive Areas.  Hypertherm may now or in the future offer you as a user the opportunity to post, upload, display, publish, distribute, transmit, broadcast or otherwise make available on or submit through the App (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, responses, information, content, ratings, reviews, data, questions, suggestions, or Hypertherm product or solution configurations (collectively, “User Content”).  Hypertherm may allow you to do this through forums, communities, direct messaging, contact us tools, e-mail, and other communications functionality (“Interactive Areas”).  Subject to the license you grant in these Terms below, you retain ownership in your User Content and so you remain ultimately responsible for it (legally or otherwise).

Non-Confidentiality of Your User Content.  Except as otherwise described in our Privacy Notice or any applicable Website Terms, you agree that by submitting User Content to the App (a) your User Content will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned, and (b) Hypertherm does not assume any obligation of any kind to you or any third party with respect to your User Content.  Upon our request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any applicable Website Terms.  You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User Content may not be secure, and you will consider this before submitting any User Content and do so at your own risk. 

License to Hypertherm of Your User Content.  Except as otherwise described in any applicable Website Terms which expressly govern the submission of specific User Content, you grant to us the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.  In order to further effect the rights and license that you grant to us to your User Content, you also hereby grant to us, and agree to grant to us, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User Content on the App without any obligation or remuneration to you.  Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you.  To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights.  You understand that you will not receive any fees, sums, consideration, or remuneration for any of the license rights granted in this paragraph.

Hypertherm’s Exclusive Right to Manage the App.  We may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User Content, and we may, in our sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User Content without notice or any liability to you or any third party in connection with our operation of User Content venues in an appropriate manner.  Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Website Terms.  Such User Content submitted by you or others need not be maintained on the App by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User Content on the App or elsewhere. 

Representations and Warranties Related to Your User Content.  Each time you submit any User Content, you represent and warrant that you are at least 18 years old and that: (a) you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to submit the User Content and grant us the rights to it that you are granting by these Terms and any applicable Website Terms, all without any obligation on us to obtain consent of any third party and without creating any obligation or liability for us; (b) the User Content is accurate, and  is not fraudulent, deceptive, inaccurate, misleading, or misrepresentative of your identity or affiliation with a person or company; (c) the User Content does not and, as to our permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User Content will not violate these Terms or any applicable Website Terms, or cause injury or harm to any person. You may not submit or post any User Content that depicts or includes any personal data of a minor unless you are the parent or legal guardian of such person.

Enforcement.  We have no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at our cost and expense, to which you hereby consent and irrevocably appoint us as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).

Your Feedback and Ideas Regarding the App, App Content, and Hypertherm’s Products and Solutions.  In your communications with us, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to our products and solutions, including but not limited to the App and the App Content (collectively, “Unsolicited Ideas and Materials”).  Any Unsolicited Ideas and Materials you submit to us regarding Hypertherm’s products and solutions are licensed to us as set forth in the following paragraph.  In addition, we retain all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials.  Our receipt of your Unsolicited Ideas and Materials is not an admission by us of their novelty, priority, or originality, and it does not impair our right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

License to Hypertherm of Unsolicited Ideas and Materials.  You grant to Hypertherm the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Unsolicited Ideas and Materials (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.  In order to further effect the rights and license that you grant to us to your Unsolicited Ideas and Materials, you also hereby grant to us, and agree to grant to us, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any Unsolicited Ideas and Materials, without any obligation or remuneration to you.  Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Unsolicited Ideas and Materials, even if it is altered or changed in a manner not agreeable to you.  To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights.  You understand that you will not receive any fees, sums, consideration, or remuneration for any of the license rights granted in this paragraph.

6. Third-Party Content

You acknowledge that you may receive access through the App-to-App Content that originates from a source other than Hypertherm (“Third-Party Content”).  This Third-Party Content may be subject to additional terms and conditions imposed by the owner of such Third-Party Content.

If a contributor of Third-Party Content (“Third-Party Contributor”) ceases to make its Third-Party Content available to Hypertherm or requires Hypertherm to suspend or terminate the provision of all or any part of its Third-Party Content to you, then Hypertherm may suspend or terminate that part of the App which contains such Third-Party Content, immediately without notice or further obligation to you.

