TERMS OF SERVICE
THESE TERMS OF SERVICE, TOGETHER WITH ANY ORDER FORM(S) YOU MAY SIGN AT ANY TIME (COLLECTIVELY, THE “AGREEMENT”) GOVERN THE RELATIONSHIP BETWEEN PTP APP, LLC (“HYPERR”) AND THE ENTITY IDENTIFIED AS THE LICENSING ENTITY IN THE ONLINE REGISTRATION PROCESS (THE “LICENSEE”) AND APPLY TO LICENSEE’S FREE TRIAL OF THE SERVICES, AND IF LICENSEE ENTERS INTO AN ORDER FORM TO PURCHASE SERVICES, THIS AGREEMENT WILL ALSO GOVERN ITS PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THE TERMS OF SERVICE, OR BY COMMENCING USE OF HYPERR’S POLLING FEATURE (WHETHER DURING A FREE TRIAL PERIOD OR OTHERWISE), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" IN THESE PROVISIONS SHALL REFER TO SUCH ENTITY (I.E., THE “LICENSEE”). IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE POLLING FEATURE.
THESE TERMS OF SERVICE ARE EFFECTIVE BETWEEN HYPERR AND LICENSEE AS OF THE DATE OF LICENSEE FIRST TAKES ANY STEP TO AFFIRMATIVELY ASSENT TO THEM (AS DESCRIBED HEREIN), AND ANY UPDATES WILL BE EFFECTIVE WHEN POSTED AS DESCRIBED IN MORE DETAIL IN SECTION 12 BELOW. THE TERMS WERE LAST UPDATED ON April 6th, 2017.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. As used in this Agreement:
“Free Trial Period” means that period which commences on the initial effective date of Licensee’s registration and expires three (3) months thereafter (unless otherwise specified in an Order Form), during which time Licensee may access and utilize the Polling Feature, under the terms and conditions herein, at no cost.
“Licensee Data” means any data provided by Licensee for use by Hyperr in connection with the Polling Feature, such as sales data, target customer data or User Data collected and owned by Licensee. Licensee Data will also include any information or data associated with promotions or affiliate marketing programs approved by Licensee.
“Licensee Websites” means those Licensee websites identified in the initial online registration process or otherwise in an Order Form and any related social media accounts, blogs, or other channels owned or controlled by Licensee through which Licensee shares content.
"Licensee IP" means (i) the Licensee Websites and all text, images, logos and other materials contained within the Licensee Websites, (ii) any and all trademarks of Licensee, and (iii) any other intellectual property, assets or materials provided by Licensee to Hyperr, including style guides, designs, and specialized fonts.
“License Fees” means the monthly license fees described in an Order Form.
"License Term" means the Free Trial Period and any addition term set forth in an Order Form.
"Polling Feature" means Hyperr’s proprietary polling and poll-building feature which allows its clients and its client’s users/customers to create and share polls, and all underlying software related thereto, as it may be enhanced, modified and updated.
“Hyperr Technology” shall have the meaning in Section 6.1 below.
“Hyperr IP Rights” shall have the meaning in Section 6.1 below.
"Order Form" means any Order form entered into by Licensee concurrently with these Terms of Service (if applicable) or at any other time during the License Term, all of which are made a part of this Agreement.
“Users” means the users of the Licensee Websites who may make use of the Polling Feature.
“User Data” means any and all information or data tied to specific, identifiable Users, including personally identifiable information.
“User Poll” means any poll created by a user of the Licensee Websites using the poll-building function of the Polling Feature which will generate its own custom webpage located at a unique URL (e.g., outside of the Licensee Websites) hosted by Hyperr.
2.1 Polling Feature License. Hyperr hereby grants to Licensee a non-exclusive license during the License Term to utilize the Polling Feature as incorporated or embedded into the Licensee Websites on the terms set forth in this Agreement. The foregoing license shall include a license to any improvements, updates, modifications or developments Hyperr may make to the Polling Feature in its discretion.
2.2 Hosting. Hyperr shall provide hosting services with respect to any functionality or separate websites required to provide access to the Polling Feature as described hereunder.
3. Specific Functionality/Features.
3.1 Poll Building and Sharing. The User Poll functionality will allow Users to create their own poll using certain Licensee IP accessible via the Polling Feature or the Licensee Website, including but not limited to, the Licensee’s trademark and images, photographs, videos, and text. Such User Polls may also include a link back to the Licensee Website. Users will then have the ability to share that poll using numerous methods under the control of the user, including via e-mail and messaging and through certain of the User’s social media accounts.
