HAPPY TALKS, LLC
TERMS OF SERVICE
Last Modified: Nov 29th 2022
This TERMS OF SERVICE AGREEMENT any terms expressly incorporated herein (these “Terms”) is a binding contract by and between HAPPY TALKS, LLC, a Georgia limited liability company (“Happy Talks”, “we”, “us” or “our”) and you (“you”, “your”, or “yours”) as an individual User of the Services (as defined below). These terms govern your access to, use of, and interaction with our Services. Throughout these Terms, you and Happy Talks may each be referred to as a “Party” or collectively, the “Parties”.
Please read each of the provisions in these Terms carefully as these Terms form a legally binding agreement between you and us. By using the Services, you are agreeing to these Terms. If you do not agree with these Terms, please do not access or use the Services. The Services are only made available to persons eighteen (18) years of age or older, so if you are younger than eighteen (18) years of age, you must not access or use the Services.
BY REGISTERING TO USE, ACCESSING, OR USING THE SERVICES, BY PURCHASING ANY SUBSCRIPTION PLANS TO THE SAME, OR OTHERWISE INDICATING YOUR ACCEPTANCE TO THESE TERMS WHENEVER THE OPTION IS PRESENTED TO YOU: (A) YOU ARE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTAND THE MOST CURRENT VERSION OF THESE TERMS; (B) YOU ARE REPRESENTING THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER AND OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT WITH US; (C) YOU ARE ACCEPTING TESE TERMS AND AGREEING THAT YOU ARE LEGALLY BOUND BY THESE TERMS; (D) YOU ARE AGREEING THAT THESE TERMS WILL BE DEEMED TO SATISFY ANY REQUIREMENT UNDER APPLICABLE LAW THAT AN AGREEMENT BETWEEN YOU AND US BE IN WRITING; AND (E) YOU ARE AGREEING THAT YOUR ACTIONS IN REGISTERING FOR OR LOGGING INTO THE SERVICES OR OTHERWISE INDICATING YOUR AGREEMENT TO THESE TERMS WILL BE DEEMED TO BE YOUR VALID AUTHENTICATED SIGNATURE FOR PURPOSES OF ANY APPLICABLE LAW REQUIRING THAT THESE TERMS BETWEEN YOU AND US BE SIGNED BY YOU IN WRITING.
IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK ANY BOX TO ACCEPT IT, AND DO NOT ACCESS OR USE THE SERVICES. ACCESSING OR USING THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS.
1. Modification to These Terms.
We may modify these Terms by providing notice of such changes, such as by sending you an email, providing notice through the Services, or updating the “Last Updated” date at the top of these Terms. By clicking on an “I Agree” button or checkbox presented with the modified Terms, or by continuing to access or use of the Services, you confirm your agreement to the modified Terms. If you do not agree to any modification to these Terms, you must stop using the Services. We encourage you to frequently review the Terms to ensure you understand the terms and conditions that apply to your access to, and use of, the Services. If you have any question regarding the use of the Services, please contact us in accordance with Section 17.
2.1 General. Happy Talks connects individuals (the “Users”) with Happy Talks conversation partners (the “Conversation Partners”) for purposes communicating for entertainment purposes, which may include interacting socially, receiving peer support, and general advice in a supportive and uplifting environment (the “Services”). Conversation Partners converse with Users, which may include listening to User general concerns about their own lives and offering reflective listening, motivational interviewing, feedback, and wellness coaching aimed at helping empower and uplift Users. Our Services are limited to providing the communications platform that connects our Users to Conversation Partners. Happy Talks does not verify the skills, degrees, qualifications, credentials or background of any Conversation Partners. By accessing our Services, you acknowledge and agree that Conversation Partners are neither employees, nor agents or representatives of Happy Talks and Happy Talks assumes no responsibility for any act or omission of any such Conversation Partners. If you feel that the conversational services or advisement provided by a Conversation Partner does not meet your expectations or needs, you may, at any time, change to a different Conversation Partner who provides services through our platform.
