Terms of Use

Effective Date: July 26, 2022


 IMPORTANT LEGAL INFORMATION: PLEASE READ THESE TERMS CAREFULLY.  IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE AND THE PRODUCTS AND SERVICES AVAILABLE FOR SALE THROUGH THE SERVICE.

THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN COURT (EXCEPT SMALL CLAIMS COURT PROCEEDINGS), TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.

Privacy

Your use of the Service is subject to our Privacy Policy, which is expressly incorporated into these Terms by reference.  Please review the policy for more on how we collect and use information.


Overview


Welcome! The following Terms of Use (“Terms”) apply to all visitors or users of our Happy Nation websites, microsites, and mobile websites (each, a “Site”) our mobile application(s) (each, an “App”) and your use of interactive features, widgets, plug-ins, content, downloads and/or other online services that we own and control and that post a link to these Terms (collectively with each Site and each App, the “Service”).  The Service is made available by Happy Nation Brand Management, LLC (“HN”, “we”, “our” or “us”).    


If you want to access or use the Service, then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations.   Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted.   Therefore, do not access and/or use the Service if you do not agree. In the event of a violation of these Terms, we reserve the right to seek all remedies available by law and in equity.


The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and the arbitration of certain disputes – we would not make the Service available to you.


By accessing and/or using the Service, you agree to be bound by these Terms.  In some instances, both these Terms and separate guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Service or to a service or product offered via the Service (in each such instance, and collectively “Additional Terms”).  To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.  

It is important that you read and understand these entire Terms before using the Service.  To ease review, each section below includes a brief introductory summary and a link to the full explanation.  Please note that the complete provisions, and not the headings or summaries shall govern.   You can click on the headings and “More” buttons to be taken to the full explanation.  Any capitalized terms have the meanings given to them where defined in the Terms.    

Linkable Table of Contents
1. Service Content, Ownership, Limited License and Rights of Others

A.         Content.  The Service contains a variety of: (i) materials and other items relating to Happy Nation and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Happy Nation (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing collectively, “Content”).  


B.         Ownership.  The Service (including past, present, and future versions) and the Content are owned or controlled by HN, our licensors and/or certain other third parties.  All right, title, and interest in and to the Content available via the Service is the property of HN or our licensors or certain other third parties, and is protected by U.S., Canadian and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.  HN owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.  


C.         Limited License.  Subject to your strict compliance with these Terms and any Additional Terms, HN grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only.  The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in HN’s sole discretion, and without advance notice or liability.  In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.


D.         Rights of Others.  When using the Service, you must respect the intellectual property and other rights of HN and others.  Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.  If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see  SECTION 6


E.         Special Notice.  HN and its affiliates have a no-tolerance policy regarding the use of our Content, including our Trademarks or names in metatags and/or hidden text. Specifically, the use of our Trademarks in metatag keywords is trademark infringement, and the use of Trademarks in page text, metatags, and/or hidden text for purposes of gaining higher rankings from search engines is unfair competition. Linking to any page on this Service is prohibited absent express written permission from HN. Framing, inline linking or other association of this Service or its or its suppliers’ software or HTML code, scripts, text, artwork, photographs, images, video, and audio with links, advertisements and/or other information not originating from the Service is expressly prohibited.

2. Service and Content Use Restrictions

A.         Service Use Restrictions.  You agree that you will not: (i) use the Service or any services we offer ourselves or through a third party if you are under the age of majority in your state of residence (a minor) unless your parent or legal guardian has agreed to these Terms on your behalf and granted you permission to use the Service or any services we offer; (ii) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (iii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iv) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to HN; (v) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (vi) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, HN, or other users of the Service; (vii) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User Content (defined below); (viii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users and HN); (ix) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (x) otherwise violate these Terms or any Additional Terms. HN reserves the right to block or deny access to the Service to anyone at any time for any reason.


B.         Content Use Restrictions.  You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of HN or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience. 