3.2 Hyperr Accounts. Without limiting anything in Section 6.4 below, Licensee acknowledges and agrees that in connection with a User’s execution of a poll through the Polling Feature, that User may be given the opportunity to establish an account with Hyperr (although such an account will not be necessary in order for a User to utilize the Polling Feature). For the sake of clarity, any User Data, including personal information, collected by Hyperr by any User establishing and using a Hyperr account shall be owned and controlled by Hyperr.
3.3 Advertising. Licensee acknowledges and agrees that Hyperr may include third party advertisements within any User Polls.
4. Use of the Polling Feature.
4.1 Hyperr Responsibilities. Hyperr shall: (i) use commercially reasonable efforts to maintain the security of the Polling Feature and any Licensee Data provided to Hyperr; and (ii) use commercially reasonable efforts to ensure that the Polling Feature remains available to Licensee and its Users during the License Term.
4.2 Licensee Responsibilities. Licensee shall have sole responsibility for (i) the activities of its Users or that otherwise occur on or through the Licensee Websites; (ii) the monitoring of activity on the Licensee Websites and responding to takedown requests or other legal inquiries/demands; (iii) the accuracy, quality, integrity, legality, reliability, and appropriateness of all Licensee IP; and (iv) the compliance in the use and exploitation of the Licensee Websites with all applicable local, state, federal, and foreign laws.
4.3 Polling Feature Guidelines. Licensee shall not use the Polling Feature to: (i) send spam or any other form of duplicative and unsolicited messages other than marketing and promotional messages to Licensee’s Users and prospective Users as contemplated by the functionality of the Licensee Websites; (ii) harvest, collect, gather, or assemble information or data regarding users without their consent; (iii) knowingly transmit or post through the Polling Feature unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (iv) knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (v) knowingly interfere with or disrupt the integrity or performance of the Polling Feature or the data contained therein; (vi) attempt to gain unauthorized access to the Polling Feature, computer systems, or networks related to the Polling Feature; or (vii) harass or interfere with another user’s use and enjoyment of the Polling Feature. Licensee is specifically prohibited from copying, disclosing, reproducing or distributing the Polling Feature except in object code and only as integrated into the Licensee Websites. Hyperr shall have the right at any time and in its sole discretion to delete or block any polls or any content incorporated into the Polling Feature.
5. Fees & Payment.
5.1 Fees. Unless otherwise stated in an Order Form, Licensee’s use of the Polling Feature pursuant to the terms of this Agreement will be at no charge during the Free Trial Period. Licensee shall otherwise pay the fees specified in any Order Form. All fees are quoted in United States Dollars. Fees are non-refundable except as otherwise specifically set forth in this Agreement.
5.2 Additional Services Fees. Any work outside the scope of this Agreement, including any Order Form, performed by Hyperr pursuant to Licensee’s request will be billed at Hyperr’s then standard hourly rate in 15 minute-increments, unless otherwise set forth in an executed Order Form.
5.3 Invoicing & Payment. All terms related to fees, rates, and invoicing shall be as described in the Order Form. All payments made under this Agreement shall be in United States dollars.
5.4 Overdue Payments. Any payment not received from Licensee by the due date may accrue, at Hyperr’s discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower; from the date such payment was due until the date paid. Licensee shall reimburse Hyperr for any and all expenses it may incur, including reasonable attorney’s fees, in taking action to collect any past due and unpaid balances due to Hyperr hereunder.
5.5 Suspension of Service. If Licensee’s account is 10 days or more overdue, in addition to any of its other rights or remedies, Hyperr reserves the right to suspend Licensee’s access to the Polling Feature, without prior notice or liability to the Licensee, until such amounts are paid in full.
5.6 Billing and Contact Information. Licensee shall maintain complete, accurate, and up-to-date billing and contact information at all times.
5.7 Invoice Disputes. Any invoice submitted by Hyperr shall be deemed correct unless Licensee provides written notice within thirty (30) days of the invoice date specifying the nature of the disagreement.
6. Proprietary Rights.
6.1 Reservation of Rights. Hyperr owns all right, title and interest in and to the Polling Feature and all functionalities and features therein, including as it may be upgraded, modified or improved, except to the extent of the incorporation of Licensee IP. The rights owned and retained by Hyperr include: (i) all Hyperr trademarks; and (ii) all technology, software code (source, object or compiled), products, processes, algorithms, user interfaces, know-how, works of authorship and other trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information used to provide the Polling Features, and/or conceived or developed under or in connection with any Order Form (collectively "Hyperr Technology"), and all intellectual property rights therein ("Hyperr IP Rights") and (iii) any and all Aggregate Data or User Data collected by Hyperr through the Polling Feature (including as it may be incorporated into the Licensee Websites). Other than as expressly set forth in this Agreement, no license or other rights in the Hyperr IP Rights are granted to the Licensee, and all such rights are hereby expressly reserved.