7. App Use Restrictions 

You agree that you will not:

  1. engage in any activities through or in connection with the App that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Hypertherm;

  2. use the App in violation of any applicable law or regulation;

  3. reverse engineer, decompile, disassemble, reverse assemble, or modify any App source or object code or any software or other products or solutions accessible through any portion of the App or from Hypertherm;

  4. engage in any activity that interferes with a user’s access to the App or the proper operation of the App, or otherwise causes harm to the Hypertherm or other users of the App;

  5. interfere with or circumvent any security feature of the App or any feature that restricts or enforces, or seeks to restrict or enforce, limitations on use of or access to the App, the App Content, or any product or solution offered by Hypertherm;

  6. attempt to gain unauthorized access to App, other computer systems or networks connected to the App, through password mining or any other means; or

  7. otherwise violate these Terms or any applicable Website Terms.

8. Content Use Restrictions

You also agree that, in using the App:

  1. you will not monitor, gather, copy, or distribute the App Content by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind;

  2. you will not frame or utilize framing techniques to enclose any such App Content (including any images, text, or page layout);

  3. you will keep intact all Trademark, copyright, and other intellectual property notices contained in such App Content;

  4. you will not use such App Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands;

  5. you will not make any modifications to such App Content, subject to the limited license for use of App Content set forth elsewhere herein;

  6. you will not sell, lease, rent, exchange, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such App Content in any way for any purpose except as specifically permitted by these Terms or with the prior written consent of an officer of Hypertherm; and

  7. you will not insert any code or product to manipulate such App Content in any way that adversely affects any user experience.

 9. Warranty Disclaimer

YOU UNDERSTAND THAT HYPERTHERM DOES NOT PROVIDE LEGAL, FINANCIAL, MEDICAL OR OTHER PROFESSIONAL ADVICE. THE INFORMATION, MATERIALS AND OPINIONS (IF ANY) CONTAINED IN THE APP CONTENT AND THROUGH APP ARE FOR GENERAL INFORMATION PURPOSES ONLY, ARE NOT INTENDED TO CONSTITUTE LEGAL, FINANCIAL, MEDICAL OR OTHER PROFESSIONAL ADVICE, AND SHOULD NOT BE RELIED ON OR TREATED AS A SUBSTITUTE FOR SPECIFIC ADVICE RELEVANT TO PARTICULAR CIRCUMSTANCES. NONE OF HYPERTHERM, ITS AFFILIATES OR ANY OF ITS THIRD-PARTY CONTRIBUTORS SHALL BE LIABLE FOR ANY LOSS THAT MAY ARISE FROM ANY RELIANCE BY YOU, OR ANY THIRD PARTIES, ON THE CONTENT OR OTHER MATERIALS CONTAINED IN THE APP CONTENT OR THE APP.

WE DO NOT WARRANT THE COMPLETENESS OR ACCURACY OF THE APP CONTENT OR THE APP; NOR DO WE COMMIT TO ENSURING THAT THE APP REMAINS AVAILABLE OR THAT THE CONTENT IS KEPT UP-TO-DATE.

USE OF THE APP IS AT YOUR OWN RISK. THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  HYPERTHERM AND ITS SUPPLIERS, VENDORS AND CONTRACTORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE APP AND THE APP CONTENT.

HYPERTHERM AND ITS SUPPLIERS, VENDORS AND CONTRACTORS MAKE NO WARRANTY THAT (i) THE APP CONTENT OR APP WILL MEET YOUR REQUIREMENTS; (ii) THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THAT THERE WILL BE NO ERROR SO IN THE APP OR APP CONTENT, OR (iv) THAT HYPERTHERM WILL FIX ANY ERRORS. ANY CONTENT OR MATERIALS OBTAINED THROUGH USE OF THE APP ARE OBTAINED AT YOUR OWN DISCRETION AND RISK AND HYPERTHERM SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE CAUSED TO YOUR COMPUTER OR DATA OR FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR OTHER DESTRUCTIVE CODE RESULTING FROM USE OF THE APP OR ANY APP CONTENT.

SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE.

10. Changes to Terms and Additional Terms

Hypertherm may change these Terms at any time in our discretion without any notice to you.

AS THE APP EVOLVES, THE TERMS UNDER WHICH WE OFFER THE APP MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE APP UNDER THE TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED.  ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE APP YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM IN THE APP (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE APP AFTER SUCH NOTICE CONSTITUTES YOUR AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. 

Therefore, you should review the posted Terms each time you use the App (at least prior to each transaction or submission).  The Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you.  However, the Terms (and any applicable Additional Terms) that applied when you previously used the App will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed.  You should frequently check the home page, your App messages, and the e-mail you associated with your Account for notices, all of which you agree are reasonable manners of providing you notice.  You can reject any new or revised Terms by discontinuing use of the App.