C.         Availability of Service and Content.  HN may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in HN’s sole discretion, and without advance notice or liability.  


D.         Reservation of All Rights Not Granted as to Content and Service.  These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service.   No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise.  All rights not expressly granted to you are reserved by HN and its licensors and other third parties.  Any unauthorized use of any Content or the Service for any purpose is prohibited.

3. Terms Applicable to Purchases

A.         Purchases Generally.  To purchase any products or services sold through the Service, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence or if you are a minor and have a valid gift card or a credit or debit card where an adult has listed you as an authorized user of their card.  By submitting any information to us or to our third-party credit card processor or service provider, you agree that you authorize us and/or our processor or service provider to charge your card/account at our convenience.   For any product or service that you order on the Service, you agree to pay the price applicable (including any sales taxes, shipping and handling fees and surcharges) as of the time you submit the order.  We will automatically bill your credit card or other form of payment submitted as part of the order process for such price.  


B.         Methods of Payment, Credit Card Terms and Taxes.  All payments must be made through any of the methods that are accepted at the time of payment by us or by our payment services provider. Your card issuer agreement governs your use of your designated card or payment account, and you must refer to that agreement and not these terms to determine your rights and liabilities as a card or account holder.  If for any reason your default payment method is declined or no longer available, you authorize us to charge any other payment method that you have authorized for use on your account with us.  You will remain responsible for any uncollected amounts.  You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so.  YOU, AND NOT US, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY.  You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes, shipping and handling fees and surcharges) at the rates in effect when the charges were incurred.  If we do not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by us or our agents.  Sales taxes, or other taxes, or any similar governmental charges are not included in the price of the products.  You are responsible for paying any such taxes, fees or charges imposed on your purchase.  We shall automatically charge and withhold the applicable taxes, fees or charges for orders to be delivered to addresses within any states or localities that we deem is required at the time of purchase. To the extent applicable, you agree to receive emails from us in connection with payments without regard to time of day.


C.         Return Policy and Orders/Shipping Policy.  All purchase transactions made through the Service are subject to our return policy and orders/shipping policy in effect at the time of purchase.  Our current Return Policy can be found here and is incorporated into these Terms by reference.   Our current Orders/Shipping Policy can be found here and is incorporated into these Terms by reference.  Some products or services may be made-on-demand and may be subject to additional policies, conditions and restrictions, and may take longer to ship. Such on-demand items are made and fulfilled to order, and will be noted on the product or services description.   Products or services made-on-demand may not be returned or exchanged unless damaged or incorrect on arrival due to our error or mistake. All products purchased from us are delivered to you by a third-party delivery company, pursuant to a shipping contract.  You shall become the owner of the products and shall assume the risk of loss at the time of delivery by us of the products to the third-party delivery company.  We shall not be in default if delivery is delayed or rendered impossible by forces of nature, war, civil commotion, governmental action, terrorism, fire, storm, flood, explosion, strikes, walkouts, pandemic, other industrial disturbances, utility, services or transportation interruptions or any other cause beyond our reasonable control. 


D.         Order Acceptance Policy.  Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell or that the price or availability of an item has been confirmed.   We reserve the right at any time after receipt of your order to accept or decline your order (or otherwise cancel your order) for any reason. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item or refuse to fulfil your order (in whole or in part). Your order will be deemed accepted by us upon our delivery of the products or services that you have ordered. We may require additional verifications or information before accepting any order. Unlike in-stock orders, certain products or services may be made-on-demand and may be shipped to you directly from the third party on-demand vendor and subject to additional delay due to production methods.  Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your card or payment account in the amount charged for the cancelled portion or the quantity not provided (if your card/account has already been charged for the order); or (b) we will not charge your card/account for the cancelled portion of the order or the quantity not provided.  Do not assume that a cancellation or change of an order you have placed with us has been effectuated until you receive a confirmation from us via email.  As stated above, you will be responsible for, and your credit/debit card or other third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your order was received.  We may refuse any order that is connected with a previous credit card dispute or previous apparent fraudulent activity.   We may refuse to accept any order if fraudulent activity is suspected and we may refuse to process any subsequent order from a customer who has a history of placing fraudulent orders.


