hopTo TERMS OF SERVICE

Effective Date: October 10, 2013

Welcome to hopTo! We invite you to access our website and use the hopTo Service, but please note that your invitation is subject to your review and agreement with these Terms of Service. Please review these Terms carefully.

The hopTo Terms of Service

The Terms of Service constitutes a contract between you, and hopTo, Inc. (“hopTo”, “we” or “us”). The Terms include the provisions set forth in this document and in the hopTo Privacy Policy [http://hopto.wpengine.com/privacy-policy/] and other terms or conditions that may be presented to you from time to time in connection with specific Service offerings (all of which we collectively refer to as the “Terms of Service” or “Terms”). If you do not agree to these Terms, you do not have the right to access or use our Service. If you do use our Service, your use shall be deemed to confirm your acceptance of the Terms and your agreement to be a party to this binding contract.

By using the Service, you acknowledge, accept and agree with all provisions of the Privacy Policy, including, without limitation, the use and treatment of your Account Information and your Content in accordance with such Privacy Policy.

About the hopTo Service

The hopTo Service consists of hopTo Software (defined below), and other products, services and web sites hosted or made available by hopTo, which enable you to do many wonderful things on multiple computer devices and systems (collectively, the “Service”). In exchange for being enabled to use the Service, you agree to abide by these Terms.

Changes to these Terms of Service

Changes in these Terms are almost certain to happen, due to changes in our Service and the laws that apply to us and you. If we make a change, we’ll do our best to provide you with advance notice, although in some situations, such as where a change is required to satisfy applicable legal requirements, an update to these Terms may need to be effective immediately. We’ll announce changes here at our site, and we also may elect to notify you of changes by sending an email to the address you have provided to us. We will also try to explain the reasons for the change.

If we do update these Terms, you are free to decide whether to accept the terms or to stop using our Service (see “How You Close Your Account” below); your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described here, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.

Creating a hopTo Account, and getting hopTo Software

First, you need to create a hopTo account. You create an account by providing us with a valid email address, and creating a password. We refer to this as your “Account Information.” You are responsible for maintaining the accuracy, completeness and confidentiality of your Account Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure. If you discover any unauthorized use of your Account Information or suspect that anyone may be able to access your private Content, you should immediately change your password and notify our Customer Support team.

Second, you need to install our client software on your computers, tablets and other devices. Obtaining those devices and paying for their connectivity and data plans is your responsibility. hopTo also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.

Rights to the hopTo Service

Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to these Terms. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the hopTo Software provided to you by or on behalf of hopTo, for the sole purpose of enabling you to use the hopTo Software and enjoy the benefit of the Service, subject to any applicable license terms provided with the hopTo Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in hopTo or the Service.

Your Data Is Yours

You retain copyright and any other rights you already held in your Content before you submitted, posted or displayed it on or through the Service. But you do have to grant hopTo a limited license, as described below, so we can make your data accessible and usable on the Service. Other than this limited license and other rights you grant in these Terms, hopTo acknowledges and agrees that we do not obtain any right, title or interest from you under these Terms in any of your Content.

The License You Grant Back To hopTo

In order to enable hopTo to operate the Service, we must obtain from you certain license and other rights to the Content you submit so that our processing, maintenance, storage, technical reproduction, back-up and distribution and related handling of your Content doesn’t infringe applicable copyright and other laws. This means that by using the Service and uploading Content, you grant hopTo a license to display, perform and distribute your Content and to modify (for technical purposes, e.g., making sure content is viewable on smart phones as well as computers) and reproduce such Content to enable hopTo to operate the Service. You also agree that hopTo has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.

You agree that these rights and licenses are royalty free, irrevocable and worldwide (for so long as your Content is stored with us), and include a right for hopTo to make such Content available to, and pass these rights along to, others with whom hopTo has contractual relationships related to the provision of the hopTo Service, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if hopTo determines such access is necessary to comply with its legal obligations.

