TERMS AND CONDITIONS
Effective Date: February 13, 2017
- “MOBILE APP” DEFINED. “Mobile App” means Company’s United States facing website, including the web page accessible at www.gospreenow.com and, without limitation, our Mobile App, all Website pages, related social media account profile pages, content, materials, information, policies, modifications, updates, enhancements, revisions, new features, and services provided through such web pages.
SITE USE. Services offered through the Mobile App to you (together with the Mobile App, the “Services”) are solely for your own use, and not for the use or benefit of any third party. Company may also impose limits on certain features and services or restrict your access to part or all of the Services without notice or liability. If you make any use of the Services other than as provided herein, you may violate applicable state and federal laws of the United States and other countries, in addition to breaching these Terms, and you may be subject to substantial damages FOR WHICH YOU SHALL BE SOLELY LIABLE.
RESTRICTIONS ON MOBILE APP USE.
The Mobile App is intended only for use by persons aged 18 and over. If you are under the age of 18, please delete the Mobile App and do not use it. If you believe that someone who is under the age of 18 has downloaded or is using the Mobile App, contact us at [insert email address].
You agree to use the Mobile App only as provided herein. You will not:
- Use the Mobile App in any manner which could damage, disable, overburden, or impair the Mobile App or interfere with any other party's use and enjoyment of the Mobile App.
- Use the Mobile App in any manner that could create a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement.
- Obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Mobile App.
- Violate any applicable laws or regulations, including any state or federal drinking age laws or any privacy or intellectual property laws or regulations, or violate these Terms.
- Misrepresent or attempt to misrepresent your identity while using the Mobile App, including misrepresentation as a Company agent or representative, or misrepresentation stating or implying our endorsement of you or your product or activity.
Disclosure under Law.
The Company reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, including personally identifiable information, or to edit, refuse to allow or to remove any information or materials, in whole or in part, in the Company’s sole discretion.
Providing Correct Personal Information
In the course of using the Services, you may be required to provide certain information, including without limitation personal information (collectively, “Information”). You represent and warrant that you will provide the Company with full, true and correct Information.
License in Materials
If you provide the Company with feedback about the Mobile App or Services provided through the Mobile App (collectively, “Feedback”), then in addition to the license granted in the Materials, the Company will have the right to use such Feedback at the Company’s discretion, including but not limited to incorporating such Feedback into the Mobile App and the right to assign, license or otherwise use such Feedback. You hereby give the Company a perpetual, irrevocable, non-exclusive license under all rights necessary to incorporate such Feedback and use such Feedback for any purpose. No compensation will be paid with respect to the use of your Materials.
Your Responsibility for User-Generated Content and the Company's Monitoring Rights
The Mobile App permits the uploading and posting of user-generated picture content and messages, (collectively, the “User-Generated Content”). You will be responsible for your own User-Generated Content and the consequences of transmitting that User-Generated Content. The Company has no obligation to monitor you or any other user’s use of the Mobile App. The Company reserves the right to review and monitor your use of the Mobile App and any User-Generated Content submitted to the Mobile App, and to remove any User-Generated Content that the Company believes in its sole discretion violate these Terms. The Company reserves the right to restrict or terminate your access to the Mobile App, including, without limitation, your access to any or all of the Services provided thereunder at any time without notice if we believe you have violated these Terms or are likely to violate these Terms or for any other purpose. Your sole remedy against the Company in the event of a dispute arising out of these Terms, the Mobile App or your use thereof, is to terminate these Terms by ceasing your use of the Mobile App. In the event of termination of these Terms, the Company may delete and/or store, in its discretion, User-Generated Content and data associated with your use of the Mobile App. The Company may also change, suspend, or discontinue any aspect of the publicly available portion of the Mobile App at any time, including the availability of any Mobile App feature, database, or content.
By uploading and posting User-Generated Content you agree, without limitation, to the following:
- You will not upload or post User-Generated Content that violates any copyright or trademark rights of any other person.