2.2 No Medical or Mental Health Services. Our Service is strictly intended to provide general social interaction for the entertainment of our Users. While Conversation Partners may offer personal advice, neither the Service nor any advice offered by Conversation Partners should be used as a substitute for any medical or mental health treatment, diagnosis, or other services requiring professional licensure. We are not a social services practice, counseling service, medical provider, or mental health services provider nor engage in patient counseling, drug prescription, or the practice of medicine or other licensed health professions. Conversation Partners are not licensed health care professionals and, as such, are prohibited from providing any medical or mental health advice or information to our Users. Your interactions with Conversation Partners are not intended to be a substitute for professional health care advice, diagnosis or treatment of any health problem, condition, or disease.
2.3 Medical Emergencies. HAPPY TALKS IS PLATFORM THROUGH WHICH USERS MAY COMMUNICATE AND INTERACT WITH CONVERSATION PARTNERS FOR ENTERTAINMENT PURPOSES ONLY. DO NOT USE OUR SERVICE FOR MEDICAL EMERGENCIES. FURTHER, OUR SERVICES ARE NOT A REPLACEMENT OR SUBSTITUTE FOR ANY CONSULTATION, ADVICE, DIAGNOSIS, OR TREATMENT THAT SHOULD BE PROVIDED BY A LICENSED HEALTHCARE PROVIDER OR OTHER MEDICAL PROFESSIONAL. CONVERSATION PARTNERS ARE NOT LICENSED IN SOCIAL WORK, COUNSELING, OR IN THE PROVISION OF MEDICAL CARE OF ANY KIND. IF YOU ARE THINKING ABOUT SUICIDE, IF YOU FEEL THAT YOU MAY BE A DANGER TO YOURSELF OR TO OTHERS, OR IF YOU OTHERWISE HAVE ANY MEDICAL EMERGENCY, PLEASE IMMEDIATELY CALL 911 OR NOTIFY THE APPROPRIATE EMERGENCY MEDICAL PERSONNEL.
2.4 Account Restrictions. By using the Services, you state that you are above the age of eighteen (18) years old. No one under the age of eighteen (18) years old is allowed to create an Account (as defined below) or use the Services. By using the Services, you will comply with these Terms and all applicable local, state, national, and international laws, rules, and regulations.
3.1 Account Registration. To use the Services, you must provide all information we reasonably request to establish, register and confirm your account (an “Account”). We may offer to you the ability to create and manage your account online, via our platform; in which case you will: (a) create a unique password; (b) provide complete and accurate information; (c) promptly update any information you have provided to us so that the information is complete and accurate at all times; (d) maintain the security of your Account by protecting your password from unauthorized access or use; (e) promptly notify us if you discover or suspect any unauthorized access or use of your Account or any security breaches related to your Account; and (f) be responsible for all activities that occur under your Account, and accept all risks of any authorized or unauthorized access to your Account.
3.2 Account Information. As part of your registration, we may require you to verify your email address. In addition, we may require you to provide or validate other information about yourself in the future, if we have a reasonable need for the information to provide Services or to perform under (or to exercise our rights under) the Terms. We have the right to refuse your registration or suspend or terminate your use of Services if you fail to provide the requested information and to keep it current, complete, truthful and accurate at all times.
3.3 Account Responsibility. You are responsible for keeping your Account and your password secure. You agree to notify us immediately of any unauthorized access to or use of your Account, username, or password or any other breach of security. You are responsible for all activity occurring under your Account, including for all charges under your Account. You should use particular caution when accessing your Account so as not to provide third parties with your Account credentials. We will not be liable for any loss that you incur as a result of someone else accessing and using your Account, either with or without your knowledge.
3.4 Number of Accounts. You agree that you will not create more than one Account or create an Account for anyone other than yourself.
