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. Services.
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. Account.
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.
6. Privacy Policy. Please refer to our Privacy Policy as updated from
time to time, located at: www.happytalks.com/privacy or such other URL as we may provide from
time to time, for information about how we collect, use, and share your
information. By using and providing information to or through the Services, you
consent to all actions taken by us with respect to your information in
compliance with the Privacy Policy.
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:
Happy
Talks, LLC
Attn: Happy Talks Copyright Agent
3423 Piedmont Rd NE, Atlanta, GA 30305
email: help@happytalks.co
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:
help@happytalks.co
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. Miscellaneous.
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.