Last Updated Date: Nov. 5, 2021
PLEASE READ THIS SERVICE PROVIDER MARKETPLACE TERMS OF SERVICE AGREEMENT (“TERMS OF SERVICE”) CAREFULLY. THIS WEBSITE AND ITS SUBDOMAINS (COLLECTIVELY, THE “WEBSITE”), THE INFORMATION ON THE WEBSITE, AND THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), ARE CONTROLLED BY ARL TECHNOLOGIES INC. D/B/A HOPPS (“HOPPS”). THESE TERMS OF SERVICE ALONG WITH ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”), GOVERN YOUR ACCESS TO AND USE OF THE SERVICES. BY SELECTING THE “BY CONTINUING, YOU AGREE TO OUR TERMS OF SERVICE” CHECKBOX AND CLICKING ON THE “CREATE EXPERT ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE, OR OTHERWISE ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH HOPPS, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY IDENTIFIED DURING THE ACCOUNT REGISTRATION PROCESS (“YOU” OR “SERVICE PROVIDER”), AND TO BIND SERVICE PROVIDER TO THE AGREEMENT. IF SERVICE PROVIDER DOES NOT AGREE TO BE BOUND BY THE AGREEMENT, SERVICE PROVIDER MAY NOT ACCESS OR USE ANY OF THE SERVICES.
PLEASE BE AWARE THAT SECTION 19 (DISPUTE RESOLUTION) CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN US WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS SERVICE PROVIDER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY HOPPS IN ITS SOLE DISCRETION AT ANY TIME. WHEN CHANGES ARE MADE, HOPPS WILL MAKE A COPY OF THE UPDATED AGREEMENT AVAILABLE AT THE WEBSITE AND UPDATE THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS SERVICE. IF YOU DO NOT AGREE TO THE UPDATED AGREEMENT, YOU MUST STOP USING ALL SERVICES UPON THE EFFECTIVE DATE OF THE UPDATED AGREEMENT. OTHERWISE, YOUR CONTINUED USE OF ANY OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE UPDATED AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT. YOU AGREE THAT HOPPS’S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT.
1. How the Hopps Services Work. The Services are a venue to connect Service Providers who are subject matter experts with respect to certain third party IT and software platforms (each, a “Third Party Platform” and collectively, “Third Party Platforms”), to customers who need support and training assistance (“Service Provider Services”) with such Third Party Platforms (each, a “Customer”). Customers may purchase Service Provider Services through live video chat sessions (each, a “Session”). Hopps does not own, sell, resell, furnish, license, provide, or manage Service Provider Services. Our responsibilities are limited to facilitating the availability of the Service Provider Services.
1.1 Performance of Service Provider Services. In connection with your registration for an Account (as defined below), you may be asked to identify those Third Party Platforms of which you are a subject matter expert. You may then be matched with Customers in need of subject matter experts based on the information you have provided in your Account. You represent and warrant that you have sufficient training, education and/or experience with each Third Party Platform of which you have identified yourself as a subject matter expert, in order to provide Service Provider Services in a competent manner. You further represent, warrant and covenant that (i) you will provide the Service Provider Services in a professional and workman like manner in accordance with the highest industry standards and best practices and applicable laws, rules and regulations, (ii) that you will not disclose or use any information provided by or learned from Customers during the performance of any Service Provider Services, such as confidential and proprietary information of Customers, except as necessary to provide the Service Provider Services, (iii) you have all licenses and permits necessary to perform the Service Provider Services, and (iv) your performance of the Service Provider Services will not violate or conflict with any other agreement to which you are a party.
1.2 Responsibility of Service Provider. PLEASE NOTE THAT, AS STATED ABOVE, THE SERVICES ARE INTENDED TO BEUSED TO FACILITATE THE CONNECTION OF SERVICE PROVIDERS AND CUSTOMER OF THE SERVICES FOR THE PURPOSES OF ARRANGING SERVICE PROVIDER SERVICES THROUGH THE SERVICES, BUT YOU AGREE THAT HOPPS HAS NO RESPONSIBILITY OR LIABILITY RELATED TO ANY SERVICE PROVIDER SERVICES PROVIDED BY YOU OR ANY OTHER SERVICE PROVIDERS. HOPPS CANNOT AND DOES NOT CONTROL THE INFORMATION OR CONTENT PROVIDED BY, OR THE CONDUCT OF, ANY CUSTOMER. FURTHERMORE, HOPPS DOES NOT CONDUCT ANY BACKGROUND CHECKS OR ATTEMPT TO VET ANY CUSTOMERS. HOPPS IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL INTERACTIONS, DISPUTES, AND CLAIMS WITH ANY CUSTOMER. ACCORDINGLY, ANY ENGAGEMENTS AND SERVICE PROVIDER SERVICES MADE WITH CUSTOMERS WILL BE MADE OR ACCEPTED AT A SERVICE PROVIDER’S OWN RISK.