3.5 Access and Devices. You are responsible for obtaining the access necessary to use the Services, which may include network access. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. We do not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
4. Pricing and Payment. The following pricing and payment terms apply to all Services:
4.1 Subscriptions. Unless otherwise expressly stipulated by us in a separate and duly executed agreement with you, all Services are on a recurring subscription basis. By electing to license and use the Services under one of our subscription plans (each, a “Subscription Plan”), you agree to pay the Subscription Fee (as defined below) pursuant to the Subscription Plan that you select.
4.2 Pricing and Subscription Fees. You agree to pay us all fees (the “Subscription Fees”) for your access to, and use of, the Services (and any associated services) that you order and purchase from us, in accordance with the payment terms set forth in this section. Our current fees are available on the Services pricing page of our website, through a personalized payment page, or via an order form (in each case, an “Order Page”) that we send to you (or to which we otherwise provide you with personalized access). To the extent we provide the Services or other features or services for which we charge a Subscription Fee that is not listed in those pricing terms, we will provide you with notice of such Subscription Fee prior to providing the feature or service (for example, by displaying the fee to you on a corresponding Order Page; by displaying the fee to you, for your review and acceptance, within your designated account or portal; or otherwise, by displaying the fee at the time you are using the feature to which the fee applies, and your use of the feature to which the fee applies constitutes your consent to such fee).
4.3 Subscription Period. Each Subscription Plan that we offer shall be subject to a specific term for which such Subscription Plan will be in effect (the “Subscription Period”), and you will have the ability to select one or more Subscription Period options for your Subscription Plan. The Subscription Period for your Subscription Plan begins on the earlier of (i) the date on which we provide you with access to the Services; (ii) the date on which your Free Trial Period to the Services concludes (if available and if you elected to use a Free Trial Subscription, as defined below); or (iii) the Subscription Period commencement date set forth on the Order Page for your Subscription Plan that you accept (the “Subscription Start Date”). Upon conclusion of your Subscription Period then in effect, your Subscription Plan shall automatically renew for a subsequent Subscription Period equal in duration to the concluded Subscription Period, unless you elect to change, terminate, or non-renew you Subscription Plan, as provided in these Terms. We will automatically charge you the applicable Subscription Fee for the next Subscription Period upon each renewal, pursuant to the payment terms of your Subscription Plan.
4.4 Payment of Subscription Fees. Unless otherwise expressly stipulated by us on the Order Page or in a separate and duly-executed agreement with you, the Subscription Fees will be based upon the Subscription Period that you select, and shall be due and payable on a monthly basis. Each monthly payment shall be due in advance, initially on the Subscription Start Date, and subsequently on the same date each subsequent month while your Subscription Plan is in effect. We reserve the right to amend or cancel the month-to-month option for our Subscription Plans at any time, in our sole discretion, provided that the foregoing changes will not take effect during your current Subscription Period.
4.5 Changes to Subscription Fees. We expressly reserve the exclusive right to make changes to the prices of any of our Subscription Plans, and to our pricing structure generally, at any time and in our sole discretion; provided however, we will provide you with at least thirty (30) days’ advance notice of any such fee or pricing policy changes in accordance with the section titled “Notices” hereof. Notwithstanding the foregoing, however, changes to the Subscription Fees due or payable by you will take effect on a going-forward basis only, following notice to you.
4.6 Usage Fees. Depending upon the type of Subscription Plan that is made available to you, and the type that you select, your use of the Services may be subject to usage-based fees (the “Use Fees”), which may be, for example, on a per-call basis, whenever you initiate a call with a Conversation Partner; or on a per-time-period basis (e.g. per minute or per pre-set block of minutes) that you actually use during any call between you and a Conversation Partner. The rate of Use Fees and their applicability to you shall be set forth on the corresponding Order Page, whenever you sign up for, or make any amendments to, the Services. We reserve the right, in our discretion, to collect Use Fees from you immediately upon your use of the Services to which Use Fees apply, or on a daily, weekly, bi-weekly, or monthly basis, in arears.
