These Software as a Service Terms and Conditions ("Terms") together with any applicable Order Form issued hereunder ("Order Form"), are by and between Hopthru, Inc., a Delaware Corporation ("Hopthru") and the Customer named in such Order Form ("Customer"). Hopthru and Customer agree as follows:
1. SERVICES
1.1
"Services" means the certification services, implementation services, training services, software updates and any other services that Hopthru, Inc. provides to the Customer as specified in the Order Form and in accordance with the terms and conditions set forth in these Terms.
1.2
"Software" means proprietary information (including, but not limited to, the provision of remote computer services, information technology services, telecommunications, data networks and data center management) of Hopthru protected by copyright, trademark, patent, trade secret and/or other intellectual property rights and that all such intellectual property rights provided or distributed herein are owned by Hopthru.
1.3
"Hopthru SaaS Platform" refers to the provision of Hopthru's proprietary information platform via remote computer services, information technology services, telecommunications, data networks, and data center management. This includes, but is not limited to, certification services, implementation services, training services, software updates, and other services as specified in the Order Form. These Services and Software are protected by copyright, trademark, patent, trade secret and/or other intellectual property rights owned by Hopthru. The Hopthru SaaS Platform is provided in accordance with the terms and conditions set forth in these Terms and is accessed by the Customer on a subscription basis for the term specified in the Order Form.
2. SERVICES AND SUPPORT
2.1
Subject to the terms of this Agreement, Hopthru will use commercially reasonable efforts to provide Customer the Hopthru SaaS Platform. As part of the registration process, Customer will identify a password for Customer's Hopthru SaaS Platform account. Customer is responsible for maintaining the confidentiality of its account information, including the email and password, and is solely responsible for all activities that occur under its account. Customer agrees to notify Hopthru immediately of any unauthorized use of its account or any other breach of security.
2.2
Subject to the terms hereof, Hopthru will provide Customer with e-mail support for Customer's use of the Services during Hopthru's regular business hours. Customer agrees that Hopthru is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer's systems or hardware.
2.3
Hopthru may update the Hopthru SaaS Platform from time to time. Hopthru shall include in the Hopthru SaaS Platform provided hereunder any such updates that Hopthru generally provides to its customers free of charge; however, nothing in this Agreement will obligate Hopthru to provide Services or Software that include any upgrade (i.e. revisions to the Services or Software that include new features or substantial increases in functionality or upgrades or services for which Hopthru charges).
3. RESTRICTIONS AND RESPONSIBILITIES
3.1
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software or any software, documentation or data related to the Hopthru SaaS Platform; modify, translate, or create derivative works based on the Hopthru SaaS Platform or any Software (except to the extent expressly permitted by Hopthru); use the Hopthru SaaS Platform or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect the Hopthru SaaS Platform and any Software that is distributed or provided to Customer for use on Customer premises or devices, Hopthru hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
3.2
Customer acknowledges that the Software contains proprietary information (including, but not limited to, the provision of remote computer services, information technology services, telecommunications, data networks and data center management) of Hopthru protected by copyright, trademark, patent, trade secret and/or other intellectual property rights ("Intellectual Property"); and that all such intellectual property rights are and shall be owned by Hopthru. Customer agrees not to challenge any Intellectual Property right of Hopthru in the Software during this Agreement or at any time after any expiration or termination thereof. All of Customer's obligations regarding the limitations on use and the intellectual property rights of Hopthru, shall survive any termination or expiration of this Agreement. All customizations, improvements, modifications, adaptations, derivative works, or enhancements to the Hopthru SaaS Platform, Software, or Services created during this Agreement (collectively, "Improvements") shall be owned exclusively by Hopthru. Customer may provide suggestions, comments, ideas, or other feedback including, but not limited to, new features, feature ideas, or functionality, or any questions, comments, suggestions, ideas, original or creative materials, or other information relating to the Software (collectively, "Feedback"). Customer agrees to and does hereby assign to Hopthru automatically on creation or disclosure to Hopthru all right, title, and interest in all Feedback and Improvements, without any need for further consideration or notice to Customer.
3.3
Customer represents, covenants, and warrants that Customer will use the Hopthru SaaS Platform only in compliance with Hopthru's standard policies then in effect and made available to Customer (the "Policy") and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Hopthru against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of Software or Services. Although Hopthru has no obligation to monitor Customer's use of the Hopthru SaaS Platform, Hopthru may do so and may prohibit any use of the Software or Services it believes may be (or alleged to be) in violation of the foregoing.