1.3 Independent Contractor Relationship Only. SERVICE PROVIDERS ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, OR FRANCHISEES OF HOPPS. HOPPS DOES NOT PERFORM ANY OBLIGATIONS IN CONNECTION WITH THE SERVICE PROVIDER SERVICES TO SERVICE PROVIDERS AND DOES NOT EMPLOY SERVICE PROVIDERS TO PERFORM SUCH OBLIGATIONS. ALL USERS OF THE SERVICES HEREBY ACKNOWLEDGE THAT HOPPS DOES NOT SUPERVISE, DIRECT,CONTROL OR MONITOR ANY SERVICE PROVIDER’S ENGAGEMENTS OR SERVICE PROVIDER SERVICES BUT MAY MONITOR ENGAGEMENT MADE THROUGH THE SERVICES. THE RELATIONSHIP BETWEEN SERVICE PROVIDERS AND HOPPS ARE THAT OFAN INDEPENDENT CONTRACTOR.
2. RECORDED SESSIONS.
HOPPS MAY, AND YOU HEREBY CONSENT TO, THE RECORDING OF SESSIONS, INCLUDING ANY VIDEO,STILLS, PICTURES, AUDIO AND OTHER AUDIO-VISUAL CONTENT RELATED THERETO, AS WELLAS YOUR IMAGE, LIKENESS, VOICE AND ACTIONS DURING A SESSION, IN ANY MEDIA,WHETHER NOW KNOWN OR HEREAFTER DEVISED (COLLECTIVELY, “RECORDINGS”). You acknowledge and agree that, and hereby grant Hopps a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers) and transferable right to collect and analyze Recordings in order to provide, improve and enhance the Services and other offerings of Hopps, and (b) use and/or disclose such Recordings solely in aggregate or other de-identified form in connection with its business. You acknowledge that Hopps has no obligation to share or disclose any Recordings to you.
3. USE OF THE SERVICES. The Services, and the information and content available on them, are protected by applicable intellectual property laws. Unless subject to a separate license between you and Hopps, your right to use any and all Services is subject to the Agreement.
3.1 Updates. You understand that the Services are evolving. As a result, Hopps may require you to accept updates to the Services that you have installed on your computer or mobile device. You acknowledge and agree that Hopps may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
3.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Hopps; (c) you shall not use any metatags or other“hidden text” using Hopps’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including, but not limited to, spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you will not access Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services. Any future release, update or other addition to Services shall be subject to the Agreement. Hopps, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use, or suspected unauthorized use, of the Services terminates the rights and licenses granted by Hopps pursuant to the Agreement. You agree to indemnify Hopps Parties in the event of any claims against Hopps based on or arising from your violation of the foregoing.
4.1 Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of theAgreement, a “Registered User” is a user who has registered an account with Hopps through the Services (“Account”).
4.2 Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are(i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account login or password with anyone, and you agree to (y) notify Hopps immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Hopps has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Hopps has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Hopps reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create anAccount or use the Services if you have been previously removed by Hopps, or if you have been previously banned from any of the Services.
5. RESPONSIBILITY FOR CONTENT.
5.1 Types of Content. You acknowledge that any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and other materials accessible through the Services (collectively, “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Hopps, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Services (“Your Content”), and that you and other Registered Users of theServices, such as Customers, and not Hopps, are similarly responsible for all Content that you and they make available through the Services (“User Content”).
