Terms of Use


READ CAREFULLY THIS SERVICE AGREEMENT (“AGREEMENT”), WHICH CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN HOOPLA SOFTWARE, INC. (“HOOPLA”) AND THE CUSTOMER SPECIFICALLY IDENTIFIED IN THE ORDER FORM REFERENCING THIS SERVICE AGREEMENT (“CUSTOMER”), REGARDING ACCESS AND USE OF THE SERVICE. THE PARTY AGREEING TO THESE TERMS ON BEHALF OF CUSTOMER REPRESENTS AND WARRANTS THAT HE/SHE HAS FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS AND ON BEHALF OF CUSTOMER. SELECTING THE “I ACCEPT” CHECKBOX OR BY ACCESSING OR USING THE SERVICE, CREATES A LEGALLY ENFORCEABLE CONTRACT WHERE CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.


IF CUSTOMER DOES NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, PLEASE DO NOT SELECT THE “I ACCEPT” CHECKBOX AND CUSTOMER SHALL BE PROHIBITED FROM ACCESSING OR USING THE SERVICE.

Hoopla and Customer hereby agree as follows:

Pursuant to these Terms of Use, Customer may order from Hoopla licenses to access and use Hoopla’s proprietary software application to be hosted and made available by Hoopla in object code format on a software-as-a-service basis, including any software and the Hoopla website located at www.hoopla.net (collectively, the “Service”). The specifics of each Customer order will be set forth on a written or electronic order form, quote and/or invoice (each, an “Order Form”) provided by Hoopla or made available on the Hoopla website. Terms not defined below shall have the meaning given to them in the Order Form.


1. Subject to Customers compliance with the terms and conditions of these Terms of Use, Hoopla grants Customer a nonexclusive, nontransferable, nonsublicensable right to use and access the Service but solely by Customer employees and individual contractors acting for Customer’s exclusive benefit, and only for Customer’s internal business purposes and up to the applicable number of licenses purchased (i.e., the right to add additional licenses for additional fees), each as set forth in the applicable Order Form. User names and passwords may not be shared with any individual who is not an authorized user. Customer shall not (i) rent, lease, sublicense, distribute, resell, transfer, copy, modify, create derivative works of or time-share the Service, otherwise commercially exploit or make the Service available to any third party or (ii) except to the limited extent any of the following are expressly prohibited by law, decompile, disassemble, reverse-compile, reverse-assemble or otherwise reverse-engineer (or otherwise use any similar means to discover the source code of) any aspect of the Service , or (iii) permit anyone else to do any of the foregoing. Customer may not use the Service to develop a competing product or service. Customer agree not to access the Service by any means other than through the interface that is provided by Hoopla for use in accessing the Service.

Customer may not use the Service to do any of the following: (a) send communications which are unlawful, threatening, abusive, harassing, defamatory, vulgar, obscene, offensive, libelous, or that may invade another's right of privacy or publicity; (b) utilize the intellectual property of any other person or entity without their prior and explicit written permission; (c) violate any law, rule or regulation or advocate any activity that does so; (d) solicit funds, goods, or services (including, but not limited to, sweepstakes, contests or pyramid schemes); (e) transmit viruses or corrupted data or otherwise burden or interfere with the operation of the Service or any other party’s site or service; (f) adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; or (g) collect or store user names, email addresses or any other personally identifiable information about any user without their explicit permission and in all cases in compliance with applicable laws and regulations.



2. Ownership. Customer acknowledges that the Service is the proprietary intellectual property of Hoopla or its licensors. Customer may not remove or modify any copyright and other proprietary notices in connection with the Service. Customer hereby grants Hoopla the right to use data and information we collect from the Service (but only in an aggregate or compiled form that does not identify Customer) which we may use to improve the products and services we offer, and to improve the overall experience of the Service. No rights or licenses are granted to Customer other than the express rights granted in these Terms of Use.



3. Customer Responsibilities. Customer acknowledges that the Service may integrate with one or more third party data providers (each, a “Third Party Provider”) and Customer is solely responsible for the following: (a) having Internet access and an active Third Party Provider account, if applicable, in order to use the Service (and for all costs in connection with such access); (b) ensuring that all registration and account information and data are current and accurate and that Customer has backed-up all such information; (c) managing all account activity; (d) maintaining the confidentiality and security of Customer username, password and account information; and (e) securing all consents and permissions to enable Customer to maintain Customer Third Party Provider accounts, if applicable, and to allow Hoopla to access the data in such Customer Third Party Provider accounts.