11. Links to Third-Party Sites

The App may contain links to other third-party websites or services that Hypertherm does not own or control. Hypertherm is not responsible for any of these other websites or services and any links to these other websites or services should not be interpreted as an endorsement of any company, content, or products. We are not responsible to you for any aspect of these other websites or services, including their content and privacy policies.

12. Dispute Resolution

Certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.  You and Hypertherm agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act. 

First – Try to Resolve Disputes and Excluded Disputes

If any controversy, dispute, allegation, or claim arises out of or relates to the App, App Content, or these Terms whether heretofore or hereafter arising (collectively, a “Dispute”), or to any of Hypertherm’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes injunctive relief), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it.  Our notice to you will be sent to you based on the most recent contact information that you provide us.  But if no such contact information exists or if such information is not current, then we have no notice obligation under this Section.  Your notice to us must be sent via email to Legal@Hypertherm.com.  For a period of sixty days from the date of receipt of notice from the other party, you and Hypertherm will attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or us to resolve the Dispute or Excluded Dispute on terms with respect to which you and Hypertherm, in each of their sole discretion, are not comfortable.

Binding Arbitration

If a Dispute cannot be resolved as set forth above (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND HYPERTHERM (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT—INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION.  Such arbitration shall take place in Concord, New Hampshire under the auspices of AAA’s or JAMS’s offices in Boston, Massachusetts (as the case may be) and you agree to the jurisdiction of the United States and the State of New Hampshire.  You agree to the jurisdiction of the United States, the State of New Hampshire, and any U.S. state or federal court located in Grafton or Merrimack County, New Hampshire.

The Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Hypertherm and you regarding these Terms and the App, including the “No Class Action Matters” paragraph below.  BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.  Hypertherm and you agree, however, that the applicable state, federal or provincial law, as contemplated below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Hypertherm regarding these Terms and Conditions and the App, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.  Notwithstanding the foregoing, if you are an individual who purchases or leases goods or services, or contracts to purchase or lease goods or services, intended primarily for personal, family or household use (a “Consumer”), you may litigate any Dispute in small claims court, in the county or other similar political subdivision in which you reside, if the Dispute meets all requirements to be heard in the small claims court.  If you initiate a claim in small claims court, you are responsible for all court costs and fees.

Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA.  If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by JAMS using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Hypertherm consent to in writing.  If an in-person arbitration hearing is required and you are a U.S. resident and a Consumer, then it will be conducted in your county of residence; otherwise, all hearings will occur in Concord, New Hampshire.  You and Hypertherm will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if you are a Consumer and your claim is $75,000 or less, Hypertherm may pay all of those specified fees and costs, including those allocated to you. Hypertherm does not agree to bear any other costs.  The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim.  All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide.  This arbitration provision shall survive termination of these Terms or the App.  You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and https://www.adr.org and JAMS: 800.352.5267 and https://www.jamsadr.com.

Limited Time to File Claims

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU WANT OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN THIS SECTION) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.  Commencing means, as applicable: (a) by delivery of written notice as set forth above; (b) filing for arbitration as set forth above; or (c) filing an action in a U.S. federal or state court identified in the “Jurisdictional Issues; Choice of Non-Arbitral Forum” paragraph herein. 

Injunctive Relief 

The foregoing provisions of this Section will not apply to any legal action taken by Hypertherm to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the App, App Content, and/or Hypertherm’s intellectual property rights (including such Hypertherm may claim that may be in dispute), Hypertherm’s operations, and/or Hypertherm’s products or solutions. 

No Class Action Matters

YOU AND HYPERTHERM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION.  Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.  There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated.  But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then the agreement to arbitrate will not apply and the Dispute must be brought in in a jurisdiction identified in the “Jurisdictional Issues; Choice of Non-Arbitral Forum” paragraph herein, subject to the exception for small claims actions identified herein.  Notwithstanding any other provision of this Section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” paragraph), are to be decided only by a court of competent jurisdiction, and not by the arbitrator.  The arbitrator does not have the power to vary these class action waiver provisions. 