- You will not impersonate another person in your uploading or posting of User-Generated Content.
- You will not upload or post User-Generated Content that constitutes a direct, specific threat of violence toward another person.
- You will not upload or post User-Generated Content that compromises the privacy rights of any person, including without limitation such person’s social security number, credit card number, or street address, and you will comply with any applicable laws, including without limitation, invasion of privacy or stalking laws.
- You will not upload or post User-Generated Content that is or could be construed as pornographic or sexually explicit.
- You will not upload or post User-Generated Content that is or could be construed as defamatory, libelous, obscene, profane, bigoted, hateful, racially offensive, harassing, inflammatory, violent, threatening, inaccurate, deceptive, or unlawful, or that could constitute or encourage conduct that could give rise to civil or criminal liability.
- The Company will not tolerate the posting of User-Generated Content that does not comply with the content standards set forth above.
REPRESENTATIONS AND WARRANTIES
- Forward-Looking Statements. The Mobile App may contain forward looking statements that are subject to risks and uncertainties that might cause actual results to differ from those foreseen. We wish to caution you that these statements are only predictions and those actual events or results may differ materially. Happinin! assumes no obligation, and does not intend, to update these forward-looking statements.
External Links or References. The Mobile App may contain or transmit to you links or references to other parties’ websites, which links are provided as a convenience to you only. Please be aware that we cannot be and are not responsible for the privacy or other practices of any such outside sites (which sites are not part of the Mobile App), and the Company expressly disclaims any and all liability related to such sites and sites relating thereto. The Company does not endorse, and is not responsible or liable for, directly or indirectly, any damage or loss caused or alleged to be caused by or in connection with any content, advertising, products or other information on or available from such linked sites or any link contained in a linked site. We encourage our users to consider this if they decide to visit such outside sites and to read the applicable privacy policies and terms of each such sites.
- Disclaimer of Representations and Warranties. YOU AGREE THAT YOUR USE OF THE MOBILE APP IS AT YOUR OWN RISK. EFFORTS BY THE COMPANY TO MODIFY THE MOBILE APP SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS. THE MOBILE APP, INCLUDING ALL CONTENT, INFORMATION OR SERVICES PROVIDED THROUGH, OR IN CONJUNCTION WITH, THE MOBILE APP, IS PROVIDED "AS IS," AS A CONVENIENCE TO ALL USERS WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND TO YOU OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES (1) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) OF INFORMATIONAL CONTENT OR ACCURACY, (3) OF NON-INFRINGEMENT, (4) OF QUIET ENJOYMENT, (5) OF TITLE, (6) THAT THE MOBILE APP WILL OPERATE IN AN ERROR FREE, TIMELY, SECURE, OR UNINTERRUPTED MANNER, IS CURRENT AND UP TO DATE AND ACCURATELY DESCRIBES THE COMPANY’S PRODUCTS AND SERVICES, OR IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (7) THAT ANY DEFECTS OR ERRORS IN THE MOBILE APP WILL BE CORRECTED, OR (8) THAT THE MOBILE APP IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM.
- Disclaimer of Liability. IN NO EVENT SHALL THE COMPANY AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, INTERNAL OPERATING UNITS, AFFILIATES, SUBSIDIARIES, SUBLICENSEES, SUCCESSORS AND ASSIGNS, INDEPENDENT CONTRACTORS, AND RELATED PARTIES (COLLECTIVELY, WITH THE COMPANY, THE “COMPANY ENTITIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS AND CONDITIONS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE MOBILE APP OR WITH THE DELAY OR INABILITY TO USE SAME, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE MOBILE APP, OR FOR ANY INFORMATION, PRODUCTS, AND SERVICES OBTAINED THROUGH OR VIEWED ON THE MOBILE APP, OR OTHERWISE ARISING OUT OF THE USE OF SAME, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, REGULATION, COMMON LAW PRECEDENT, OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF SUCH DAMAGES RESULT FROM THE COMPANY’S NEGLIGENCE OR GROSS NEGLIGENCE. BECAUSE SOME STATES/JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, LIABILITY OF THE COMPANY ENTITIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. ADDITIONAL DISCLAIMERS APPEAR WITHIN THE BODY OF THE MOBILE APP AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON YOUR USE OF THE MOBILE APP OR THE MATERIAL CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY. THIS INDEMNIFICATION SHALL APPLY TO THIRD-PARTY CLAIMS AS WELL AS CLAIMS BETWEEN THE PARTIES.
