Last Revised: March 18, 2025
1. INTRODUCTION
These Digital Marketing General Terms and Conditions (the “Terms” or “General Terms of Service”) govern the use of all digital marketing services (the “Services”) provided by The N2 Company d/b/a Hyport (“Hyport” “we” “us” or “our”). By purchasing or using the Services, you agree to be bound by these Terms. These Terms, together with any applicable Order Forms and Product Terms (collectively, the “Agreement”), constitute the entire agreement between you and Hyport regarding the Services and supersede all prior agreements or understandings, whether written or oral. These Terms incorporate any applicable product-specific terms (“Product Terms”), which govern individual service offerings such as Social Reach, Email Connect, Web Engage, and Reputation Sheild. We reserve the right to modify these Terms at any time, with changes effective upon posting online. Continued use of the Services after such changes or modifications constitutes acceptance of the updated terms. In the event of a conflict between these Terms and the Product-Specific Terms, the latter shall control.
2. SERVICES
2.1 Overview of Services
Hyport offers a managed solution that combines services with third-party platforms (each a “Service Provider”) to deliver digital marketing campaigns. Our Services include:
The Tracking Services Terms and Conditions are applicable to any Services that use tracking technology, such as phone or email tracking, and are also incorporated herein by reference.
Your Order Form lists the Services you have purchased.
2.2 Third-Party Providers and Sites
Hyport uses Service Providers to facilitate and optimize marketing campaigns and the Services may integrate with various third-party platforms, websites, software, and services (e.g., Facebook, Google) (“Third Party Sites”). By using our Services, you acknowledge that:
2.3 Data Ownership, Use, and Service Analytics
3. FEES AND PAYMENT
3.1 Fees and Payment Terms.
3.2 Late Payments and Suspension.
4. CLIENT OBLIGATIONS AND COMPLIANCE
In addition to complying with applicable Third Party Terms, Client is solely responsible for ensuring its use of the Services complies with all applicable laws and regulations, including but not limited to laws governing email marketing, telemarketing, and data protection. Hyport does not provide legal advice or ensure compliance with regulatory
requirements, and Client acknowledges that compliance with such laws remains its sole responsibility.
5. SERVICE SUSPENSION AND TERMINATION
Hyport may suspend or terminate the Services under the following circumstances:
6. INTELLECTUAL PROPERTY
6.1 Ownership; License; Retained Rights.
Hyport does not grant ownership of, nor does it control, any Third-Party Sites or technologies used to deliver the Services.
(a) Ownership of Services & Methods. Hyport retains all right, title, and interest in and to its proprietary methodologies, strategies, processes, know-how, and any non-client-specific templates or materials used to perform the Services, including any modifications, enhancements, feedback, or derivative works related thereto.
(b) Ownership of Deliverables. To the extent the Services result in custom-created content or deliverables specifically prepared for Client (e.g., email marketing materials, organic social media content), Client shall own such deliverables upon full payment of all fees due. However, Hyport retains a limited, non-exclusive right to use such deliverables for its internal purposes, including portfolio demonstrations, marketing case studies, or legal compliance, unless otherwise agreed in writing.
(c) License Grant. Subject to full payment of fees, Hyport grants Client a non-exclusive, revocable, non-transferable license to use any deliverables created as part of the Services for its intended marketing purposes. This license does not extend to third-party technology, tools, or platforms used in delivering the Services.
(d) Client Feedback. Any feedback, suggestions, or recommendations provided by Client regarding the Services shall be deemed non-confidential, and Hyport shall have the unrestricted right to use such feedback without obligation to compensate Client.
6.2. License to Client Content. You hereby grant to Hyport and any applicable Service Provider a non-exclusive, royalty-free, worldwide license to use, copy, modify (as permitted herein), publicly perform, display, broadcast and transmit during the term of this Agreement any text, images, logos, trademarks, service marks, promotional materials, product or service information, comments, reviews, photos, audio and video clips and other information (“Client Content”) you provide in connection with the Services. Except as set forth in any Product Terms and this Agreement, title to and ownership of all intellectual property rights of all Client Content will remain with you or your third-party licensors. Hyport may, during the term of this Agreement and thereafter, include your name (including any trade name, trademark, service mark and logo) on Hyport’s client list, and in its marketing materials.
