IMPORTANT – – READ CAREFULLY: Your access to and use of the Hope Portal Services Platform (the “HP Solution”) provided or made available to you (“you”) by Hope Portal Services, Inc. d/b/a Hope Trust (“Hope Trust”) shall be subject to your compliance in all respects with all terms and conditions of this Software as a Service Agreement (“SAAS”). This SAAS constitutes and expresses the entire agreement and understanding between you and Hope Portal with respect to your access to and use of the HP Solution and supersedes all previous communications, representative presentations, or agreements, whether written or oral, with respect to the subject matter hereof.
BY CLICKING ON THE “I AGREE” BUTTON, YOU ARE AGREEING THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS SAAS IF YOU ARE ENTERING INTO THIS SAAS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS SAAS, IN WHICH CASE “YOU” OR “YOUR” SHALL REFER TO YOUR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS SAAS OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, CLICK THE “I DO NOT AGREE” BUTTON AND YOU WILL NOT BE GRANTED ACCESS TO USE THE HP SOLUTION.
DEFINITIONS. The capitalized terms below will have the following meanings when used in this SAAS. All other capitalized terms shall have the meaning ascribed to them throughout this document.
“Documentation” means all printed or electronic material relating to the HP Solution provided by Hope Trust. “HP Platform” means a website, intranet or extranet site, WAN or LAN network site, other online facility, or pages or portions thereof, through which you are provided remote access to the functionality of the HP Solution. “User Data” means any data or information supplied by you to Hope Trust or to or through the HP Solution, and any reports, data queries, responses to data queries, or other output generated by the HP Solution using or based on such data or information. LICENSE. Subject to the conditions herein, Hope Trust hereby grants you, and you hereby accept, a nontransferable, nonsublicenseable, nonexclusive, limited license to access and use the HP Solution only though the HP Platform, solely for your personal use or your internal business operations. Other than your use of the HP Solution as permitted under the terms and conditions of this SAAS, you may not resell, distribute, use on a timeshare or service bureau basis, or use to operate a web-site or otherwise generate income from, the HP Solution. The HP Solution and this SAAS may not be sold, assigned, leased, sublicensed, or otherwise transferred or made available for use by third parties, in whole or in part, by you without Hope Trust’s prior written consent. You shall not (a) create derivative works based on the HP Solution, (b) copy, frame, mirror or utilize any framing techniques to enclose any part or content of the HP Solution, including any trademarks or service marks contained therein, (c) reverse engineer, decompile or otherwise attempt to discover the source code of, the HP Solution, (d) access the HP Solution in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of any HP Solution, (e) use the HP Solution to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (f) use the HP Solution to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (g) interfere with or disrupt the integrity or performance of any HP Solution or third-party data contained therein, or (h) attempt to gain unauthorized access to any HP Solution or their related systems or networks. You hereby acknowledge and agree that Hope Trust and its licensors are the sole owners of all copyright, patent, trademark, trade secret and other proprietary or intellectual property rights in and to the HP Solution, including but not limited to the structure, organization, design, algorithms, methods, templates, data models, data structures, flow charts, logic flow, screen displays, and report formats associated therewith and trademarks and patents associated or displayed therein. Hope Trust and its licensors reserve all rights in and to the HP Solution and the HP Platform not expressly granted to you hereunder. You hereby grant to Hope Trust a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the HP Solution any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of the HP Solution. 2.4 You shall contact Hope Trust Customer Support at 833-467-3878 or email@example.com if you become aware of misuse of the HP Solution by any person. Hope Trust cannot guarantee the accuracy of any information submitted by you or any other person, nor any identity information about any other end-user. Hope Trust or its licensors may investigate any complaints and violations that come to Hope Trust’s or its licensors’ attention and may take any action that they believe is appropriate, including, but not limited to issuing warnings, terminating accounts and/or user profiles or reporting you or your users to law enforcement authorities.