If you elect to use any third party service or application that is integrated with hopTo, you also agree that the licenses granted to hopTo in the preceding paragraph shall apply to Content that is submitted or uploaded through such third party service or application. If the third party service or application you elect to use would access or extract Content, you grant hopTo the right and license to enable such access to your Content.

Because we rely upon your rights to upload and distribute your Content, you represent and warrant to hopTo that you have the unfettered legal rights and authority to submit your Content to hopTo, and to make any publication or other distribution of that Content in your use of the Service. You also represent to us that, by submitting Content to hopTo and granting hopTo the rights described in these Terms, you are not infringing the rights of any person or third party.

Finally, you understand and agree that hopTo, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.

Rules of Conduct on hopTo

Your use of the Service must be in accordance with these Terms. When it comes to your use of hopTo, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content – such as text, images, software, videos and anything else you can think of, no matter what the form or technical structure (collectively, “Content”) – created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third party application or services integrated with hopTo.

You agree that when you use the Service, you won’t:

Use the Service for Anything Illegal – or to Promote Illegal Activities. So don’t do things like post instructions on how to assemble bombs; promote harm to any person, group of people (or animals, for that matter), or any governmental or legal entity; or stalk or harass anyone. This also means don’t violate laws or regulations applicable to you.

Violate Users’ Rights. Don’t invade another’s privacy, and don’t use someone’s personal data for commercial purposes or in some other manner that violates their rights or applicable laws. This also means you shouldn’t upload, post or otherwise transmit any Content that you don’t have a right to transmit under any law or under contractual or fiduciary relationships (e.g., inside information, confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).

Annoy or Scam Our Users. Don’t upload, post or otherwise transmit any unsolicited or unauthorized advertising or promotional materials. Don’t try to solicit users’ passwords or personal information. And don’t use the Service as a forwarding means to another website.

Violate IP Rights. Don’t upload, post or transmit Content that infringes the copyright, trademark or other intellectual property or proprietary rights of another party.

Try to Damage or Interfere with Our Service. Don’t ruin this for everyone. Don’t upload, promote or distribute software viruses or any other kind of computer code, files or programs that attempt to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Don’t interfere with our servers or networks connected to the Service. Don’t try to disguise the origin of any Content transmitted through the Service. And unless hopTo has given you its prior approval, don’t access or attempt to access the Service by any means other than through the interface provided by hopTo (including through the use of scripts, web crawlers or the like).

Attempt to Copy or Resell Our Service. Don’t try to reproduce hopTo or otherwise try to exploit any part of, use of or access to the Service. In addition, don’t attempt to prevent or impair the full and complete display of advertisements or other messaging within the Service.

Pretend to Be Someone You’re Not. Just be yourself. And in particular, don’t pretend to work at or be affiliated with hopTo if that’s not true.

Exceed the Scope of Your Authorized Use. Don’t access or use features that you don’t have a right to use; don’t mess around with other users’ Content if they haven’t given you permission to do so.

Access to Your Content By Others

Except as described here and in our Privacy Policy, unless you elect to enable others to view or have access to the Content you submit to the Service, no one else should see your Content without your consent. In addition, hopTo enables you to use a variety of third party services and applications that interact with the Service and your Content, and you should review the access rights you provide to those services or applications, as you may enable them to access your Content through your agreements with those parties.

Content Rights and Rights To the hopTo Software

While you own the Content you store with hopTo, you acknowledge and agree that hopTo (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is hosted on hopTo’s servers and all software deployed by you or a third party, including the hopTo software applications for compatible computing devices that enable access and use of the Service through such device (the “hopTo Software”).

In agreeing to these Terms, you also agree that the rights in the Service and hopTo Software, including all intellectual property rights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any hopTo Software, unless you are expressly permitted to do so under an open source license or we give you express written permission.

Right to Modify the Service

We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service and any hopTo Software, including changes that may affect the previous mode of operation of the Service. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions and email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice.

