Terms of Service

Last Updated: October 4, 2019

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These Terms of Service (“Terms”) apply to your access to and use of the website, mobile application and other online products and services (collectively, the “Services”) provided by EBSW LLC (“Hapi,” “we,” or “us”). By using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 14 in Part B of these Terms. If you do not agree to these Terms, do not use our Services.

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.

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.

If you have any questions about these Terms or our Services, please contact us at [email protected] For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy.

PART A: USER SPECIFIC TERMS

The Hapi services are not intended to be medical, behavioral health or other healthcare service nor should any users, including Talkers and Listeners, treat them as such. Use of our Services is not intended to create a patient-professional relationship between Talkers and Listeners. Talkers understand and acknowledge that Listeners are not providing a medical or other healthcare service through the Services and that our Services are not intended to dissuade you from seeking medical or other professional healthcare advice, including behavioral health services. The materials available through our Services, including information obtained from the Listeners, is for informational purposes only and should not considered as a diagnosis or professional recommendation or endorsement of any medical treatment, product, drug or any other healthcare service. Our Services are not intended to be a substitute for professional medical advice or treatment. You should always seek the advice of your physician or other qualified healthcare professional with any questions you may have regarding a medical condition or treatment. You should never disregard professional medical advice or delay in seeking medical advice or treatment because of our Services. If you think you may have a medical emergency, contact 911 or your physician or other healthcare professional immediately.

Listeners understand that Hapi is not intended to be a medical service or a platform for Listeners to promote therapeutic services. Listeners agree that you will not represent yourself on the Services or to other users, including but not limited to Talkers, as providing medical, behavioral health or other healthcare services through our Services.

1. Talker Terms

Hapi “Talkers” are users of our Services who are looking to talk with compassionate Listeners about whatever is on the Talker’s mind. For more information on becoming a Talker, please visit our Talker page.

Hapi makes no representation or warranty that Talkers will be matched with a particular Listener or any Listener at all, or as to the quality of an individual Listener’s listening, or that Talkers will find speaking to a Listener useful, helpful or satisfactory. Talkers acknowledge that their interactions with Talkers may result in the sharing of sensitive or disturbing information and agree that all of Part B of these Terms, including but not limited to Sections 10 - 12, apply to any of their interactions with other users, including Listeners, that are negative or upsetting in any manner.

Talkers may use our Services without sharing personal information with other users, including Listeners. Talkers acknowledge that any disclosure of their personal information to other users, including Listeners, is at their own risk and that all of Part B of these Terms, including but not limited to Sections 10 - 12, apply to such disclosures.

Talkers understand that Listeners are wholly responsible for the accuracy of any descriptions of their own skills, credentials, qualifications, competence or background.

Payment. Talkers may purchase access to Listeners through our Service in blocks of minutes (“Minutes”) which will be visible in your virtual wallet (“Wallet”) through your Account. You are responsible for all fees, including any taxes, associated with your purchase of Hours. Hapi reserves the right to change or modify the terms and conditions regarding payment for Hours contained in these Terms or any policy or guideline of the Services at any time and in its sole discretion. Any changes or modifications will be effective immediately upon posting the revisions to the Services. Your continued use of the Services will confirm your acceptance of such changes or modifications; therefore, you should frequently review the Terms and applicable policies to understand the terms that apply.

2. Listener Terms

Hapi “Listeners” are users of our Services who sign up to engage with other users by being activated listeners. For more information on becoming a Listener, please visit our Listener page. Listeners acknowledge that their interactions with Talkers may expose them to sensitive or disturbing information and agree that all of Part B of these Terms, including but not limited to Sections 10 - 12, apply to any of their interactions with other users, including Talkers, that are negative or upsetting in any manner.

Confidentiality. In addition to complying with other requirements in Part B of these Terms, Listeners agree not to ask any Talker to disclose his or her real name, address, email, or social media handles and to keep confidential all information disclosed by Talkers during any interaction between Listeners and Talkers through the Services.