4.7 Changes to Use Fees. We expressly reserve the exclusive right to make changes to the rates and applicability of the Use Fees, at any time and in our sole discretion; provided however, we will provide you with at least ten (10) days’ advance notice of any such fee or pricing policy changes in accordance with the section titled “Notices” hereof. Notwithstanding the foregoing, however, changes to the Use Fees due or payable by you will take effect on a going-forward basis only, following notice to you.
4.8 Additional Payment Terms. Payment of all Subscription Fees are due in advance, and payment of Use Fees are due in arears, as calculated based upon your actual use of the Services. We have no obligation to perform under these Terms during any period in which all fees due have not been paid in full (in the case of Subscription Fees), or if your account has an unpaid balance that is past due (in the case of Use Fees).
4.9 Payment Card. To use our Services, you must provide to us and maintain at all times a valid, current credit or debit card (a “Payment Card”) and related billing information as a condition to using the Services, and we will automatically charge your payment card for any fees due, without the requirement of your signature or any additional action on your part. You expressly authorize us to charge your Payment Card for all fees owed to us in connection with the Services.
4.10 Taxes Excluded. Our fees do not include, and we are not responsible for, (i) any additional fees, charges, or duties imposed on you by any third party due to your use of the Services, including without limitation, any telecommunications access or use fees, financial institution fees, or processor or intermediary fees; or (ii) any taxes, levies, or duties or similar amounts related to the fees or your use of Services. You are responsible for paying all of the foregoing. YOUR OBLIGATIONS TO PAY AMOUNTS DUE WILL SURVIVE TERMINATION OF THESE TERMS FOR ANY REASON.
4.11 Free Trial. If you are a new customer, we may elect to make available to you the ability to use and evaluate Services at no cost (a “Free Trial Subscription”). Unless we expressly agree otherwise in writing, the period of the Free Trial shall be seven (7) days from the date on which we grant you with access to the Services (the “Free Trial Period”). To request and access a Free Trial subscription, we may require you to sign up for a Subscription Plan and to accept these Terms. Further, we may require you to provide us with a valid payment card, and you expressly authorize us to charge the full amount of the Subscription Fees applicable to your Subscription Plan on the date following the conclusion of your Free Trial Period, unless you notify us of your desire to cancel your Free Trial Subscription before that date. Unless we make available to you a different payment plan and you elect the same, in advance, FOLLOWING THE CONCLUSION OF THE FREE TRIAL PERIOD, YOU WILL AUTOMATICALLY BE TRANSITIONED TO AN ANNUAL SUBSCRIPTION PLAN THAT IS SUBJECT TO THE ANNUAL PAYMENT MODEL. You expressly acknowledge, agree, and consent to us charging the payment card that you provide for the full amount of the Subscription Fees of your Subscription Plan, pursuant to the Annual Payment Model. We reserve the right to limit access to Free Trial Subscriptions to only new customers who have not previously used or accessed Services (and who have not been granted a prior Free Trial Subscription). We further reserve the right to terminate any active Free Trial Subscriptions, and to deny Free Trial Subscriptions, to anyone, for any reason and at any time, in our sole discretion.
4.12 Special Subscription Plan. We may, from time to time, and in our sole discretion, create and offer one or more subscription types (each, a “Special Subscription Plan”) to Services that offer features, functionality, or levels of access that are limited, or otherwise different from, the other Services offered under standard Subscription Plans. Special Subscription Plans may be subject to additional terms and Subscription Fees that are calculated differently from those of other Subscription Plans. We will from time to time make available to you information about any such unique features, functionality, limitations, and pricing differences of any such Special Subscription Plan then available, whether on our website generally, on a dedicated page for such a plan, or as part of a personalized payment page that we send to you. We reserve the right to introduce, amend, and to discontinue any aspect of any Special Subscription Plan at any time, for any reason, with advance notice to you (or to which we otherwise provide you with personalized access).