Customer is solely responsible for all data, information, feedback, suggestions, text, content and other materials that Customer uploads, posts, delivers, provides or otherwise transmits or stores (hereafter “post(ing)”) in connection with or relating to the Service (“Customer Content”). Hoopla reserves the right to access Customer account in order to respond to Customer requests for technical support and as otherwise necessary or useful to provide Customer the Service. Hoopla has the right, but not the obligation, to monitor the Service or Customer Content.



4. Payment. Customer agrees to pay to Hoopla all fees set forth in an Order Form for the duration of the applicable Subscription Term specified in the Order Form. In the event that Customer exceeds the quantity of licenses specified in any Order Form, Hoopla will invoice Customer, and Customer shall pay Hoopla, for such additional licenses at the same per-license fee set forth in the Order Form, adjusted on a pro rata basis for the then-remaining portion of the current Subscription Term. To the extent such fees are to be payable by credit card, Customer will be required to provide Hoopla information regarding Customer credit card or other payment instrument. Customer (i) represent and warrant to Hoopla that such information is true and that Customer are authorized to use the payment instrument and (ii) hereby authorize Hoopla to bill Customer payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until Customer terminates Customer account, and Customer further agree to pay any charges so incurred. Customer will promptly update Customer account information with any changes (for example, a change in Customer billing address or credit card expiration date) that may occur. Customer agrees to pay Hoopla all fees in accordance with the terms of the Order Form and these Terms of Use. If Customer disputes any charges Customer must let Hoopla know within sixty (60) days after the date that Hoopla invoices Customer. If at any time Customer are overdue on Customer account, Hoopla may suspend Customer access to the Service and/or terminate these Terms of Use, and in any such case we are not responsible for maintaining Customer account data.



5. Security. Hoopla utilizes generally-accepted security measures (such as SSL encryption) to protect against the misuse or unauthorized disclosure of Customer Content. However, Customer understands that the operation of the Service, including Customer Content, may involve (a) encrypted transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) encrypted transmission to Hoopla’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service, and there can be no assurance that such elements will always be secure.



6. Confidentiality. “Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under these Terms of Use. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.



7. Subscription Term; Termination.Unless otherwise set forth in the Order Form, the Subscription Term shall automatically renew for successive periods equal to the term specified in the Order Form at the prices published by Hoopla applicable to such successive periods or as otherwise set forth in the applicable Order Form, unless either party notifies the other party of its intent not to renew at least thirty (30) days prior to the conclusion of the then–current term. Any such renewal shall be based upon the total of all initial and additional Users that have been added to the Service during the preceding Subscription Term. Customer has the right to terminate these Terms of Use at any time during the Subscription Term in the event that Hoopla has materially breached these Terms of Use and does not cure such breach within thirty (30) days following notice from Customer. Hoopla reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate Customer account (any part thereof) or use of the Service and remove and discard any Customer Content in the Service if Hoopla believes that Customer have violated these Terms of Use. Hoopla shall not be liable to Customer or any third party for any modification, suspension or discontinuation of the Service. Hoopla will use good faith efforts to contact Customer to warn Customer prior to suspension or termination of Customer account by Hoopla. All Customer Content on the Service (if any) may be permanently deleted by Hoopla thirty days after any termination of Customer account in its sole discretion. Except as provided in this Section 7, all fees paid are non-refundable and non-cancelable. All accrued rights to payment and the terms of Section 2, 3, 5-10 and 12 shall survive termination of these Terms of Use.



8. Representations and Warranties. Each party represents and warrants that it has full power and authority to enter into these Terms of Use. Hoopla represents and warrants that it will perform the Services in a professional and workmanlike manner. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE SERVICE IS PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS. NEITHER HOOPLA NOR ANY OF ITS VENDORS MAKES ANY WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT) WITH RESPECT TO THE SERVICE OR ANY RESULTS OBTAINED FROM THE USE OF THE SERVICE OR REPORTS. SPECIFICALLY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER HOOPLA NOR ITS VENDORS IS LIABLE IN ANY WAY FOR (A) THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR ANY OTHER ASPECT OF ANY SERVICES OR INFORMATION PROVIDED BY APPLICABLE THIRD PARTY PROVIDERS OR ANY OTHER THIRD PARTY, EVEN IF DELIVERED OR OTHERWISE PROVIDED VIA THE SERVICE, OR (B) ANY THIRD-PARTY WEB SITES OR CONTENT.