INDEMNIFICATION. You will indemnify, defend (or settle), and hold harmless the Company Entities from all claims, actions, proceedings, losses, settlements, judgments, liabilities, suits, damages, disputes, or demands, including without limitation any proceeding, investigation, or claim by a self-regulatory organization, state or federal securities agency or commission, and including reasonable attorneys’ fees and all other costs, fees, and expenses (collectively, “Claims”) against the Company Entities to the fullest extent permitted by law arising out of or in connection with (1) your conduct, provision of content, or use of the Mobile App, or such actions by any third party through you, (2) your violation of the rights of another person or party, (3) any Materials or User-Generated Content provided or made available by you, and (4) any breach or violation by you of your obligations under these Terms, including without limitation any breach of your representations and warranties herein. You will not settle any indemnified claim without the prior written consent of the Company Entities, such consent not to be unreasonably withheld. In connection with any Claims that may give rise to your indemnification obligations as set forth above, the Company Entities shall have the exclusive right, at their option, to defend, compromise and/or settle the suit, action or proceeding, and you shall be bound by the determination of any suit, action or proceeding so defended or any compromise or settlement so effected. The remedies provided in this Section are not exclusive of and do not limit any other remedies that may be available to the Company Entities pursuant to this Section.
CONFIDENTIALITY. You acknowledge that by use of portions of the Mobile App, you may use and you may acquire the Confidential Information. As used herein, “Confidential Information” means all confidential and/or proprietary information and trade secrets of the Company, whether or not memorialized, and in any form or media, regarding the Company or the Company’s business, including without limitation Feedback and Materials you submit to us relating to the Company’s intellectual property, technology, research and development, systems, software, business plans, business operations, strategies, financial information, technical information, customers, customer lists, suppliers, operating policies and procedures, and any third-party information that the Company is required to keep confidential where such information is not generally accessible without a password. “Confidential Information” includes any account passwords. You shall not at any time, directly or indirectly, for any purpose, use, copy or disclose to any other person or entity any Confidential Information, or permit others to do so, other than for the purposes expressly allowed hereunder. The Company may seek and obtain injunctive relief against the release or threatened release of Confidential Information, in addition to any other available legal remedies. You shall notify the Company immediately if you learn of any unauthorized possession or use of the Confidential Information and will promptly furnish all details of such possession or use to the Company.
COPYRIGHT AND OTHER INTELLECTUAL PROPERTY
- Site Ownership. The Mobile App and all content, organization, graphics, design, compilation, translation, and other matters related to the Mobile App (collectively, “Content”) are protected under applicable copyrights, trademarks, and other proprietary (including but not limited to intellectual property) rights pursuant to international conventions and U.S. and other laws. The Mobile App and all Content is the property of the Company and/or third party licensors, and all right, title and interest in and to the Mobile App and Content will remain with the Company or such third party licensors. Other product and company names mentioned herein may be the trademarks of their respective owners. You do not acquire ownership rights to the Mobile App or any Content other than any rights in the Materials that you may have. You will abide by any and all additional copyright notices, information, or restrictions contained in any Content. You will not modify, adapt, translate, reverse engineer, decompile, or disassemble the Mobile App or any Mobile App content. You may only use the Mobile App and the Content as expressly permitted herein, and any other use is prohibited. Any copying, republication, or redistribution of the Mobile App or Mobile App content, including by caching, framing, or similar means, is expressly prohibited without the prior written consent of the Company and/or the respective intellectual property rights holder identified in the subject content, which consent to be granted or withheld at the sole discretion of the rights holder.