5.2 No Obligation to Pre-Screen Content. You acknowledge that Hopps has no obligation to pre-screen User Content, although Hopps reserves the right in its sole discretion to pre-screen, refuse or remove any UserContent. By entering into the Agreement, you hereby provide your irrevocable consent to Hopps’s monitoring of YourContent. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Hopps pre-screens, refuses or removes any of Your Content, you acknowledge that Hopps will do so for Hopps’s benefit, not yours. Without limiting the foregoing, Hopps shall have the right to remove any of Your Content that violates the Agreement or is otherwise objectionable.
5.3 Storage. Hopps has no responsibility or liability for the deletion or accuracy of any User Content, including Your Content; the failure to store, transmit or receive transmission of any User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for choosing the appropriate level of access to Your Content. If you do not so choose, the Services may default to the most permissive setting. You agree that Hopps retains the right to create reasonable limits on Hopps’s use and storage of User Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits as determined by Hopps in its sole discretion.
6.1 Services. Except with respect to YourContent and other User Content, you agree that Hopps and its suppliers own all rights, title and interest in the Services. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
6.2 Your Content. Hopps does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services.
6.3 License to Your Content. Subject to any applicable Account settings that you select, and without limiting Section 2, you grant Hopps a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole orin part) for the purposes of operating and providing the Services to you and to our other Registered Users. You agree that you, not Hopps, are responsible for all of Your Content.
6.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Hopps through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Hopps has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Hopps a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Hopps’s business.
7. USER CONDUCT. As a condition of use, you agree not to use any of theServices for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to (a) take any action or (b) make available any Content on or through the Services that: (i)infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves contests, sweepstakes, barter, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Hopps; (vi) interferes with or attempts to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against theServices, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
8. INVESTIGATIONS. Hopps may, but is not obligated to, monitor or review the Services and Content at anytime. Without limiting the foregoing, Hopps shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Hopps may monitor the activities of Customers and Service Providers as described in Section 2, and if Hopps becomes aware of any possible violations by you of any provision of the Agreement, Hopps reserves the right to investigate such violations, and Hopps may, at its sole discretion, immediately terminate your license to use theServices, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
9. INTERACTIONS WITH OTHER USERS.
9.1 User Responsibility. ServiceProviders and other users of the Services are solely responsible for their interactions with each other, and any other parties with whom they interact; provided, however, that Hopps reserves the right, but has no obligation, to intercede in disputes. Service Providers and other users of the Services agree that Hopps will not be responsible for any liability incurred as the result of such interactions. YOU UNDERSTAND THAT HOPPS DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS REGISTERED USERS OR EVALUATE THE CREDENTIALS OF ANY REGISTERED USER. HOPPS ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ITS REGISTERED USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS REGISTERED USERS. HOPPS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF REGISTERED USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE SERVICE PROVIDERS OR OTHER REGISTERED USERS. HOPPS RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
9.2 Content Provided by Other Users. Services may contain User Content provided by other users. Hopps is not responsible for and does not control User Content. Hopps has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
9.3 Non-Circumvention. In order to continue providing theServices, it is imperative that our users understand and agree that we depend on our users complying with the spirit of this Agreement. In particular, we require that all of ourCustomers and Service Providers utilize the Service to provide Service ProviderServices and that such users will not circumvent the Services in order to provide the Service Provider Services, or similar services thereto, outside of the Services. Without limiting the foregoing, Service Providers may not use any information provided by Customers, such as names, email addresses and contact information, for the purpose of soliciting or inducing Customers away from Hopps or the Services. If ServiceProvider engages any Customer outside of the Services, Service Provider will pay Hopps in accordance with Hopps’s fee schedule. In the event Service Provider induces, suggests, or otherwise solicits any user’s request for Service Provider Services outside the Services, Hopps shall have the right to immediately terminate Service Provider’s Account without notice, with no liability, and no further obligation to Service Provider.