LOGIN. You will be issued a username and password (collectively, “Login”) that will allow you to access the HP Solution through the HP Platform. You shall not assign or transfer your Login to any other person or entity without Hope Trust’s permission. You shall maintain and be responsible for the security of your Login and shall be liable for any access or use occurring through your Login. You must promptly inform Hope Trust of any apparent breach of security, such as loss, theft or unauthorized disclosure or use of your Login of which you are aware. USER OBLIGATIONS. Except as otherwise provided herein, you shall have sole responsibility for acquiring and maintaining your own technology environment, including but not limited to PC’s, laptops, operating systems, servers, Internet access, local area networks and wide area networks. You shall also be responsible for making any necessary modifications to firewalls, proxy servers and other hardware and software necessary to use or access the HP Solution and/or the HP Platform. You agree that you are solely responsible for any and all User Data displayed, uploaded, exchanged or transmitted on, through or by the HP Platform. Neither Hope Trust, its licensors, suppliers or partners, or any of its or their affiliates, suppliers or resellers accept, and each hereby expressly disclaims, any and all liability with respect to same. Under no circumstances will Hope Trust, its licensors, suppliers or partners, or any of its or their affiliates, suppliers or resellers be liable in any way for the User Data, including, but not limited to, any errors or omissions in any User Data, or any loss or damage of any kind incurred as a result of the use of, access to, denial of access to or loss of the User Data. You acknowledge and agree that the HP Solution may be subject to export controls imposed by the United States Office of Export Administration and related law. You certify that neither the HP Solution nor any other technical data nor the direct product thereof (i) is intended to be used for any purpose prohibited by any applicable export law, or (ii) is intended to be shipped, transmitted or exported either directly or indirectly out of the United States. You further certify that you will not permit the HP Solution or any other technical data nor the direct product thereof to be resold or exported unless Hope Trust has specifically consented in writing to any such resale or export and (i) you or any other party reselling or exporting first obtains written permission to do so from the United States Office of Export Administration and other appropriate governmental agencies, or (ii) a general license exempting such resale or export from the requirement for such permission is in effect and the requirements of such license are fully complied with. You shall not delete, remove, modify, obscure, fail to reproduce or in any way interfere with any proprietary, trade secret, or copyright notice appearing on or incorporated in the HP Solution or the HP Platform The HP Solution constitutes a “Commercial Item,” consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are defined the U.S. Code of Federal Regulations. Consistent with such provisions, to the extent that the HP Solution is licensed to United States Government end users, any license shall be limited to only those rights granted to all other end users, according to the terms and conditions contained in this SAAS. TERMINATION. This SAAS shall terminate immediately upon the earlier of: a breach of this SAAS by you; or expiration or termination of the SAAS. If you entered into this SAAS on behalf of a company or other legal entity, Hope Trust may terminate this SAAS if such company or legal entity becomes insolvent or bankrupt or ceases to do business; becomes unable or admits in writing to its inability to pay all debts as they mature; makes a general assignment for the benefit of or enters into any composition or arrangement with creditors; authorizes, applies for, or consents to the appointment of a receiver, trustee, or liquidator of all or a substantial part of its assets or has proceedings seeking such appointment commenced against it which are not terminated within thirty (30) days of such commencement; files a voluntary petition under any bankruptcy or insolvency law, or has proceedings under such laws instituted against it which are not terminated within thirty (30) days of such commencement. Notwithstanding anything herein to the contrary, Hope Trust and/or its licensors may suspend, limit and/or terminate your access to or use of the HP Solution, or any portion thereof, in the event of a breach by you or occurring under your account. Hope Trust and its licensors shall have no liability to you or any third party for any termination of this SAAS or suspension of access or use of any HP Solution. Upon termination or expiration of this SAAS, you shall immediately (a) discontinue all use of the HP Solution and the HP Platform, and (b) at your expense, return to Hope Trust all Documentation. Notwithstanding anything to the contrary herein, the provisions of Sections 2.2, 2.3, 2.4, 4, 5, 6, 7, 8, 9, and 10 hereof, as well as any other provisions of this SAAS necessary to interpret the respective rights and obligations of the parties hereunder, shall survive the expiration or termination of this SAAS. Confidential and Proprietary Information. You agree to hold the HP Solution in confidence, and to protect the confidential nature thereof, and shall not disclose any trade secrets contained, embodied or utilized therein, to anyone other than your authorized users having a need for such disclosure, and then only to allow use of the HP Solution as authorized herein. You shall take all necessary steps to ensure that the provisions of this Section are not violated by any of your employees, agents, consultants, contractors, or any other person under your control or in your service. Under no circumstances shall you permit any competitors of Hope Trust to access or use the HP Solution or the HP