6.2 Licensee Rights & License. Licensee retains all right, title and interest in and to the Licensee IP and Licensee Data. Licensee shall have the right to collect, monitor and aggregate any and all Aggregate Data and User Data arising out of its User’s use of the Licensee Websites (subject to the terms set forth in Section 6.4) and such data shall be deemed Licensee Data. Licensee hereby grants to Hyperr during the License Term a non-exclusive, non-sublicenseable, non-transferable license to use, copy, store, modify, and display the Licensee IP and Licensee Data solely to the extent necessary to provide the Polling Feature, including all rights necessary to allow Licensee’s users to share User Polls as described in Section 3.1 above or for Hyperr to create custom polls branded with the Licensee IP for Licensee’s use hereunder.
6.3 Restrictions. Licensee shall not (i) modify, copy or make derivative works based on the Hyperr Technology; or (ii) disassemble, reverse engineer, or decompile any of the Hyperr Technology.
6.4 User Data. To the extent Licensee shares any of Licensee’s User Data with Hyperr, Licensee represents and warrants that all personally identifiable information was collected and will be used and disclosed (if at all) in accordance with all applicable laws and regulations and Licensee’s privacy policies. As between the parties, Licensee shall own all rights in and to User Data collected by Licensee and assumes all responsibilities, liabilities and obligations in connection therewith. For the sake of clarity, the foregoing shall not limit Hyperr’s right to collect, own and utilize Aggregate Data or User Data collected by Hyperr through the Polling Feature or otherwise.
6.5 Publicity. Hyperr shall be permitted to use Licensee IP in external marketing or promotional materials, including on Hyperr’s website, in testimonial content, and in press releases, and within internal materials, including case studies and decks, to indicate that Licensee is a client of Hyperr and to demonstrate examples of Licensee’s use of the Polling Feature, provided that Hyperr shall not use Licensee IP in any way that may disparage Licensee or disparage its brand.
6.6 Suggestions, Ideas and Feedback. Hyperr shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Licensee or any other party relating to the Polling Feature to the extent it does not constitute Confidential Information of Licensee.
7.1 Definition of Confidential Information. As used herein, "Confidential Information" means all information of a party ("Disclosing Party") which the Disclosing Party designates in writing as being confidential when it discloses such information to the other party ("Receiving Party") or that which would be reasonably expected to be confidential information, including without limitation the terms and conditions of this Agreement, Licensee IP, the Hyperr Technology, the Polling Feature, business and marketing plans, technology and technical information, product designs, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). Confidential Information shall not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party.
7.2 Protection. Each party will not disclose the other party’s Confidential Information, or use the other party’s Confidential information for any purpose other than to perform its obligations or exercise its rights under this Agreement, and will protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. A transfer or disclosure of Licensee IP by Hyperr to a third party as an asset in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets shall not be deemed a breach of its confidentiality obligations hereunder.
7.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party's cost) if the Disclosing Party wishes to contest the disclosure.
7.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate
8. Warranties & Disclaimers.
8.1 Hyperr Warranties Hyperr represents and warrants that (i) the Polling Feature does not infringe upon the copyright, patent right, trade secret right or other intellectual property rights of any third party or violate any law or regulation; (ii) there is no outstanding contract, commitment or agreement to which Hyperr is a party or any litigation or claim (pending or threatened) of any kind known to Hyperr which conflicts with this Agreement or might limit, restrict or impair the rights granted to Licensee hereunder.
8.2 Licensee Warranties. Licensee represents and warrants that (i) the Licensee IP and Licensee Data does not infringe upon the copyright, patent right, trade secret right or other intellectual property rights of any third party or violate any law or regulation; (ii) Licensee, Licensee IP, Licensee Data, and Licensee’s use of the Licensee Websites and Polling Feature do and will comply with all applicable laws, rules and regulations; and (iii) all Licensee Data provided to Hyperr is accurate.
8.3 Disclaimer of Warranties. Except for the representations and warranties expressly provided herein, the Polling Feature, Hyperr Technology and Hyperr IP Rights hereunder are provided on an “as is” and “as available” basis and Hyperr makes no representations or warranties with respect thereto. All conditions, warranties, and representations, express or implied, are excluded, including, without limitation, any conditions or warranties relating to merchantability or fitness for a particular purpose.