5. Use Restrictions. All content available through the Service, including designs, text, graphics, images, information, software, audio and other files, and their selection and arrangement (the “Services Content”), are the proprietary property of Happy Talks or our licensors. You may use the Services Content, solely as authorized by us in connection with your use of the Services for so long as we permit you to continue to access the Services. You shall not directly or indirectly: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services Content; or (b) attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Services; (c) access all or any part of the Services and Services Content in order to build a product or service which competes with the Services and/or the Services Content; (d) provide any other person with access to or use of your Account; (e) interfere with or disrupt the Services, networks, or servers connected to the systems or violate the regulations, policies, or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Services; or (f) use the Services or Services Content in violation of law applicable to you. We have no obligation to monitor your use of the Services; however, we reserve the right, at all times, to monitor such use, and to review, retain, and disclose any information as necessary to ensure compliance with the terms of these Terms, and to satisfy or cooperate with any applicable law, regulation, legal process, or governmental request.
7. Copyright Policy. We honor copyright laws, including the Digital Millennium Copyright Act (17 U.S.C. § 512) (the “DMCA”). We, therefore, take reasonable steps to expeditiously remove from our Services any infringing material that it becomes aware of. If we become aware that any User has repeatedly infringed copyrights, we will take reasonable steps, within our power, to terminate that User’s Account.
(a) We make it easy for you to report suspected copyright infringement. If you believe that anything on the Services infringes a copyright that you own or control, please report it by filing a notice with our designated agent:
Attn: Happy Talks Copyright Agent
3423 Piedmont Rd NE, Atlanta, GA 30305
Note – Do not use this email address for anything other than reporting copyright infringement, as such emails will be ignored.
(b) If you file a notice with Happy Talks Copyright Agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). That means the notice must:
(i) Contain the physical or electronic signature of a person authorized to act on behalf of the copyright owner;
(ii) Identify the copyrighted work claimed to have been infringed;
(iii) Identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to let us locate the material;
(iv) Provide your contact information, including your address, telephone number, and an email address;
(vi) Provide a personal statement that you have a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) Provide a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
8. Intellectual Property Rights.
8.1 Ownership of Services. We expressly and exclusively reserve for ourselves any and all registered and unregistered rights (whether or not registrable), granted, applied for, or otherwise now or hereafter in existence under or related to any patent or patentable subject matter, copyright or copyrightable subject matter, trademark or trademarkable subject matter, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (the “Intellectual Property Rights”) that are created, generated, acquired, or used connection with the Services. Nothing herein shall be deemed to grant any rights or licenses to our Intellectual Property Rights to you, except as is expressly required for you to use the Services (but not apart from your use thereof).
8.2 Feedback. We will own any feedback, suggestions, ideas, or other information or materials regarding us or the Services that you provide, whether by email, posting through the Services or otherwise (“Feedback”). You hereby assign to us all right, title and interest to Feedback together with all associated intellectual property rights. You will not be entitled to, and hereby waive any claim for, acknowledgment or compensation based on any Feedback or any modifications made based on any Feedback.
8.3 User Content. You hereby grant to us a royalty-free, fully paid-up, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, copy, modify, create derivative works of, display, perform, publish and distribute, in any form, medium or manner, any text, information, data, materials, images, or other content you provide to us using the Services or submit or post to the Services and that is not Feedback owned by us (the “User Content”). You represent and warrant that: (a) you own the User Content or have the right to grant the rights and licenses in these Terms, and (b) the User Content and use by us of the User Content as licensed herein does not and will not violate, misappropriate or infringe on the rights of any third party. We may remove any User Content from the Services for any reason at our discretion.
9. Third-Party Content. The Services may contain links to third party websites, advertisers, services, special offers, or other events or activities not owned by us (“Third-Party Content”). We do not control, endorse, or adopt any Third-Party Content and shall have no responsibility for Third‑Party Content, including without limitation material that may be misleading, incomplete, erroneous, offensive, indecent, or otherwise objectionable. In addition, your business dealings or correspondence with such third parties are solely between you and the third parties. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, and you understand that your use of Third-Party Content, and your interactions with third parties, is at your own risk.