3.4
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Hopthru includes non-public information regarding features, functionality, data, and performance of the Software or Services. Proprietary Information of Customer includes non-public data provided by Customer to Hopthru to enable the provision of the Services ("Customer Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2
Customer will attempt to upload Customer Data to be analyzed by the Services on a daily basis using the interfaces provided by Hopthru in the format prescribed by Hopthru. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Hopthru as part of the Services. Hopthru shall own and retain all right, title and interest in and to (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Hopthru SaaS Platform, and (c) all intellectual property rights related to any of the foregoing.
4.3
Notwithstanding anything to the contrary, Hopthru shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Hopthru will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Software or Services and for other development, diagnostic and corrective purposes in connection with the Hopthru SaaS Platform and other Hopthru offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5. PAYMENT OF FEES
5.1
Customer will pay Hopthru the then-applicable fees described in the Order Form in accordance with the terms therein (the "Fees"). Hopthru reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon 30 days prior notice to Customer (which may be sent by email). If Customer believes that Hopthru has billed Customer incorrectly, Customer must contact Hopthru no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Hopthru's customer support department.
5.2
Hopthru may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Hopthru 30 days after the issuance of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Hopthru's net income.
5.3
All fees are non-refundable and non-cancellable without Hopthru's written consent.
6. TERM AND TERMINATION
6.1
Unless otherwise specified in the Order Form or terminated as provided herein, this Agreement shall commence on the earlier of the Effective Date or the beginning of the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional one-year periods (collectively, the "Term") with an annual price increase of 10% for all applicable software modules, unless either party requests termination at least 30 days prior to the end of the then-current term.
6.2
In addition to any other remedies it may have, either party may also terminate this Agreement upon 30 days' notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such material breach prior to the effective date of termination. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Hopthru will make all Customer Data available to Customer for electronic retrieval for a period of 30 days, but thereafter Hopthru may, but is not obligated to, delete stored Customer Data. Either party may terminate this Agreement if: (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 90 days of filing.
6.3
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTY AND DISCLAIMER
Hopthru shall use reasonable efforts consistent with prevailing industry standards to maintain the Software and Services in a manner which minimizes errors and interruptions. Services or Software may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Hopthru or by third-party providers, or because of other causes beyond Hopthru's reasonable control, but Hopthru shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, HOPTHRU DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE OR SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE HOPTHRU SAAS PLATFORM IS PROVIDED "AS IS" AND HOPTHRU DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, HOPTHRU AND ITS SUPPLIERS (INCLUDING, BUT NOT LIMITED TO, ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND HOPTHRU'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO HOPTHRU FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT HOPTHRU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. MISCELLANEOUS
9.1
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party except with the other party's prior written consent, provided however Hopthru may transfer and assign any of its rights and obligations under this Agreement without consent in connection with a merger, acquisition, or sale of business. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. The captions and headings in this Agreement are intended only for convenience, and will in no event be construed to define, limit or describe the scope or intent of this Agreement, or of any provision of this Agreement, nor in any way affect the interpretation of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Hopthru in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. Customer otherwise agrees to reasonably cooperate with Hopthru to serve as a reference account upon request. This Agreement may be executed in counterparts, which taken together will constitute the same instrument.
9.2
Hopthru is constantly trying to improve our Services, so these Terms may need to change along with the Software and Services. Hopthru reserves the right to change the Terms at any time, but if Hopthru does, it will bring it to Customer's attention by notifying the customer in writing, and/or by some other means. If Customer doesn't agree with the new Terms, Customer is free to reject them; unfortunately, that means Customer will no longer be able to use the Software. If Customer uses the Hopthru SaaS Platform in any way after a change to the Terms is effective, that means Customer agrees to all of the changes. Except for changes by Hopthru as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both Customer and Hopthru. Notwithstanding the foregoing, any changes to Customer's Order Form must be mutually agreed upon and signed by both Hopthru and the Customer. In the event that there is any conflict or inconsistency between the provisions of these Terms and the provisions of the Customer's Order Form, the provisions of the Customer's Order Form shall prevail and be given effect to the exclusion of the specific conflicting or inconsistent provisions in these Terms, provided however that all other non-such conflicting or inconsistent provisions in these Terms remain in force the same.
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