Copyright Infringement Claims. Happinin! respects the intellectual property rights of others and expects our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Happinin!’s Designated Copyright Agent, identified below, with all information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512, summarized as follows: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online Site are covered by a single notification, a representative list of such works at that Site; (3) identification of 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 permit us to locate the material; (4) information reasonably sufficient to permit us to contact the complaining party; (5) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and (7) any other materials or information as may be required under the DMCA as amended from time to time or by the U.S. Copyright Office.
- Intellectual Property Rights. By downloading and using the Mobile App, you acknowledge that, in the event of any third-party claim that the Mobile App or your possession or use of the Mobile App infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement, and discharge of such intellectual property claim.
Pursuant to the DMCA, written notification of claimed copyright infringement must be submitted to Happinin!’s Designated Copyright Agent using the following contact information:
HAPPININ! DESIGNATED COPYRIGHT AGENT CONTACT INFO:
Postal Address: __________________
ALL INQUIRIES NOT RELEVANT TO THE ABOVE PROCEDURE WILL RECEIVE NO RESPONSE.
DISPUTE RESOLUTION (ARBITRATION CLAUSE)
- Binding Arbitration. You and the Company each agree to submit to binding arbitration in the event of a dispute, controversy or claim (each, a “Dispute”) arising out of or in connection with these Terms or the breach, termination, enforcement, interpretation or validity thereof (including the determination of the scope or applicability of these Terms to arbitrate), your or the Company’s rights and obligations under these Terms, the Mobile App, the use of the Mobile App, and/or the information, services and/or products that may be provided by or through or in connection with the Mobile App. The arbitration will be held in Baltimore, Maryland before one arbitrator on an individual basis and not as a class action. You expressly waive any right you may have to arbitrate a dispute as a class action. You also expressly waive your right to a jury trial. The arbitration will be administered by JAMS (www.jamsadr.com). You may obtain a copy of the rules of JAMS by contacting the organization. You and the Company shall agree on one arbitrator to conduct the arbitration. In the event the parties cannot agree on an arbitrator, the arbitrator will be selected in accordance with the JAMS rules. Each party shall be responsible for its own attorney, expert and other fees, unless such fees are awarded by the arbitrator to the prevailing party. Notwithstanding anything to the contrary in this Section, to the extent you have in any manner violated or threatened to violate the Company’s intellectual property rights, the Company may seek (and you will not contest) injunctive or other appropriate relief in any state or federal court of competent jurisdiction in Baltimore, Maryland, and you consent to exclusive jurisdiction and venue in such courts.
Arbitration Final. The arbitrator's award is final and binding on all parties. The Federal Arbitration Act, and not any state law concerning arbitration, governs all arbitration under this clause. Any court having jurisdiction may enter judgment on the arbitrator's award. If any part of this clause, other than waivers of class action rights, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. Notwithstanding anything to the contrary contained herein, if the waiver of class action rights contained herein is not enforceable as to any person or persons, such non-enforceability shall apply to such person or persons only, and all other persons shall continue to be governed by the Arbitration Clause.
- Giving Up Right of Class Action. These Terms provide that all Disputes will be resolved by binding arbitration and not in court or by jury trial. IF A DISPUTE IS ARBITRATED, YOU GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST THE COMPANY ENTITIES INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. WITHOUT LIMITATION, THIS INCLUDES GIVING UP YOUR RIGHTS TO BRING OR PARTICIPATE IN A CLASS ACTION AS SET FORTH IN ANY STATE STATUTE.
12.4 California Residents. If you are a California resident, to the extent permitted by California law, you waive California Civil Code Section 1542, which states: “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” as well as any other unknown claims under California Civil Code Section 1542 or any statute or common law principle of similar effect.