6.3. Creative Services. If you request Hyport provide creative services, you will remain fully responsible for any content you provide to Hyport. With respect to any content created by Hyport, as between you and Hyport, Hyport will retain ownership of the design elements of such content, excluding any of your trade names, trademarks,
service marks or logos or other proprietary elements that may be included within such content, but that predate the creation of the content. Hyport does not assume any obligation to perform a legal review of your digital marketing, and you remain solely responsible for legal and regulatory compliance and for the content of the Services.
6.4 Privacy and Security. The Services will be provided using industry-standard security measures to protect Client data and pursuant to our Privacy Policy. In the event of a security breach, Hyport or Service Provider will notify the Client and take remedial actions.
6.5 Confidential Information. Both parties agree to protect each other’s confidential information with reasonable care and to use it only as necessary to fulfill obligations under these terms.
6.6. Use of Artificial Intelligence. Some Services may use artificial intelligence. By agreeing to these Terms, you agree to the use of artificial intelligence, where applicable. The Services will process all data through artificial intelligence models according to the Service Provider’s privacy and data security policies.
7. WARRANTY; LIMITATIONS OF LIABILITY; INDEMNITY
7.1 Hyport Warranty. Hyport warrants that Services will be performed in a professional manner and that it will comply with all applicable laws in providing the Services.
7.2 Client’s Warranty. Client represents and warrants that:
7.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING. HYPORT DOES NOT WARRANT, OR OTHERWISE PROMISE, THAT THE USE OF ITS SERVICES WILL IMPROVE CLIENT’S BUSINESS PERFORMANCE OR ANY OTHER BUSINESS
BENEFIT. HYPORT ALSO MAKES NO GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY OF THE SERVICES, AND SHALL NOT BE LIABLE FOR ANY INTERRUPTION, DELAY, OR FAILURE TO PROVIDE THE SERVICES DUE TO CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL.
7.4 Limitations of Liability.
7.4.1 No Special Damages. EXCEPT FOR CLAIMS ARISING OUT OF WILLFUL MISCONDUCT, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF GOODWILL,
BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, OF ANY PARTY, INCLUDING THIRD PARTIES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE FOREGOING.
7.4.2 Liability Cap. EXCEPT FOR CLAIMS ARISING OUT OF A PARTY’S WILLFUL MISCONDUCT, INDEMNITY OBLIGATIONS, DATA BREACHES, OR CLIENT’S OBLIGATION TO PAY FEES UNDER THESE TERMS, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY CLIENT UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
7.4.3 Enhanced Liability Cap for Data Breaches, Indemnity, and Willful Misconduct. Notwithstanding Section 7.4.2, Hyport’s maximum liability for any claims relating to data breaches, indemnification, or willful misconduct shall in no event exceed two times the fees paid or payable by Client under these Terms during the twelve (12) month period immediately preceding the date on which the claim arose.
7.4.4 Cumulative Liability. The caps provided in this Section are cumulative for all claims (not per incident) and apply collectively to each Client and its affiliates (not per affiliate).
7.4.5 Force Majeure & Service Interruptions. Neither party shall be liable for any failure or delay in its performance under this Agreement due to events beyond its reasonable control, including but not limited to acts of God, war, strikes, governmental actions, telecommunications or network failures, power failures, third-party service disruptions, cyberattacks, or platform outages. If the Services are interrupted or delayed, Hyport’s sole obligation shall be to restore such Services as soon as practicable.
7.4.6 Time Limitation for Claims. Except where a longer period is mandated by applicable law, any claim, action, or proceeding that the Client may have arising out of or relating to the Services or the Agreement must be brought within twelve (12) months of the date on which the claim arose, or such claim will be deemed waived and permanently barred. This clause does not affect any non-waivable statutory rights the Client may have under the applicable law.
7.5 Indemnification.
7.5.1 Client’s Indemnity. Client shall indemnify, defend, and hold harmless Hyport, its officers, directors, shareholders, agents, lawyers, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising out of or relating to any third-party claim alleging that Client’s website, data, or use of the Services violates any applicable law, rule, regulation, or third-party rights.