10. Termination; Effect of Termination; Suspension. These Terms become effective on the date on which you register for, purchase subscriptions to, log into, access, or use the Services, or otherwise indicate your agreement to these Terms (whichever is earlier), and shall continue in full force and effect until terminated as set forth below.
10.1 Termination by Non-Renewal. Either party may elect not to renew your Subscription Plan to the Services by providing notice to the other party, in accordance with the section titled “Notices” hereof, at least thirty (30) days prior to the conclusion of the Subscription Period then in effect (a “Non-Renewal Termination”).
10.2 Termination by You. You may terminate your Subscription Plan to the Services effective immediately if we are found to be materially in breach of a material part of these Terms, and we fail to cure such breach within sixty (60) days of receiving notice thereof from you, provided such notice is made in accordance with the section titled “Notices” hereof.
10.3 Termination or Suspension by Us. Notwithstanding anything in these Terms to the contrary, we reserve the right to suspend our performance hereunder and/or suspend or limit your and/or any of Users’ access to or use of Services, or to terminate these Terms, immediately and without any liability to you in the event of (i) a breach of these Terms by you (including failure to make any payment when due) or (ii) any act or omission of any of Users that (a) would constitute a violation of these Terms if done by you or (b) in our reasonable discretion, poses a risk of disruption or interference with any portion of the Services (or the security thereof) or with any other user’s use of the Services (or any portion thereof), or (c) constitutes (in our reasonable discretion) an unreasonable, excessive or abusive use of Services, our systems or resources. Neither termination of these Terms or suspension of your use of the Service relieves you of your obligation to pay amounts due to us.
10.4 Effect of Termination. Termination of these Terms for any reason also terminates all of your rights to use any and all Services. If you cancel your Subscription Plan for convenience before the end of the current Subscription Period, the fees for that Subscription Period are non-refundable and remain due.
11. User Release. YOU ACKNOWLEDGE AND AGREE THAT SOME OR ALL OF THE SERVICES WILL BE PROVIDED BY CONVERSATION PARTNERS WHO ARE INDEPENDENT CONTRACTORS, AND ARE NOT EMPLOYEES OR AGENTS, OF HAPPY TALKS. AS SUCH, YOU EXPRESSLY WAIVE, DISCHARGE, AND FOREVER RELEASE HAPPY TALKS, ITS PARENTS, AFFILIATES, SUBSIDIARIES, AND ITS AND THEIR EQUITY HOLDERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS OR DAMAGES WHATSOEVER WHICH MAY RESULT FROM OR ARISE OUT OF THE ACTS OR OMISSIONS OF ANY CONVERSATION PARTNER, WHATEVER THE UNDERLYING CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO INJURIES, EMOTIONAL DAMAGES, PHYSICAL HARM, AND ALL OTHER CONSEQUENTIAL, INCIDENTIAL, EXEMPLARY, INDIRECT AND SPECIAL DAMAGES, ALL OF WHICH ARE EXPRESSLY EXCLUDED UNDER THESE TERMS.
12. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES, THE SERVICES CONTENT AND ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON OUR BEHALF ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIMS, AND YOU WAIVE, ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE SERVICES CONTENT ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE THAT YOUR DATA MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED OR TEMPORARILY UNAVAILABLE DUE TO A VARIETY OF CAUSES, INCLUDING SOFTWARE FAILURES, VIRUSES OR OTHER HARMFUL MATERIALS, PROTOCOL CHANGES BY THIRD PARTY PROVIDERS, INTERNET OUTAGES, FORCE MAJEURE EVENT OR OTHER DISASTERS, SCHEDULED OR UNSCHEDULED MAINTENANCE, OR OTHER CAUSES EITHER WITHIN OR OUTSIDE OUR CONTROL. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND MAINTAINING DUPLICATE COPIES OF ANY INFORMATION OR RECORDS YOU STORE OR TRANSFER IN CONNECTION WITH OUR SERVICES.
THE DISCLAIMER OF IMPLIED WARRANTIES CONTAINED HEREIN MAY NOT APPLY IF AND TO THE EXTENT IT IS PROHIBITED BY APPLICABLE LAW OF THE JURISDICTION IN WHICH YOU RESIDE.