CHOICE OF LAW; JURISDICTION AND VENUE; WAIVER OF JURY TRIAL
To the maximum extent permitted by law, these Terms are governed by the laws of the State of Maryland, excluding any conflicts-of-law principle that would apply the law of another jurisdiction. To the extent a Dispute is not governed by the Arbitration Clause, you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Baltimore, Maryland in all disputes arising out of or relating to the use of the Mobile App or under these Terms; provided, however, that in the event the Company is sued or joined by a third party in any other court or in any other forum in respect of any matter which may give rise to a claim by the Company hereunder, you consent to the jurisdiction of such court or forum over any claim which may be asserted by the Company therein. You irrevocably consent to the exercise of personal jurisdiction by such courts in any such action. In addition, and notwithstanding the foregoing, you irrevocably waive, to the fullest extent permitted by law, any objection that you may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon you and may be enforced in any court in which you are subject to jurisdiction by a suit upon such judgment. Use of the Mobile App is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation this paragraph. To the extent a claim is not governed by the Arbitration Clause, the Company and you each hereby waive the right to a trial by jury in any court and in any suit, action or proceeding, whether in tort, contract, or otherwise, in which any such party is a party, as to any claim arising out of or in connection with these Terms, your or the Company’s rights and obligations under these Terms, the Mobile App, use of the Mobile App, and/or the services and/or products that may be provided by or through or in connection with the Mobile App.
- Viewing, Accessing and Use Outside the United States. If and when any products or services referenced on the Mobile App become available, they will become available in the United States and may not become available elsewhere. The Company makes no claims that the Mobile App or any products or services referenced therein may be lawfully viewed, accessed or used outside the United States. Access or use of the Mobile App or any products or services referenced therein may not be legal by certain persons or in certain countries. If you access or use the Mobile App from outside of the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction.
- No Joint Venture. You agree that no joint venture, partnership, employment or agency relationship exists between you and the Company as a result of these Terms or your use of the Mobile App.
- Headings. Section headings and other captions in these Terms are used solely for the convenience of the parties, have no legal or contractual significance, and shall not be used in interpreting, construing or enforcing any of the provisions of these Terms.
Survival. The provisions of the following sections shall survive any termination or expiration of these Terms: Disclosure Under Law, Materials, User Representations and Warranties, Disclaimers, Indemnification, Confidentiality, Copyright and Other Intellectual Property, Dispute Resolution (Arbitration Clause), Choice of Law; Jurisdiction and Venue; Waiver of Jury Trial, and Miscellaneous.
- No Waiver. The failure of the Company to enforce any provision of these Terms will not be construed as a waiver or limitation of the Company’s right to subsequently enforce and compel strict compliance with that provision or any other provision of these Terms.
- Assignment. No assignment, delegation or other conveyance of these Terms may be made by you (by operation of law or otherwise) without the prior written consent of the Company, to be given in its sole discretion. The Company may assign its rights and obligations hereunder to any other party.
- Statute of Limitations. Any cause of action you may have with respect to your use of the Mobile App must be commenced within one year after the claim or cause of action arises; thereafter, any such claim will be forever barred, without regard to any contrary legislation.
- Agreement Binding. In the event that any provision of these Terms is deemed to be unenforceable, said provision will be interpreted to reflect the original intent of the parties in accordance with applicable law, and the remainder of these Terms will continue in full force and effect.
- Notices. Notices to the Company under these Terms shall be sufficient only if in writing and transmitted via personal delivery, delivered by a major commercial rapid delivery courier service, or mailed, postage or charges prepaid, by certified or registered mail, return receipt requested, to the Company, with such notices being effective as of the date of actual, confirmed receipt by the Company. Notices to you are deemed effective if sent to the email, fax, mail address, or other contact information provided by you, and are deemed effective upon the earlier of being confirmed received or one day after having been sent.
Inquiries regarding these Terms should be directed to firstname.lastname@example.org