PART B: GENERAL TERMS
If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us. You may not use our Services if you have previously been removed from doing so.
You may need to register for an account to access some or all of our Services (“Account”). If you register for an Account, you must provide accurate Account information and promptly update this information if it changes. You also must maintain the security of your Account and promptly notify us if you discover or suspect that someone has accessed your Account without your permission. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You should never publish, distribute or post login information for your Account. You must not use another person’s Account or registration information for the Services without permission. WE EXPLICITLY DISCLAIM LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION.
You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a username a name that is otherwise offensive, vulgar or obscene. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
Our Services may allow you and other users to create, post, store and exchange content with other users, including messages, text, photos, Recordings (defined below) and other materials (collectively, “User Content”). Except for the license and other rights you grant below, you retain all rights in and to your User Content, as between you and Hapi.
You may not create, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. You shall be solely liable for any damages resulting from any harm resulting from such User Content, and any infringement of copyright, trademark, proprietary rights, or any other harm resulting from such User Content.
Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice. You acknowledge that we may, in our discretion, monitor or record any and all conversations or other oral or electronic communications that you engage in on or through the Services (whether you are a Talker or Listener) (“Recordings”) and you hereby expressly consent to Hapi making and retaining such Recordings. You further acknowledge that Hapi may, in its discretion, use such Recordings in the course of its business and hereby expressly consent to such uses by Hapi.
You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that:
You understand that violation of these rules or Terms more generally may result in the termination of your Account or access to the Services. You acknowledge and agree that Hapi may terminate any Account at any time for any reason. Hapi further reserves the right to report unlawful activity to law enforcement or other regulatory authorities.
Enforcement of this Section 4 is solely at Hapi’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Hapi or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
Hapi and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Hapi and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and Hapi names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
It is our policy to expeditiously respond to notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (“DMCA”). This Section 7 describes the information that should be present in these notices and the take down procedure we follow with respect to allegedly infringing material. If we receive proper notification of claimed copyright infringement, our response to these notices may include removing or disabling access to the allegedly infringing material and/or terminating or suspending users. If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the provider of the allegedly infringing content so that they may make a counter notification pursuant to the DMCA. It is our policy to accommodate and not interfere with standard technical measures used by copyright owners to identify or protect their copyrighted works that we determine are reasonable under the circumstances.
If you believe that any content on the Services infringes upon any copyright which you own or control, you may send a written notification to our designated copyright agent (the “Designated Agent”), identified below, with the following information:
Designated Agent: EBSW LLC
Address: 120 Hawthorne Ave Palo Alto, CA, 94301-1000 United States
Phone: (201) 677-2348
To notify the provider of the allegedly infringing material to which we have removed or disabled access, we may forward a copy of your infringement notice, including your name and email address to the provider of the allegedly infringing material.
We may terminate users who, in our sole discretion, are deemed to be repeat infringers. Knowingly misrepresenting in a notification that material is infringing can subject you to damages, including costs and attorneys’ fees, incurred by us or the alleged infringer. If you receive an infringement notification from us, you may file a counter notification pursuant with our Designated Agent pursuant to the DMCA.
To file a counter notification, please provide our Designated Agent with the following information:
Upon receipt of valid counter notification, we will promptly provide the person who provided the original infringement notification with a copy of your counter notification and inform that person that we will replace the removed material or cease disabling access to it in ten (10) business days. Further, we will replace the removed material and cease disabling access to it not less than ten (10), nor more than fourteen (14), business days following receipt of your counter notice, unless Designated Agent first receives notice from the person who submitted the original infringement notification that such person has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Services.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Hapi or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in Hapi’s sole discretion. You understand that Hapi may treat Feedback as nonconfidential.
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. HAPI DOES NOT CONTROL OR ENDORSE, AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING, ANY THIRD-PARTY CONTENT, AND YOUR ACCESS TO AND USE OF SUCH THIRD-PARTY CONTENT IS AT YOUR OWN RISK.
Features of the Services may be made available through a mobile or other application that you can download to your phone, tablet, or other device (“Mobile App”) via a third-party service such as an application store. Your use of the third-party service may be subject to additional terms related to that service from the service provider (“App Store Provider”). WE ARE NOT LIABLE IN ANY WAY FOR, AND MAKE NO REPRESENTATIONS OR WARRANTIES RELATING TO, ANY SUCH THIRD PARTY SERVICE OR ANY CLAIM OR DAMAGE RESULTING FROM YOUR USE OF SUCH THIRD PARTY SERVICE.
You acknowledge that these Terms and your use of a Mobile App is between you and us only, and not with any App Store Provider or its affiliates or subsidiaries. As between us and an App Store Provider, we are solely responsible for the Mobile App and its Content. If anything in these Terms conflicts with any usage rules for the Mobile App from an App Store Provider, such terms from the App Store Provider control (only so far as those terms conflict with these Terms, and then exclusively for your use of the Mobile App). All rights you have to use the Mobile App are for use only on appropriate products (which may require branding from the App Store Provider or other entities) and are non-transferable, except that the Mobile App may be accessed and used by other accounts associated with the you via features like Apple’s Family Sharing (or similar features from other App Store Providers) or volume purchasing. We are solely responsible for providing any maintenance and support services for the Mobile App, as specified in these Terms or as required under applicable law. No App Store Provider has any obligation whatsoever to furnish any maintenance and support services for the Mobile App, nor any warranties for the same.