Jurisdictional Issues; Choice of Non-Arbitral Forum

Any Dispute or Excluded Dispute that is not required to be arbitrated as set forth above or to compel arbitration may only be instituted in a state or federal court located in Grafton County, New Hampshire; provided that with respect to the enforcement of any arbitration decision or award conducted in Concord, New Hampshire as set out the “Binding Arbitration” paragraph herein that was not previously compelled to arbitration by a court located in Grafton County, New Hampshire may also be instituted or brought in a state or federal court located in Merrimack County, New Hampshire.  Accordingly, you and Hypertherm consent to the exclusive personal jurisdiction and venue of such courts for such matters, and waive any defenses to personal jurisdiction, venue, process, service of process, or convenience of the forum (including without limitation forum non conveniens and similar doctrines).

Consumer Small Claims Matters Are Excluded from Arbitration Requirement 

Notwithstanding the foregoing, either you or Hypertherm may bring qualifying claim of Disputes that are by or against you solely in your capacity as a Consumer (but not Excluded Disputes) in small claims court of competent jurisdiction.

Arbitration Opt-Out; Your Right to Opt-Out of Arbitration

YOU MAY OPT OUT OF THIS ARBITRATION PROVISION IN YOUR CAPACITY AS A CONSUMER BY CALLING US AT (844) 916-1304, OR WRITING US AT:

HYPERTHERM, INC.
ATTENTION:  LEGAL
21 GREAT HOLLOW ROAD
PO BOX 5010
HANOVER, NH 03755

AND STATING THE FOLLOWING IN YOUR NOTICE: (I) YOUR NAME, (II) YOUR ADDRESS, (III) YOUR PHONE NUMBER, AND (IV) THAT YOU ARE EXERCISING YOUR RIGHT TO OPT OUT OF ARBITRATION UNDER THESE TERMS (AN “OPT-OUT NOTICE”). YOUR OPT-OUT NOTICE MUST BE RECEIVED WITHIN NINETY DAYS AFTER YOU INSTALL THE APP OR CREATE AN ACCOUNT.  IF YOUR OPT-OPT NOTICE COMPLIES WITH THESE REQUIREMENTS, THIS ARBITRATION PROVISION WILL NOT APPLY TO YOU IN YOUR PERSONAL CAPACITY, EXCEPT FOR ANY CLAIMS SUBJECT TO PENDING LITIGATION OR ARBITRATION AT THE TIME YOU SEND YOUR REJECTION NOTICE. REJECTION OF THE ARBITRATION PROVISION WILL NOT AFFECT YOUR OTHER RIGHTS OR RESPONSIBILITIES UNDER THIS SECTION OF THESE TERMS.  YOU MAY NOT OPT OUT OF THE ARBITRATION PROVISION ON BEHALF OF YOUR ORGANIZATION OR EMPLOYER OR IN ANY OTHER CAPACITY.

13. Compliance with Legal Requests 

Without limiting the foregoing, we have the right to fully cooperate with any valid legal process from a law enforcement authority that requests or directs us to disclose customer data or other information in the App. YOU WAIVE AND HOLD HARMLESS US AND OUR AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY US OR ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INQUIRY AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER US, SUCH PARTIES, OR LAW ENFORCEMENT AUTHORITIES.

14. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, HYPERTHERM AND ITS OFFICERS, EMPLOYEES, SUPPLIERS, VENDORS AND CONTRACTORS HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, REVENUE OR PROFIT) ARISING FROM OR RELATED TO YOUR USE OF THE APP OR ANY APP CONTENT, INCLUDING ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR ANY DAMAGES OR INJURY CAUSED BY ERROR, INACCURACY, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, DELAY IN OPERATION OR TRANSMISSION, TELECOMMUNICATIONS FAILURE OR COMPUTER VIRUS OR OTHER PROBLEM, THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE APP OR APP CONTENT, WHETHER IN AN ACTION ALLEGING BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY SERVICE OR ASSOCIATED CONTENT. EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

CERTAIN U.S. STATES DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO CERTAINOF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, HYPERTHERM’S LIABILITY AND THE LIABILITY OF EACH OF ITS OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, ADVERTISERS, LICENSORS, SUPPLIERS, SERVICE PROVIDERS AND OTHER CONTRACTORS TO YOU OR ANY THIRD PARTIES UNDER ANY CIRCUMSTANCE IS LIMITED TO THE TOTAL AMOUNT YOU PAID FOR APP-COMPATIBLE HYPERTHERM PRODUCTS DURING THE TWELVE MONTHS PRECEDING THE CLAIM.

15. Applicable Law

These Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New Hampshire, without regard to its conflicts of law provisions.