Platform. The obligations set forth in this Section 6.0 shall survive expiration or termination of this SAAS. DISCLAIMER OF WARRANTY. THE HP SOLUTION IS PROVIDED BY HOPE TRUST, ITS LICENSORS, SUPPLIERS, AND PARTNERS AND EACH OF ITS AND THEIR AFFILIATES, SUPPLIERS AND RESELLERS, “AS IS” WITHOUT WARRANTY OF ANY KIND, AND HOPE TRUST, ITS LICENSORS, SUPPLIERS, AND PARTNERS AND EACH OF ITS AND THEIR AFFILIATES, SUPPLIERS AND RESELLERS HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER HOPE TRUST NOR ITS LICENSORS, SUPPLIERS, OR PARTNERS, NOR ANY OF ITS OR THEIR AFFILIATES, SUPPLIERS AND RESELLERS WARRANT THAT: (A) OPERATION OF THE HP SOLUTION SHALL BE UNINTERRUPTED OR ERROR FREE, (B) FUNCTIONS CONTAINED IN THE HP SOLUTION SHALL OPERATE IN COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU, OR (C) THE HP SOLUTION WILL MEET YOUR REQUIREMENTS. You are solely responsible for the accuracy and adequacy of the User Data and all other information and data furnished for processing with the HP Solution. To the extent that data is being transmitted over the Internet hereunder, you acknowledge that Hope Trust has no control over the functioning of the Internet and Hope Trust makes no representations or warranties of any kind regarding the performance or security of the Internet. The successful operation of the HP Solution is dependent on your use of proper procedures and systems and input of correct data. If at any time you are dissatisfied with the HP Solution, or any portion thereof, your sole remedy is to cease using the HP Solution. You acknowledge and agree that Hope Trust’s licensors have no control over how you interact with Hope Trust, the HP Platform, or any other product or service offered by or through Hope Trust. LIMITATION OF LIABILITY; DISCLAIMER OF DAMAGES. IN NO EVENT WILL HOPE TRUST, ITS LICENSORS, SUPPLIERS, OR PARTNERS OR ANY OF ITS OR THEIR AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST BUSINESS, REVENUES, DATA OR PROFITS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, WHETHER BASED ON CLAIMS FOR BREACH OF CONTRACT, TORT, STRICT OR PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF ANY OF THE FOREGOING HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HOPE TRUST, ITS LICENSORS, SUPPLIERS, OR PARTNERS OR ANY OF ITS OR THEIR AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF THE HP SOLUTION, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, OR DELAY IN THE DELIVERY OF THE HP SOLUTION (OR ANY REVISIONS OR UPDATES THERETO) UNDER THIS SAAS. THE MAXIMUM LIABILITY OF HOPE TRUST, ITS LICENSORS, SUPPLIERS, AND PARTNERS AND ANY OF ITS OR THEIR AFFILIATES, SUPPLIERS OR RESELLERS UNDER THIS SAAS SHALL BE LIMITED TO FEES PAID BY YOU TO HOPE TRUST DURING THE THREE (3) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED. You specifically understand and agree that Hope Trust, in providing the HP Solution, may serve as a conduit for information provided by third parties and that Hope Trust may rely on such information and services and products provided to it by third parties. Hope Trust assumes no responsibility or liability for the accuracy, completeness, propriety, necessity or advisability of the medical or other information which may be provided, directly or indirectly, to you, or of the medical or other services to which such information may relate. You further understand and agree that Hope Trust shall have no responsibility of any kind to you, your employees, agents, contractors or any other person, firm, corporation or entity, for any information or services provided by or through any HP Solution. The HP Solution is not intended to supplant or replace the professional judgment of you or your employees, agents. INDEMNITY. You hereby agree to defend, indemnify and hold Hope Trust, its licensors, suppliers and partners and its and their respective officers, directors, managers, members, employees, agents, affiliates, suppliers, resellers and subcontractors harmless from and against any losses, liabilities, damages, demands, penalties and expenses (including, without limitation, court costs and attorneys’ fees) arising out of or in connection with (a) access to and use of the HP Solution or the HP Platform by you and/or any third party, whether or not authorized by you, who accesses the HP Solution or the HP Platform by means of the Login provided to you, (b) any breach or alleged breach of this SAAS or any Law by you, (c) any failure of the User Data to be accurate, complete or error-free, or (d) any claim, demand or action alleging any professional, general, statutory or regulatory claim whatsoever, without regard to whether such claim, demand or action is alleged to arise or arising by negligent, intentional or reckless conduct or by action or omission. MISCELLANEOUS. Assignment; Binding Effect. This SAAS and your right to access and use the HP Solution and HP Platform may not be assigned or transferred by you, in whole or in part, whether by operation of law or otherwise, without the prior written consent of Hope Trust. Hope Trust shall have the right to assign this SAAS, in whole or in part, to an affiliate or, in whole, to a third party in connection with a sale of assets or other transfer or disposition of its business operations. Any attempted assignment in violation of this Section 10(a) shall be null and void and of no force or effect. Force Majeure. Hope Trust shall not be liable for non-performance or delays caused by acts of God, wars, terrorist acts, riots, strikes, fires, shortage of labor or materials, labor disputes, governmental restrictions, epidemics, pandemics, health emergencies, failures or interruptions of the Internet, utilities, communications, satellite or network services (including those of Hope Trust and its service providers), or other causes beyond Hope Trust’s reasonable control. Equitable Relief. You agree that any violation by you of the provisions or covenants of this SAAS contained in Sections 2 (License) and 6 (Confidential and Proprietary Information) will cause immediate and irreparable harm to