9.1 Indemnification by Hyperr. Hyperr shall defend, indemnify, and hold Licensee, its officers, directors, employees, affiliates, successors, agents and representatives harmless against any loss or damage (including without limitation reasonable attorney's fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Licensee by a third party arising out of (i) a claim that the Hyperr Technology, or the use thereof by either party solely in accordance with the terms of this Agreement, infringes the intellectual property rights or any other rights of such third party; or (ii) Hyperr’s intentional misconduct or gross negligence; or (iii) a breach of Hyperr’s reps, warranties, covenants or agreements herein. Licensee shall (a) promptly give written notice of the Claim to Hyperr; (b) give Hyperr sole control of the defense and settlement of the Claim (provided that Hyperr may not settle or defend any Claim unless it unconditionally releases Licensee of all liability without the obligation to take or refrain from any action or pay any amounts); and (c) provide to Hyperr, at Hyperr’s cost, all reasonable assistance. Hyperr shall have no obligations to Licensee under this Section 9.1 to the extent such Claims give rise to Licensee’s indemnity obligations hereunder.
9.2 Indemnification by Licensee. Licensee shall defend, indemnify, and hold Hyperr, its officers, directors, employees, affiliates, successors, agents and representatives harmless against any loss or damage (including without limitation reasonable attorney's fees) incurred in connection with Claims made or brought against Hyperr by a third party arising out of (i) a breach of Licensee’s reps, warranties, covenants or agreements herein; (ii) Licensee’s intentional misconduct or gross negligence; or (iii) the acts or omissions of Licensee’s Users. Hyperr shall (a) promptly give written notice of the Claim to Licensee; (b) give Licensee sole control of the defense and settlement of the Claim (provided that Licensee may not settle or defend any Claim unless it unconditionally releases Hyperr of all liability without the obligation to take or refrain from any action or pay any amounts); and (c) provide to Licensee, at Licensee's cost, all reasonable assistance. Licensee shall have no obligations to Hyperr under this Section 9.2 to the extent such Claims give rise to Hyperr’s indemnity obligations hereunder.
10. Limitation of Liability and Action.
10.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, REVENUES, USE OR DATA ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUMULATIVE LIABILITY OF ONE PARTY TO ANOTHER FOR ALL CLAIMS WHATSOEVER ARISING OUT OF THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, WARRANTY, TORT, OR STRICT LIABILITY (BUT EXCLUDING EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN) SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY LICENSEE TO Hyperr DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE LOSS OR, IF NO FEES HAVE BEEN PAID, $5,000.
10.2 Limitation of Action. Except for actions for non- payment or breach of either party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the date such claim or cause of action accrued.
11. Term / Termination.
11.1 Term. The rights granted hereunder shall be valid solely during the License Term. Upon the expiration of the License Term or the earlier termination of this Agreement pursuant to the provisions herein, all use of the Polling Feature and the exploitation of any other rights granted by Hyperr hereunder shall immediately cease. For the sake of clarity, in the event the parties do not enter into an Order Form prior to the expiration of the Free Trial Period, all of Licensee’s rights hereunder shall terminate upon the expiration of such Free Trial Period.
11.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
11.3 Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 6, 7, 9, 10, 11, 12, 13 and any other provisions reasonably expected to survive given their subject matter.
12. Changes to these Terms of Service. Hyperr may revise these Terms of Service from time to time. If so, those revised Terms of Service will supersede prior versions. Revisions will be effective upon the “last updated” date indicated at the top of these Terms of Service. Hyperr will use good faith efforts to provide advance notice of any material revisions. Licensee is encouraged to check the effective date of these Terms of Service whenever it visits Hyperr’s website. Licensee’s continued access or use of the Polling Feature constitutes its acceptance of any revisions. Licensee must cease any use of the Polling Feature in the event it does not agree to the Terms of Service, as they may be modified as described herein.
13. General Provisions.
13.1 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.2 No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.
13.3 Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses set forth in the first paragraph of this Agreement by means evidenced by a delivery receipt, by facsimile, or by email. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by email. Notices to Hyperr shall be addressed to the attention of its Chief Operations Officer.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party.
13.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section 13.6 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of laws provisions.
13.8 Venue. The federal and state courts located in the Southern District of California shall have jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.
13.9 Export Control Laws. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
13.10 Entire Agreement and Construction. This Agreement and all Order Forms constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of the Order Form shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Licensee purchase order or in any other Licensee order documentation shall be incorporated into or form any part of this Agreement.
13.11 Effectiveness. This Agreement shall be valid and binding on Licensee upon Licensee’s affirmative assent to it in any manner, which may be in the form of checking a box during the registration process to indicate Licensee’s agreement to the terms of this Agreement but will also be deemed to occur upon Licensee’s commencement of use of the Polling Feature, whether during the Free Trial Period or otherwise. No written signature is required unless otherwise requested under an Order Form.
13.12 Force Majeure. Neither party will be deemed in breach of this Agreement if the failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service attacks.