9. Indemnification. Subject to Customer’s obligations in this Section, Hoopla will defend Customer from and against all third party claims, suits and proceedings brought against Customer by such third party that Customer’s use of the Service in accordance with this Terms of Use and Hoopla’s documentation infringes such third party’s intellectual property rights, and will indemnify and hold Customer harmless against any resulting liabilities, losses, damages and costs (including reasonable attorneys’ fees) finally awarded or included as part of a final settlement (collectively, “Claims”). The foregoing obligations do not apply with respect to any portions or components of the Service to the extent it is based upon: (a) any materials, software or other information (including, but not limited to Customer Content) that have been altered by Customer or any party other than Hoopla where the alleged infringement relates to such alteration; (b) the combination of the Service or any related materials, software or information with any items not provided by Hoopla where the alleged infringement relates to such combination; or (c) use of the Service or any related materials, software or information after receiving notice from Hoopla that they may give rise to any such claim, or (d) where Customer’s use of the Service is not strictly in accordance with these Terms of Use . Customer will defend Hoopla from and against all Claims brought against Hoopla arising or resulting from Customer’s misuse of the Service, Customer’s breach of these Terms of Use, or any Claims that Customer Content violates any third party rights. The indemnified party shall: (i) promptly notify the indemnifying party in writing of any claim, suit, or proceeding for which indemnity is claimed; (ii) cooperate reasonably with the indemnifying party at the latter’s expense; and (iii) allow the indemnifying party to control the defense and any settlement of such Claim. The indemnified party will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense. The indemnifying party will not settle any Claim requiring the indemnifying party to admit any liability (whether civil or criminal) without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld. This Section 9 states the sole remedies and obligations of the parties concerning intellectual property claims.



10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDING VIOLATIONS OF SECTION 6, IN NO EVENT SHALL EITHER PARTY (OR ANY OF ITS THIRD-PARTY PROVIDERS) HAVE ANY LIABILITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES RELATING TO LOSS OF BUSINESS, PROFITS, GOODWILL, DATA, PROGRAMS OR INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE OR ANY DATA (INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT. EXCLUDING VIOLATIONS OF SECTION 9, HOOPLA’S LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THESE TERMS OF USE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM IN QUESTION FIRST AROSE OR, IF GREATER, ONE HUNDRED ($100) U.S. DOLLARS.



11. Privacy. Please visit our privacy policy to understand how Hoopla collects and uses personal information. Hoopla’s privacy policy is incorporated into these Terms of Use.



12. Miscellaneous. Notices delivered under these Terms of Use must be given in writing and will be effective when received, provided that Hoopla may provide notices via email, a posting in Customer user account, display of a notice (or a link to a notice) on the Service, or via first-class mail or overnight courier to the address in Customer account information. These Terms of Use, together with any written agreement between Hoopla and Customer, contain the entire understanding of the parties with respect to the transactions and matters contemplated hereby, supersedes all previous communications, understandings and agreements (whether electronic, oral or written). Hoopla may include Customer’s name in its published client lists, but will not issue a press release or any other publicity referring specifically to Customer without Customer’s prior written consent. Hoopla is an independent contractor and not an employee or agent of Customer. Neither party is authorized to assume or create any obligation or responsibility on behalf of, or in the name of, the other or to bind the other in any manner. Neither party may assign or transfer these Terms of Use without the other party’s prior written consent, except in connection with a merger or the sale of all or substantially all of the assets, business, or stock of such party, which may occur without such consent. These Terms of Use will be construed in accordance with the laws of the State of California as applied to contracts entered and performed entirely in California between two of its residents. Any dispute arising from or relating to the subject matter of these Terms of Use that cannot be resolved within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other (the last day of such sixty (60) day period being herein referred to as the “Arbitration Date”), shall be finally settled by arbitration in San Jose, California, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes, who may or may not be selected from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the number and identity of the arbitrators within fifteen (15) days following the Arbitration Date, then a single arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. Any arbitrator so selected shall have substantial experience in the software industry. The arbitrator(s) shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator(s) may determine. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to at any time to institute an action in any court of proper jurisdiction for a preliminary injunction or any other form of equitable relief. For all purposes of this Section 12, the parties consent to exclusive jurisdiction and venue in the United States federal Courts located in the Northern District of California.