16. Indemnity

You hereby agree to defend, indemnify, and hold harmless Hypertherm, its parents, subsidiaries, affiliates, suppliers, vendors and contractors, and the officers, employees and agents of each of the foregoing parties, from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any indemnified party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User Content; (ii) your use of the App and your activities in connection with the App; (iii) your breach or alleged breach of these Terms or any applicable Website Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the App or Hypertherm’s products or solutions or your activities in connection with the App or Hypertherm’s products or solutions; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Hypertherm’s use of the information that you submit to us (including your User Content) (all of the foregoing, “Claims and Losses”).  Hypertherm reserves the right to participate in the defense of, or assume the exclusive defense and control of, any Claims and Losses.  You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of Hypertherm.

17. Operation and Availability of the App; International Issues

Hypertherm controls, operates, and provides the App and App Content from the United States, and Hypertherm makes no representation that the App or App Content is appropriate or available for use outside the United States.  If you use the App from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.  The App may describe Hypertherm’s products and solutions that are available only in the United States (or only parts of it) and are not available worldwide.  We reserve the right to limit the availability of the App and/or the provision of any content, program, product, service, or other feature described or available in the App to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.

The App may be subject to export laws and regulations of the United States and other jurisdictions. You hereby represent that you are not named on any U.S. government denied-party list. You shall not access or use the App in a U.S.-embargoed country or in violation of any U.S. export law or regulations.

18. Severability; Interpretation

If any provision of these Terms, or any applicable Website Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the applicable Website Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Website Terms (which will remain in full force and effect).  To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.  Wherever the word “including” is used in these Terms or the Website Terms, the word will be deemed to mean “including, without limitation.”  The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.  No Hypertherm consent or approval may be deemed to have been granted by Hypertherm without being in writing and signed by an officer of Hypertherm. 

19. Communications

When you communicate with us electronically, such as via e-mail, mobile app messages, and text message, you consent to receive communications from us electronically.  Please note that we are not obligated to respond to inquiries that we receive.  You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. 

20. Investigations; Cooperation with Law Enforcement; Termination; Survival

Hypertherm reserves the right, without any limitation, to: (i) investigate any suspected breaches of its App security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any applicable Website Terms, (iii) investigate any information obtained by Hypertherm in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any applicable Website Terms.

Hypertherm may discontinue the App, in whole or in part, or suspend or terminate your access to it, in whole or in part, including any Account, or App Content, at any time, without notice, for any reason and without any obligation to you or any third party.  

Any termination or suspension will not affect your obligations to Hypertherm under these Terms or any Additional Terms.  Upon suspension or termination of your access to the App, or upon notice from Hypertherm, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the App.

The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Hypertherm in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

21. Assignment

Hypertherm may assign its rights and obligations under these Terms and any Website Terms, in whole or in part, to any party at any time without any notice.  These Terms and any Website Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Hypertherm. 

22. No Waiver 

Except as expressly set forth in these Terms or the Website Terms, (i) no failure or delay by you or Hypertherm in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver of any term of these Terms or any Website Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. 

23. Connectivity

You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the App and you will be responsible for all charges related to them.  You understand and agree that the App may need access to certain sensors or technologies in your Device, such as Bluetooth, to be able to offer certain functionality and that if you decline to provide the App with access to those sensors or technologies, the App may not be able to provide you with certain functionality.  We disclaim all liability as to connectivity or functionality that is not provided specifically by us.

24. Our Contact Information

If you have questions, complaints, or claims with respect to the App, you may contact us at:

21 Great Hollow Road
Hanover, NH 03755
United States

Email: Legal@Hypertherm.com

25. Additional Provisions if the App is Downloaded from the Apple App Store

If the App is downloaded from an Apple App Store, the following additional terms shall apply to your use of the App; for purposes of this section, “Apple” refers to Apple Inc. and its subsidiaries:

Acknowledgement.  These Terms are concluded between You and Us only, and not with Apple, and we, not Apple, are solely responsible for the App and the content thereof.

Scope of License.  Your license to use the App is a non-transferable license to use the App on any Apple-branded Products that the You own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the App may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.

Maintenance and Support.  You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

Warranty.  In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the App to you.  To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.

Product Claims.  Hypertherm, not Apple, is responsible for addressing any claims of You or any third party relating to the App or your possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. Any limits of liability contained in these Terms are applicable ot the maximum extent permitted by applicable law.

Intellectual Property Rights.  In the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

Restrictions on Use in Certain Countries.  You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

Third-Party Terms of Agreement.  You must comply with any applicable third-party terms of agreement while using the App.

Apple as Third-Party Beneficiary. Apple is a third-party beneficiary of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.