7.5.2 Hyport’s Indemnity. Hyport shall indemnify, defend, and hold harmless Client, its officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) resulting from any third-party claim that the Services, as provided by Hyport to Client within the scope of this Agreement, infringe any intellectual property rights.
7.5.3 Indemnification Conditions. The indemnification obligations contained in these Terms are conditioned upon: (a) prompt notice by the indemnitee to the indemnitor of any claim, action, or demand for which indemnity is claimed; (b) sole control of the defense and settlement by the indemnitor; and (c) reasonable cooperation by the
indemnitee in the defense as the indemnitor may request.
7.6 Proportional Liability. Each indemnitor’s liability to pay or reimburse any indemnified claim is limited to the extent of the indemnitor’s proportional contribution. Neither party has any liability to the extent that any losses in conjunction with indemnified claims are attributable to acts or omissions of the other party or its indemnities.
8. TERM AND TERMINATION
8.1 Term. These Terms commence on the earlier of (i) the effective date of the first Order Form, (ii) your first use of the Services, or (iii) your first payment for the Services. Once effective, these Terms shall remain in effect as long as any Order Form referring to these Terms remains in effect or you continue using the Services. Except as
specifically set forth to the contrary in these Terms, all payment obligations under any and all Order Forms are non-cancellable and all payments made are non-refundable.
8.1 Termination for Convenience. Client may terminate Services for convenience subject to the minimum service periods and notice requirements outlined below:
Eligibility for Termination: A Client must be in good standing under this Agreement at the time of providing notice of termination and through the effective termination date. A Client is not eligible to terminate for convenience if any amounts are past due. If a Client provides notice of termination while past due, such notice shall be deemed ineffective unless and until the Client brings its account into good standing.
8.2 Termination for Breach
Either party may terminate the Agreement or an applicable Order Form upon thirty (30) days’ written notice if the other party materially breaches the Agreement and fails to cure such breach within such thirty (30) day period.
8.3 Termination by Hyport
Hyport may suspend or terminate the Services immediately upon written notice to Client if:
(a) Client fails to make any undisputed payment when due and does not cure such failure within ten (10) days of notice;
(b) Client’s use of the Services violates any applicable law, regulation, or Third-Party Terms; or
(c) A Service Provider or Third-Party Site modifies its services in a manner that prevents Hyport from delivering the Services.
8.4 Effect of Termination. Upon termination of the Agreement or Services for any reason:
(a) All applicable Services will cease, and any tracking numbers, emails, or forwarding mechanisms provided as part of the Services will be deactivated.
(b) Any outstanding fees for Services provided prior to termination shall remain due and payable.
(c) If termination occurs prior to the end of a minimum service period, Client remains responsible for all charges that would have been due for the remainder of the applicable minimum service period.
(d) Hyport shall have no obligation to maintain, store, or provide access to any data, reports, call recordings, analytics, tracking information, or other materials generated, collected, or stored in connection with the Services following termination. Client is solely responsible for exporting or otherwise securing any necessary data prior to the termination date.
9. APPLICABLE LAW AND DISPUTE RESOLUTION
9.1 Independent Contractors. In performing under the Agreement, each party is acting as an independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
9.2 Governing Law and Dispute Resolution.
9.2.1 Governing Law. This Agreement and any disputes arising from it shall be governed by Texas law, excluding its choice of law principles. Client agrees that these provisions ensure uniform interpretation and mutually beneficial consistency.
9.2.2 Exclusive Dispute Resolution Mechanism. Except for the claims listed in Section 9.2.6, all disputes, claims, or controversies arising out of or related to this Agreement (each, a “Dispute”) shall be resolved solely through the procedures in Sections 9.2.3 through 9.2.7. Informal negotiation under Section 9.2.3 is a prerequisite to arbitration.
9.2.3 Negotiation. The parties shall negotiate in good faith to resolve any Dispute. If unresolved within 60 days of written notice, either party may initiate arbitration.
9.2.4 Arbitration.
(a) Any Dispute shall be resolved through binding arbitration under the AAA Commercial Rules before a single arbitrator with commercial contract experience. The arbitrator shall have no prior business or professional relationship with either party. Arbitration shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).
(b) Formal discovery is permitted only upon a showing of good cause and arbitrator approval. The arbitration may be conducted via video conference or written submissions if mutually agreed. The arbitrator shall issue a reasoned written decision, which shall be final and enforceable in any court with jurisdiction.