You also acknowledge that a variety of hopTo actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that hopTo has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you are a subscriber for hopTo paid Service and find that any such modifications or interruption of the Service adversely affects you, you may notify us, explain the adverse impact the modification has created and, if you desire, request a termination of your paid Service. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification, extend the duration of your paid Service subscription for a period of time equal to the interruption and/or refund a portion of your paid Service subscription fee equal to the remaining unused term of the paid Service subscription, as we determine appropriate.

Right to Engage Third Parties

hopTo may from time to time engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Service to you, and you hereby agree that such third party involvement is acceptable.

Right to Update Our Software.

In connection with any modification of the Service, hopTo may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. hopTo will endeavor to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), hopTo may require you to install the update to continue accessing the Service. In all cases, you agree to permit hopTo to deliver these updates to you (and you to receive them) as part of your use of the Service.

Kids’ Use of hopTo.

Unfortunately, hopTo is not currently directed to children and we expect that the Service will only be used by people over the age of 13. We do not collect any information regarding users under the age of 13.

Where Your Data Goes.

The hopTo Service is available worldwide, but our data processing operations take place in the United States. If you use the Service, you acknowledge that you may be sending electronic communications (including your personal account information and Content), through computer networks owned by hopTo and third parties located in California and other locations in the United States and other countries. As a result, your use of the Service will likely result in interstate and possibly international data transmissions, and your use of the Service shall constitute your consent to permit such transmissions.

How You Can Close Your Account.

You may close your account with our Service at any time, for any reason (or no reason), and you don’t even have to give us notice. However, if you desire to deactivate your account you can sign in at www.hopto.wpengine.com and use the Account Settings page.

hopTo may suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for hopTo suspending or closing your account may include, without limitation: (i) breach or violation of these Terms, (ii) an extended period of inactivity (determined in hopTo’s sole discretion), (iii) your nonpayment of any fees or other sums due hopTo or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof) or (vi) unexpected technical or security issues or problems.

In most cases, in the event we elect to close your account, we will provide at least 30 days advance notice to you at the email address you have provided to us,. After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account.

Contributions.

When you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to hopTo through the “Contact Us,” User Forum or Support interfaces or through any other mechanism (collectively, “Contributions”), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) hopTo is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) hopTo shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) hopTo may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of hopTo without any obligation of hopTo to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from hopTo under any circumstances.

Third-Party Links

We may include or recommend third party resources, materials and developers and/or links to third party websites and applications as part of, or in connection with, the Service. We have no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.

Indemnity

You agree to indemnify and hold hopTo, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.

The Service Is Available “As Is”

YOU EXPRESSLY UNDERSTAND AND AGREE:

(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HOPTO EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

(b) HOPTO DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.

(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HOPTO OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT HOPTO, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF HOPTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE; (v) HOPTO’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.

Exclusions and Limitations

NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Notices

It’s important for you to make sure your Account Information is accurate, complete and up to date. We may provide you with notices by email, regular mail or postings on the web site(s) related to the affected Service.

Except where these Terms specifically provide for use of a different means or address for notice, any notice to hopTo must be delivered by email to compliance@hopto.com. This email address may be updated as part of any update to these Terms of Service. If you are unable to deliver notice via email, you may send a notice to us at the following address (as applicable to your Service provider):

hopTo Inc.
Attn: Compliance Department
51 E. Campbell Ave. Suite 128
Campbell, CA 95008

Governing Law

These Terms and the relationship between you and hopTo (including any dispute) shall be governed in all respects by the laws of the State of California, United States of America, as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to its conflict of law provisions.

If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.

Claims and Disputes

We hope that you will contact us through our customer support team support.hopto.wpengine.com if you have complaints or problems with the Service. If our customer support team is unable to resolve the problem and you wish to pursue a formal claim with hopTo, you agree that any claim or dispute you may have against hopTo must be resolved exclusively by a state or federal court located in San Mateo County, California. You agree to submit to the personal jurisdiction of the courts located within San Mateo County, California for the purpose of litigating all such claims or disputes.

Time Limitations on Claims

You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.

Miscellaneous Stuff

A couple of final, but important, points. These Terms constitute the entire agreement between you and hopTo and govern your use of the Service, except, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and hopTo for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.

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