13. Indemnification. You will defend, indemnify, and hold harmless us, our Affiliates, and their respective shareholders, members, directors, officers, employees, attorneys, agents, representatives, suppliers and contractors (collectively, “Indemnified Parties”) from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out or relating to (a) your use of, or conduct in connection with, the Services; (b) any Feedback or User Content you provide; (c) your violation of these Terms; or (d) your violation of any applicable law or the rights of any other person or entity. If you are obligated to indemnify any Indemnified Party, we (or, at our discretion, the applicable Indemnified Party) will have the right, in its sole discretion, to control any action or proceeding and to determine whether we wish to settle, and if so, on what terms.
14. Disclaimer of Damages. IN NO EVENT WILL WE, OUR AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUPPLIERS OR CONTRACTORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, INFORMATION, OR FINANCIAL BENEFIT) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, OR ANY OTHER PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON BEHALF OF US, WHETHER UNDER CONTRACT, STATUTE, STRICT LIABILITY OR OTHER THEORY (INCLUDING, FOR AVOIDANCE OF DOUBT, ANY NEGLIGENCE OF OURS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Limitation of Liability. IN NO EVENT WILL OUR LIABILITY, OUR AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUPPLIERS OR CONTRACTORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, OR ANY OTHER PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON OUR BEHALF, WHETHER UNDER CONTRACT, STATUTE, STRICT LIABILITY OR OTHER THEORY (INCLUDING, FOR AVOIDANCE OF DOUBT, ANY NEGLIGENCE OF OURS) EXCEED THE AMOUNT OF THE FEES PAID BY YOU TO US OR BY US TO YOU UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
16. Arbitration, Class-Action Waiver, and Jury Waiver.
16.1 Applicability of Arbitration Agreement. You and Happy Talks agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms or the use of the Services that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and Happy Talks are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. For clarity: the phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Terms.
16.2 Initiating Arbitration. Before you commence arbitration of a claim, you must provide us with a written notice (a “Notice of Dispute”) that includes your name, residence address, username, email address or phone number you use for your account, a detailed description of the dispute, and the relief you seek. Any Notice of Dispute should be sent to us by mail to Happy Talks, LLC, ATTN: Arbitration Filing, 3423 Piedmont Rd NE, Atlanta, GA 30305. Before we commence arbitration, we will send you a Notice of Dispute to the email address you use with your account, or by other appropriate means. If we are unable to resolve a dispute within thirty (30) days after the Notice of Dispute is received, you or we may commence arbitration.
16.3 Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through JAMS and will be governed by their commercial arbitration rules, which are then in effect. If JAMS is not available to arbitrate, the parties will select an alternative customary arbitral mechanism. The rules of the arbitral mechanism will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. The seat of arbitration shall be Atlanta, Georgia. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.4 Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
16.5 Fees. We will pay all arbitration filing fees, administration and hearing costs, and arbitrator fees for any arbitration we bring. For all other claims, the costs and fees of arbitration shall be allocated in accordance with the arbitration provider’s rules, including rules regarding frivolous or improper claims.
16.6 Authority of the Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Happy Talks. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Terms. The arbitrator will 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 Happy Talks.
16.7 Waiver of Jury Trial. YOU AND HAPPY TALKS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Happy Talks are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Happy Talks over whether to vacate or enforce an arbitration award, YOU AND HAPPY TALKS WAIVE ALL RIGHTS TO A JURY TRIAL and elect instead to have the dispute be resolved by a judge.
16.8 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 19.1.
16.9 Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
16.10 Opt-out. You can opt out of this provision within thirty (30) days of the date that you agreed to these Terms. To opt out, you must send your name, residence address, username, email address or phone number you use for your account, and a clear statement that you want to opt out of this arbitration agreement, and you must send them here: Happy Talks, LLC, ATTN: Arbitration Opt-out, 3423 Piedmont Rd NE, Atlanta, GA 30305
16.11 Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with HAPPY TALKS.