(c) Arbitration shall occur in the county where Client is located or at Hyport’s principal place of business, at the Claimant’s preference.
(d) Arbitration shall be conducted solely on an individual basis; no class actions, consolidated claims, or representative proceedings are allowed without mutual written consent.
(e) The arbitrator may award actual damages but has no authority to award punitive damages.
(f) If a party files a claim in court that is subject to arbitration, and the other party prevails on a motion to compel arbitration, the filing party shall reimburse reasonable attorneys’ fees and costs.
(g) No claim may be brought more than one year after the event giving rise to it.
9.2.5 Costs and Fee-Shifting.
(a) AAA and arbitrator fees shall be split equally. Each party shall bear its own attorneys’ fees and expenses initially. However, the arbitrator shall award reasonable attorneys’ fees and costs to the prevailing party.
(b) If, after arbitration commences, (i) Claimant makes a written settlement offer that Respondent rejects, and Claimant ultimately prevails and recovers an equal or greater amount, Respondent shall pay Claimant’s attorneys’ fees and expenses up to $25,000; or (ii) Respondent makes a written settlement offer that Claimant rejects and then fails to recover more in arbitration, Claimant shall pay Respondent’s attorneys’ fees and expenses up to $25,000.
9.2.6 Carve-Outs for Litigation. The following claims may be litigated in court:
(a) Collection of past-due payments.
(b) Patent, copyright, trademark, or trade secret disputes.
9.2.7 Right to Injunctive Relief. Either party may seek provisional relief (e.g., injunctions) in court without waiving arbitration. Client consents to personal jurisdiction in the state and federal courts where Hyport’s principal office is located for such purposes.
9.2.8 Forum Selection, Jury Waiver, and Damage Limitations.
(a) Venue. Any permitted court action must be filed in the county or federal district where Hyport’s principal office is located, which is currently Dallas County, Texas. Client waives objections to jurisdiction, venue, or forum inconvenience.
(b) Jury Trial Waiver. Each party waives the right to a jury trial.
(c) Punitive Damages Waiver. No party may seek punitive or exemplary damages.
(d) Attorneys’ Fees. The prevailing party in any court litigation shall recover reasonable attorneys’ fees and costs.
9.2.9 Amendments. Hyport may amend this arbitration provision with notice to Client. Continued use of Services after notice constitutes acceptance of the amendment.
10. MISCELLANEOUS
10.1 Assignment. Either party may assign the Agreement in connection with (i) a merger where the contracting entity does not survive such merger, or (ii) the sale of all or substantially all of the contracting entity’s assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under the Agreement without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection is void.
10.2 Notice and Delivery. Except as otherwise provided herein, all notices, statements and other documents, and all approvals or consents that any party is required or desires to give to any other party will be given in writing and will be served in person, by express mail, by certified mail, by overnight delivery, by facsimile, or by electronic mail at the respective addresses set forth below, or at such other addresses as may be designated by such party.
If to Hyport:
The N2 Company d/b/a Hyport
2093 Philadelphia Pike #3202
Claymont DE 19703
ATTN: Hyport Client Care
Email: legal@n2co.com
If to Client: To the contact information stated in the Order Form. Notices to Client will be addressed to the contact designated in writing by Client to Hyport for Client’s relevant account, and in the case of billing related notices, to Client’s relevant designated contact.
10.3 Compliance with Laws and Regulations. Each party shall in good faith perform its obligations hereunder in a manner that complies with all applicable laws, regulations, ordinances and codes, including identifying and procuring required permits, certificates, approvals and inspections. If either party receives any notice, summons, or complaint
regarding its noncompliance with any such laws, regulations, ordinances, or codes, it shall promptly notify the other party of such matter
10.4 Entire Understanding; Order of Precedence. The Agreement constitutes the entire agreement between the parties regarding the Services and supersedes any prior or contemporaneous communications, whether written or oral. In the event of a conflict,
the order of precedence shall be: (1) the applicable Order Form, (2) applicable Product Terms, and (3) these General Terms. If any provision of the Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect, and the invalid or unenforceable provision shall be replaced with a provision that reflects the original intent to the fullest extent permitted by law.