WE DISCLAIM ALL WARRANTIES RELATED TO ANY MOBILE APP. However, in the event that the Mobile App fails to conform to any applicable warranty that we cannot disclaim according to applicable law, you may have the right to notify the App Store Provider, and the App Store Provider may refund the purchase price for the Mobile App. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO APP STORE PROVIDER WILL HAVE ANY OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE MOBILE APP, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY IS OUR RESPONSIBILITY.
We, not the App Store Provider, are responsible for addressing any claims relating to the Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, (iv) claims that the Mobile App infringes a third party’s intellectual property rights as well as the investigation, defense, settlement and discharge of any such intellectual property infringement claim. By using the Mobile App, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that the App Store Provider, and its subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms and your use of the Mobile App, the App Store Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
By electing to contact or be contacted by Hapi, our Listeners or our Talkers, as may be applicable to you, by telephone or SMS/text messaging, or otherwise signing up for a text message campaign relating to the Services, you are agreeing to the Dispute Resolution; Binding Arbitration; Class Action Waiver section of these Terms as well as the rest of the terms herein, including the Limitation of Liability.
By registering for the Services, you consent to receive communications from us, which may include calls and text messages to the cellular telephone number you provide to us. We may also send transactional alerts about your Account. You may also sign up to receive marketing or promotional calls and text messages relating to the Services. Message and data rates may apply to any of our text message programs, and consent to a program is not required for any purchase of Minutes or Messages. You must notify us if you give up a telephone number that is subscribed to a text message program or if the number is otherwise reassigned. You may opt-out of receiving certain communications by following the unsubscribe options we provide to you. You acknowledge that opting out of receiving communications may impact your use of the Services.
The Services may allow you to download certain content, applications, software and other information or materials. Hapi makes no representation that such download will be error or malware free or fit for a particular purpose. Certain downloads may be subject to a separate agreement either with the Company or a third party, for example an agreement with a mobile application store (see Section 11 for more information on mobile applications).
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Hapi and our respective officers, directors, agents, partners and employees (individually and collectively, the “Hapi Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You agree to promptly notify Hapi Parties of any third-party Claims, cooperate with Hapi Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys’ fees). You also agree that the Hapi Parties will have control of the defense or settlement, at Hapi’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Hapi or the other Hapi Parties.
Neither Hapi nor its licensors or suppliers make any representations or warranties concerning any Content contained in or accessed through the Services, including, but not limited to content of Listener and/or Talker communications, and we will not be responsible or liable for the accuracy, copyright compliance or legality of material or Recordings contained in or accessed through the Services. You understand and acknowledge that Listener and Talker communications provided through the Services are not medical advice or mental health counseling, and are not a substitute for in-person evaluation or specific professional advice. You understand and acknowledge that Hapi cannot and does not edit, modify, filter, screen, monitor, endorse or guarantee the content of Listener or Talker communications. YOU ACKNOWLEDGE THAT HAPI WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGES CAUSED BY YOUR RELIANCE ON ANY INFORMATION OR CONTENT CONTAINED IN SUCH COMMUNICATIONS.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND CONTENT ARE PROVIDED BY HAPI (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE OF VIRUSES OR MALWARE OR ERROR-FREE OR THAT THE RESULTS OR CONTENT THAT MAY BE OBTAINED FROM THE SERVICES WILL BE ACCURATE OR RELIABLE OR THAT THE QUALITY OF THE SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HAPI, TALKERS, LISTENERS OR OTHER USERS, OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, TALKERS AND LISTENERS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. HAPI EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OF THE SERVICES OR THIRD PARTIES. UNDER NO CIRCUMSTANCES WILL HAPI BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER’S RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES. USE OF THE SERVICES IS AT USER’S SOLE RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HAPI, A TALKER, A LISTENER OR ANY OTHER USER, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY.
HAPI IS NOT LIABLE FOR DELAYED OR UNDELIVERED MESSAGES OR RECORDINGS MADE THROUGH THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HAPI AND THE OTHER HAPI PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF HAPI OR THE OTHER HAPI PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL LIABILITY OF HAPI AND THE OTHER HAPI PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR SERVICES, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $10 OR THE AMOUNT PAID BY YOU TO USE OUR SERVICES.
THE LIMITATIONS SET FORTH IN THIS SECTION 16 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF HAPI OR THE OTHER HAPI PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
To the fullest extent permitted by applicable law, you release Hapi and the other Hapi Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to any interactions or disputes between users, including, but not limited to, Talkers and Listeners, and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH HAPI AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION PROVISION.
ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
No Representative Actions: You and Hapi agree that ANY CLAIMS OR ARBITRATION RELATED TO THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS AND THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR MASS ARBITRATION. Further, unless both you and Hapi agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
Arbitration of Disputes: Except for small claims disputes in which you or Hapi seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Hapi seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Hapi waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Hapi you agree to first contact Hapi and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Hapi by email at HELLO@HAPI.COM or by certified mail addressed to 120 Hawthorne Ave, Palo Alto, USA. The Notice must (a) include your name, residence address, email address and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Hapi cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in San Francisco County, California unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 18, a “consumer” means a person using the Services for personal, family or household purposes. You and Hapi agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and is hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
Governing Rules: You and Hapi agree that these Terms affect interstate commerce and that the enforceability of this Section 18 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Hapi, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Hapi agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Hapi will pay the remaining JAMS fees and costs. For any arbitration initiated by Hapi, Hapi will pay all JAMS fees and costs.
Award: In the event arbitration awards you damages of an amount at least $100 greater than our last documented settlement offer, we will pay your awarded damages or $2,500, whichever is greater. In any arbitration arising out of a Dispute, the arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement. You and Hapi agree that the state or federal courts of the State of California and the United States sitting in San Francisco County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Coordinated Proceedings: If 20 or more individuals initiate Notices of Dispute with us raising similar claims, and counsel for the individuals bringing the claims are the same or are coordinated for these individuals (“Coordinated Claims”), the claims shall proceed in arbitration in a coordinated proceeding. Counsel for the individuals and counsel for Hapi shall each select five cases to proceed first in arbitration in a bellwether proceeding (“Test Cases”). The remaining cases shall not be filed in arbitration until the first ten have been resolved. If the parties are unable to resolve the remaining cases after the conclusion of the Test Cases, each side may select another five cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties have determined an objective methodology to make an offer to resolve each and every outstanding claim. A court will have authority to enforce this clause and, if necessary, to enjoin the mass filing of arbitration demands against Hapi. Individuals bringing Coordinated Claims shall be responsible for up to $250 of their filing fees or the maximum permissible under the applicable arbitration rules.
Severability of this Section: Unless otherwise stated herein, If any portion of this Section 18 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 18 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in San Francisco County, California.
The following terms apply to Users that are residents of certain jurisdictions:
New Jersey Users: If you are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) Indemnifications; (b) Disclaimers; (c) Limitation of Liability; and (d) under Dispute Resolution; Binding Arbitration; Class Action Waiver, the Arbitration requirements, the Class Action Waiver and the governing law provisions (solely to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law). According to N.J.S.A. 56:12-16, you may have additional rights if you are a New Jersey resident and other provisions of this Agreement are found to violate an established legal right.
California Users: Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Users Outside of the United States: WE MAKE NO REPRESENTATION THAT THE INFORMATION AND MATERIALS ON THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS OTHER THAN THE LOCATION FOR WHICH THE SERVICES ARE DIRECTED. WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR ANY PART THEREOF IS APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION OTHER THAN THE UNITED STATES. Those who choose to access the Services do so on their own initiative and at their own risk, and are responsible for complying with all local statutes, orders, regulations, rules, and other laws. You are also subject to United States export controls and are responsible for any violations of such controls, including without limitation any United States embargoes or other federal rules and regulations restricting exports.
Duration of the Terms. The agreement between you and Hapi reflected by these Terms is effective when you access the Services (for example to create an Account or purchase Minutes or Messages) and remains in effect until either you or we terminate the agreement in accordance with these Terms.
Termination by Users. Users of the Service may terminate your service and account at your sole discretion and at any time by written notice via e-mail to HELLO@HAPI.COM. Terminations typically will be effective within seven (7) business days after our receipt of your termination notice.
Termination by Hapi. At any time, with or without notice, for any or no reason, Hapi reserves the right to modify or discontinue any portion or all of the Services, and to restrict, suspend, and terminate Accounts, subject to these Terms. We may suspend, limit, or terminate all or a portion of your access to the Services or any of its features at any time with or without notice and with or without cause, including without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. We may be protected for liability from these actions under the Communications Decency Act, 47 U.S.C. § 230.
Survival. The provisions of these Terms concerning protection of intellectual property rights, authorized use, user submitted content, disclaimers, limitations of liability, indemnity, and disputes, as well as any other provisions that by their nature should survive, shall survive any such termination.
Effect of Termination. Upon any such termination, (i) you must destroy all content obtained from the Services and all copies thereof; (ii) you will immediately cease all use of and access to the Services; (iii) we may delete or disable access to any of your User Content at any time; (iv) and we may delete your Account at any time. Termination of these Terms will forfeit any benefits you have accrued under your Account, including Minutes or Messages. You agree that if your use of the Services is terminated pursuant to these Terms, you will not attempt to use the Services under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur as a result of such violation. Your use of the Services after termination will be a violation of this Section, which survives any termination.
Even after the termination of these Terms or of your Account or access to the Services, any User Content you have submitted may remain on the Services indefinitely.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The failure of Hapi to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
These Terms apply exclusively to your access to, and use of, the Services and do not alter in any way the terms or conditions of any other agreement you may have with Hapi for products, services, programs or otherwise. We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
Should Hapi employ you, neither these Terms nor any of the materials provided through the Services constitute or should be considered part or of an employment contract or an offer for employment with Hapi.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services. Any use of the Services in violation of these Terms may result in, among other things, termination or suspension of your right to use the Services.