Representation of Accreditation. When completing your Listener profile on Hapi, you have the opportunity to describe yourself in a variety of ways. You represent and warrant that any descriptions of degrees, licenses, certifications, training programs, education, or other experience that you have obtained or performed is accurate and you agree to provide proof of any accreditation or professional experience upon request by Hapi. Regardless of any accreditation or professional experience you may have obtained or listed on your Hapi profile, you will not represent yourself on the Services or to other users, including but not limited to Talkers, as providing medical services, including mental health services, through our Services. You will not dissuade Talkers or any other users from seeking medical services, including mental health services, and will encourage Talkers and other users to seek professional advice and services if you are concerned about their well-being.

Compensation to Listeners. Hapi does not guarantee compensation of any kind to Listeners for their engagement with our Services. Hapi may offer compensation to Listeners under certain conditions. For more information about opportunities to receive compensation as a Listener on our Services, please visit our Listener page.

PART B: GENERAL TERMS

1. Eligibility

You must be at least 13 years of age to use our Services. 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 and you may not have more than one account on our Services.

2. User Accounts and Account Security

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. 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.

3. User Content

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 grant Hapi a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post, engage in conversations with other users or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username) may be visible to others.

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. 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 it business and hereby expressly consent to such uses by Hapi.

Prohibited Conduct and Content

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:

  • Engage in any harassing, threatening, intimidating, predatory, discriminatory or stalking conduct, or any conduct that encourages harm or violence towards others, including self-harm;
  • Use or attempt to use another user’s account without authorization from that user and Hapi;
  • Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or your affiliation or accreditation with an entity;
  • Sell, resell or commercially use our Services except as expressly permitted by Hapi;
  • Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
  • Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
  • Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
  • Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
  • Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
  • Develop or use any applications that interact with our Services without our prior written consent;
  • Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
  • Bypass or ignore instructions contained in our robots.txt file; or
  • Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

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:

  • Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
  • Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
  • May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
  • Impersonates, or misrepresents your affiliation with, any person or entity;
  • Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
  • Contains any unsolicited promotions, political campaigning, advertising or solicitations;
  • Contains any private or personal information of a third party without such third party’s consent, including but not limited to the Recordings and other content of communications you have with other users through the Services, as a Listener or a Talker, on publicly available areas of our Services;
  • Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
  • In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Hapi or others to any harm or liability of any type.

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.

5. Ownership; Limited License

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.

6. Trademarks

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.

7. Feedback

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.

8. Third-Party Content

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.

9. Indemnification

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.

10. Disclaimers

Your use of our Services is at your own risk. Except as otherwise provided in a writing by us, our Services and any content or interactions available therein, including but not limited to any communication you may have with other users (as a Listener, Talker or otherwise), are provided “as is” and “as available” without warranties of any kind, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Hapi does not represent or warrant that our Services, including but not limited to your interactions with other users on our Services, are accurate, complete, reliable, current or error-free. While Hapi attempts to make your use of our Services and any content or interactions available therein safe, we cannot and do not represent or warrant that our servers are free of viruses or other harmful components or that your interactions with other users through the Services will always be positive. You assume the entire risk as to the quality and performance of the Services and the quality of your interactions with other users through the Services.

11. Limitation of Liability

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 11 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.

12. Release

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.”

13. Transfer and Processing Data

In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.

14. Dispute Resolution; Binding Arbitration

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, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.

No Representative Actions. You and Hapi agree that any dispute arising out of or related to these Terms or our Services is personal to you and Hapi and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.

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 [email protected] 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 14, 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 are available on the JAMS website and are 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.

You and Hapi agree that these Terms affect interstate commerce and that the enforceability of this Section 14 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. 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.

Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Hapi will not have the right to assert the claim.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 14 by emailing [email protected]. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 15.

If any portion of this Section 14 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 14 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 14; 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 14 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 14 will be enforceable.

15. Governing Law and Venue

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.

16. Modifying and Terminating our Services

We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.

17. Severability

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.

18. Miscellaneous

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. You agree that communications and transactions between us may be conducted electronically.