16.12 Enforcement of Happy Talks Intellectual Property. You acknowledge and agree that, in addition to or in lieu of arbitration pursuant to this Section 16, we may initiate a proceeding related to the enforcement or validity of our Intellectual Property Rights in any court of law or other forum having jurisdiction.
17. Contact Us. All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: email@example.com
18. Notices. We may deliver any notice required or permitted hereunder (i) via a notice appearing in your account or on the Services or (ii) via electronic mail to your contact information on record with us in your account information, which notice will be deemed received by you when posted or transmitted by us. Where we permit notices to be given to us via a feature or functionality of the Services (for example, changes to your account or billing information), you may give such notice through such feature or functionality and it will be deemed effective upon actual receipt by us, but only to the extent the notice is of a type for which the feature or functionality is intended to convey (for example, using your account page to update your contact information). Otherwise, all notices to us under these Terms (including notices of claims or disputes or to initiate arbitration) must be delivered in writing in hard-copy (paper) to us by (i) personal delivery by hand, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) reputable national or international mail courier with proof of delivery. Our current address is:
Happy Talks, LLC
Attn: Terms Notices
3423 Piedmont Rd NE, Atlanta, GA 30305
We may change this notice address by updating these Terms or by listing a new address on the applicable Services or website(s) associated with them. You are responsible for making sure that you are sending notices to our most current address. Notices given to our address will be deemed effective upon the first normal business day (non-weekend/non-holiday) following actual receipt by us at such address. THIS SECTION WILL SURVIVE TERMINATION OF THESE TERMS FOR ANY REASON.
19.1 Governing Law. The interpretation and enforcement of these Terms, and any dispute related to these Terms or the Services, will be governed by and construed and enforced in accordance with the laws of State of Georgia, without regard to conflict of law rules or principles (whether of Georgia or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.
19.2 Assignment. These Terms are binding upon and inure to the benefit of the permitted successors and assigns of each party. You may not assign, subcontract, delegate or otherwise convey these Terms, or any of its rights and obligations hereunder. Notwithstanding anything to the contrary in these Terms, we may assign, transfer, and delegate this agreement (these Terms) and its obligations hereunder at any time, in its sole discretion.
19.3 Severability. If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any such provision in every other respect and the remaining provisions of these Terms will be unimpaired and these Terms will continue in full force and effect, unless the provisions held invalid, illegal, or unenforceable will substantially impair the benefits of the remaining provisions hereof.
19.4 Waiver. The failure of either party to insist upon strict performance or to seek remedy for breach of any term of these Terms, or to exercise any right, remedy or election herein or permitted by law or equity, will not constitute nor be construed as a waiver or relinquishment in the future of such term, condition, right, remedy, or election. Any consent, waiver, or approval by either party of any act or matter will not be effective unless made in writing and signed by an authorized representative of the consenting, waiving, or approving party.
19.5 Force Majeure. We will not be responsible or liable to you or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder (including the temporary unavailability or inaccessibility of the Services) where such failure is the result of Force Majeure. As defined herein, “Force Majeure” means any (a) acts of God, flood, fire, wind, storm, drought, earthquake, or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riot, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination, or sonic boom; (e) any law or any action taken by a government or public authority; (f) collapse of building, breakdown of plant or machinery, fire, explosion, or accident; (g) any labor or trade dispute, materials or transport, strike, industrial action or lockout; (h) interruption or failure of utility service; or (i) or any other cause, whether similar or dissimilar to those enumerated, that is beyond our reasonable control and without our fault or negligence.
19.6 Survival. Termination of these Terms will not affect the provisions that, by their nature, are intended to survive the termination hereof, including without limitation, Section 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 18 and 19.
19.7 Entire Agreement; Order of Precedence. These Terms contain the entire agreement and supersede all prior and contemporaneous understandings between the parties regarding the Services. In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless the other agreement specifically identifies these Terms and declares that the other agreement supersedes these Terms.