Hope Trust for which money damages will not constitute an adequate remedy at law. Therefore, you agree that, in the event you breach or threaten to breach said provisions or covenants, Hope Trust shall be entitled to injunctive and/or other preliminary or equitable relief, in addition to any other remedies available at law, without having to prove actual damages or to post a bond. Third Party Beneficiaries. Hope Trust’s licensors, suppliers and partners and their respective affiliates, suppliers and resellers are all third-party beneficiaries of this SAAS, and shall have the right to enforce the provisions of this SAAS directly. Except for the foregoing and except as otherwise set forth herein, nothing in this SAAS shall confer any rights upon any person other than the parties and their respective successors and permitted assigns. Severability. Any provisions of this SAAS that are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions of this SAAS or affecting the validity or enforceability of such provisions in any other jurisdiction. If a court of competent jurisdiction declares any provision of this SAAS to be invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to reduce the scope, duration, or area of the provision, to delete specific words or phrases, or to replace the provision with a provision that is valid and enforceable and that comes closest to expressing the original intention of the parties hereto, and this SAAS shall be enforceable as so modified. Entire Agreement; Amendment. Hope Trust reserves the right to amend, modify or supplement this SAAS at any time, which amendments, modifications or supplements shall be effective when posted on the HP Platform. You shall be solely responsible for monitoring the HP Platform for such amendments, modifications and/or supplements. Waiver. No term or provision of this SAAS will be considered waived and no breach will be considered consented to by Hope Trust, unless such waiver or consent is in a writing signed by Hope Trust. No consent to or waiver of a breach of this SAAS by Hope Trust, whether express or implied, will constitute a consent to, waiver of, or excuse for any other, different, or subsequent breach of this SAAS by you. Headings. Headings used in this SAAS are for convenience of reference only and shall in no way be used to construe or limit the provisions herein. LEGAL DISPUTES PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND HOPE TRUST HAVE AGAINST EACH OTHER ARE RESOLVED.
You and Hope Trust agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Hope Trust (including any claim or dispute between you and a third-party agent of Hope Trust) that relates in any way to or arises out of this SAAS or your use of or access to the Services will be resolved in accordance with the provisions set forth in this Section.
(a) Applicable Law. You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this SAAS and any claim or dispute that has arisen or may arise between you and Hope Trust, except as otherwise stated in this SAAS.
(b) Agreement to Arbitrate. You and Hope Trust each agree that any and all disputes or claims that have arisen, or may arise, between you and Hope Trust (including any disputes or claims between you and a third-party agent of Hope Trust) that relate in any way to or arise out of this SAAS or your use of or access to the Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
(c) Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND HOPE TRUST AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND HOPE TRUST AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Hope Trust’s right to appeal the court’s decision. All other claims will be arbitrated.
(d) Arbitration Procedures. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this SAAS. The AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this SAAS. A party who intends to seek arbitration must first send to the other, by certified mail, a Notice of Dispute (“Notice”). The Notice to Hope Trust should be sent to Hope Trust Inc., 101 Crawfords Corner Road, Bell Works Suite 4-101R, Holmdel, NJ 07733, Attn: General Counsel. Hope Trust will send any Notice to you to the physical address we have on file associated with your Hope Trust account.
If you and Hope Trust are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Hope Trust may initiate arbitration proceedings. The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Hope Trust may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Hope Trust subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(e) Costs of Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this SAAS.
(f) Severability. With the exception of any of the provisions in the Section entitled “Prohibition of Class and Representative Actions and Non-Individualized Relief”, if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this SAAS shall still apply.
(g) Future Amendments to this Section. Notwithstanding any provision in the SAAS to the contrary, you and we agree that if we make any amendment to this Legal Disputes Section (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Hope Trust prior to the effective date of the amendment. We will notify you of amendments to this SAAS by posting the amended terms on www.HopeTrust.com at least 30 days before the effective date of the amendments. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
(h) Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Legal Disputes section above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the SAAS or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Hope Trust must be resolved exclusively by a state or federal court located in the State of Delaware. You and Hope Trust agree to submit to the personal jurisdiction of the courts located within the State of Delaware for the purpose of litigating all such claims or disputes.
(i) Limitations Period. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to use of the Services or this SAAS must be filed within one (1) year after such claim or cause of action arose or be forever barred.