10. PAYMENT TERMS.
10.1 Payment. Service Provider may earn fees in connection with its performance of Service Provider Services during Sessions, and Hopps agrees to pay Service Provider such fees as set forth on Hopps’ pricing sheet (provided upon request). Payments will be typically made within five (5) business days following receipt of payment by the applicable Customer. Service Providers must provide Hopps with a valid payment information accepted by Hopps, such as a valid electronic funds transfer or valid bank account (each, a “Payment Method”) as a condition to signing up for the Services. Service Provider agrees to immediately notify Hopps of any change in your Payment Method, and Hopps will have no liability for any payment failures or issues related to Service Provider’s failure to update its Payment Method. Hopps reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
10.2 Taxes. The payments required under Section 10.1 do not include any Sales Tax that may be due in connection with the services provided under theAgreement. If Hopps determines it has a legal obligation to collect a Sales Tax from you in connection with theAgreement, Hopps may collect such Sales Tax in addition to the payments required under Section10.1. If any services or products, or payments for any services or products, under theAgreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Hopps, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Hopps for any liability or expense Hopps may incur in connection with such Sales Taxes. Upon Hopps’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
10.3 Payment Disputes and Chargebacks. Hopps reserves the right to withhold payment with respect to any disputed Service Provider Services, including anyCustomer dispute or claim related thereto. In the event a Customer submits a chargeback, Hopps will have sole control over the management and settlement of such issues. Hopps may offset any payments owed or payable by Hopps against any other claims that Hopps or any other Customer may have.
11. RELEASE. Hopps expressly disclaims any liability that may arise between users of the Services. The Services are only a venue for connecting ServiceProviders and users of the Services. Because Hopps is not a party to the actual contracts between Service Providers and other users, in the event that you have a dispute with one or more Customers or other Service Providers, you release Hopps, its parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors (collectively, the “Hopps Parties”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by an Hopps Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform provided hereunder.
12. Indemnification. You agree to indemnify and hold the Hopps Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees)relating to or arising out of any and all of the following: (a) Your Content;(b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party, including any Registered Users; (d) your violation of any applicable laws, rules or regulations; or (e) your provision of Service Provider Services. Hopps reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Hopps in asserting any available defenses. This provision does not require you to indemnify any of the Hopps Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
13. DISCLAIMER OF WARRANTIES AND CONDITIONS.
13.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. HOPPS EXPRESSLY DISCLAIMS ALL WARRANTIES,REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED,INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) HOPPS MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. HOPPS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY,EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HOPPS OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY OR COVENANT NOT EXPRESSLY MADE HEREIN.
(e) From time to time, Hopps may offer new “beta”features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Hopps’s sole discretion. The provisions of this section apply with full force to such features or tools.
13.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT HOPPS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TOSEEK TO HOLD HOPPS LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. HOPPS MAKES NO WARRANTY THAT THE INFORMATION,GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. HOPPS MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH INFORMATION, GOODS OR SERVICES, ORTHE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH SERVICES.
13.3 No Liability for Conduct of Other Users. YOUARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF SERVICES, INCLUDING CUSTOMERS. YOU UNDERSTAND THAT HOPPS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF SERVICES. HOPPS DOES NOT GUARANTEE OR WARRANT ANY USER’S PERFORMANCE OR OUTCOME OR QUALITY OF ANY SERVICE PROVIDER SERVICES.
13.4 Third Party Materials. As apart of the Services, you may have access to materials that are provided or hosted by another party. You agree that it is impossible for Hopps to monitor such materials and that you access these materials at your own risk.
14. LIMITATION OF LIABILITY.
14.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL HOPPS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA,INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT HOPPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF AN HOPPS PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A HOPPS PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A HOPPS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.2 Cap on Liability. TOTHE FULLEST EXTENT PROVIDED BY LAW, HOPPS PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAYABLE BY Hopps TO you FOR PERFORMANCE OF THE SERVICE PROVIDER SERVICES IN ACCORDANCE WITH THIS AGREEMENT. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN HOPPS PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY AN HOPPS PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY AN HOPPS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OFTHE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OFTHE BARGAIN BETWEEN HOPPS AND YOU.
15. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Hopps’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Hopps by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on theServices in a way that constitutes copyright infringement, please provide ourCopyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Hopps’s CopyrightAgent for notice of claims of copyright infringement is as follows: ARL Technologies, Inc., Attn: Copyright Agent
16. MONITORING AND ENFORCEMENT. Hopps reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion;(b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates the Agreement, infringes or violates any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Hopps;(c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or(d) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. If Hopps becomes aware of any possible violations by you of the Agreement, Hopps reserves the right to investigate such violations. If, as a result of the investigation, Hopps believes that criminal activity has occurred, Hopps reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Hopps is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Hopps’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii)respond to any claims that Your Content violates the rights of third parties,(iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Hopps, its Registered Users or the public, and all enforcement or other government officials, as Hopps in its sole discretion believes to be necessary or appropriate.
17. TERM AND TERMINATION.
17.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remains in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
17.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
17.3 Termination of Services by Hopps. Hopps may terminate this Agreement at any time upon notice to you, including if you have breached this Agreement or if Hopps is required to do sounder applicable law. You agree that all terminations for cause shall be made in Hopps’s sole discretion and that Hopps shall not be liable to you or any third party for any termination of your Account.
17.4 Termination of Services by You. If you wish to terminate the Services provided by Hopps, you may do so by (a) notifying Hopps at email@example.com and (b) canceling your membership.
17.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside yourAccount (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Hopps will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
17.6 No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Hopps community, is discontinued by Hopps due to your violation of any portion of theAgreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Hopps community through use of a different name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Hopps reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
18. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Hopps intends to announce such Services or Content in your country. The Services are controlled and offered by Hopps from its facilities in the United States of America. Hopps makes no representations that the Services are appropriate or available for use in other locations. Those who access or use theServices from other countries do so at their own volition and are responsible for compliance with local law.
19. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“ArbitrationAgreement”) carefully. It requires U.S. users to arbitrate disputes with Hopps and limits the manner in which you can seek relief from us.
19.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Hopps, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify, and (b) you or Hopps may seek equitable relief in court for infringement or other misuse of intellectual property rights. This Arbitration Agreement shall apply, without limitation, to all disputesor claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
19.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our: WeWork Pacific Design Center, 750 N. San Vicente Blvd. Ste. 800 West, West Hollywood, CA 90069. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Hopps will pay them for you. In addition, Hopps will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
19.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Hopps. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim.The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the ArbitrationAgreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
19.4 Waiver of Jury Trial. YOU AND HOPPS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR AJURY. You and Hopps are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.1(Applicability of Arbitration Agreement). An arbitrator can award on an individual basis the same damages and relief as a court and must follow thisAgreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
19.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS,AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in LosAngeles County, California. All other disputes, claims, or requests for relief shall be arbitrated.
19.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this ArbitrationAgreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Hopps username (if any), the email address you used to set up your Hopps account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this ArbitrationAgreement, all other parts of this Agreement will continue to apply to you. Opting out of this ArbitrationAgreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
19.7 Severability. Except as provided in Section 19.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
19.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Hopps.
19.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Hopps makes any future material change to this ArbitrationAgreement, you may reject that change within thirty (30) days of such change becoming effective by writing Hopps at the following address: 750 N San Vicente BlvdSuite 800 West, Los Angeles, CA 90069.
20. THIRD PARTY SERVICES.
20.2 Third Party Websites and Ads. The Services may contain links to third party websites (“Third Party Websites”) and advertisements for third parties (“ThirdParty Ads”). When you click on a link to a Third Party Website or Third Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third Party Websites and Third Party Ads are not under the control of Hopps. Hopps is not responsible for any Third Party Websites or Third Party Ads. Hopps provides these Third Party Websites andThird Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third PartyWebsites or Third Party Ads, or any product or service provided in connection therewith. You use all links in Third PartyWebsites and Third Party Ads at your own risk. When you leave our Website, theAgreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites or Third Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
21. GENERAL PROVISIONS.
21.1 ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
21.2 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Hopps agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles County, California.
21.3 Electronic Communications. The communications between you and Hopps may take place via electronic means, whether you visit the Services or send Hopps e-mails, or whether Hopps posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Hopps in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Hopps provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global andNational Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
21.4 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Hopps’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
21.5 Force Majeure. Hopps shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages, fuel, energy, labor or materials.
Notice. Where Hopps requires that you provide an e-mail address, you are responsible for providing Hopps with your most current e-mail address. In the event that the last e-mail address you provided to Hopps is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by theAgreement, Hopps’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Hopps at the following address: 750 N SanVicente Blvd Suite 800 West, Los Angeles, CA 90069.
21.6 Such notice shall be deemed given when received by Hopps by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
21.7 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
21.8 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
21.9 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the ComplaintAssistance Unit of the Division of Consumer Services of the CaliforniaDepartment of Consumer Affairs by contacting them in writing at 1625North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
21.10 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.