E.         No Responsibility to Sell Mispriced Products.  We do our best to describe every item, product or service offered on the Service as accurately as possible.  However, we are human, and therefore we do not warrant that specifications or pricing on the Service is complete, accurate, reliable, current, or error-free.  In the event of any errors relating to the pricing or specifications of any item, product or service, we shall have the right to revoke any stated price and to correct the error, inaccuracy or omission (including after a purchase has been made) or to refuse or cancel any orders in our sole discretion (including any accepted orders).  If we charged your credit/debit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge.  If we accept and process your order where a pricing or specification error is obvious and unmistakable and could reasonably have been recognized by you as a mispricing or misdescription, we may cancel the sale, refund you any sums you have paid and require the return of any goods provided to you under the order.  If a product you purchased from us is not as described on the Service, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging, subject to the terms of the Return Policy.


F.         Modifications to Prices or Billing Terms.  Purchases of products and services on the Service are subject to availability. All descriptions, images, references, features, content, information, specifications, products and prices described or depicted in connection with the Service are subject to change at any time without notice.  We cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability and services, including for any items sold by third parties (if any).  We reserve the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice (including after a purchase has been made).  Descriptive, typographic and photographic errors are subject to correction and we shall have no liability of any kind for such errors.   We reserve the right to modify or cancel orders for any reason, including for typographical, pricing and other errors at any time.  We strive to display as accurately as possible the colors of the products shown on the Service; however, we cannot and do not guarantee that your monitor’s display of any color will be accurate.  PRODUCTS AND SERVICES DISPLAYED ON THE SERVICE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME. 


G.         Offers and Discounts.  For most promotional offers, such as coupons, vouchers, and discounts, restrictions apply.  See offer for full terms and conditions applicable thereto which shall be provided as part of each offer.  Please read the details of each offer, as coupons and promotional code restrictions vary.   We reserve the right to modify, suspend, impose conditions on or cancel offers at any time without notice.  If you return any of the items purchased with a discount offer, the discount or value may be subtracted from the return credit.   We have no obligation for payment of any tax in conjunction with the distribution or use of any offer.  You are required to pay any applicable sales tax related to the use of the offer.

4. Your Account

In order to access or use some (or potentially all) of the features on the Service, you may be required to first register for a user account through our registration process that we make available through the Service.  The Service’s practices governing any resulting collection and use of your personal information are disclosed in our Privacy Policy.  If  you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, that may impersonate another person, that belongs to another person, that violates the intellectual property or other right of any person or entity, or that is offensive.  We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password, for using a long and unique password that you do not use on or for other third-party websites, apps, or services,  and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, username, or password; (v) With respect to your account, you will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.  We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.

5. Your User Content and Community Usage Rules

A.         User Content.  We may at times invite you to respond to an invitation to post digital content in the manner specified (“User Content”), for example, by using the specified tags, (e.g., the hashtag and the brand tag) or by launching Content from the Service (the “Invitation”).  By “User Content,” we mean all content, including, without limitation, product reviews, testimonials, messages, text, illustrations, files, images, graphics, photos, comments, feedback, surveys, responses, sounds, music, videos, information, content, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein that comprise the content that you post in response to such an Invitation or on the Service.  By submitting your User Content or by applying any required hashtags or other tags, you agree to these Terms.  Specifically, you:

If you do not fully consent to and authorize use of User Content as outlined here, do not respond to the Invitation.  If you want to have your User Content taken off the Service at any time, please contact us.  Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User Content and you remain ultimately responsible for it.

•Represent that you are a legal resident of the U.S., the District of Columbia, Puerto Rico, or other United States territory or possession, and are at least eighteen (18) years of age or the age of majority in your jurisdiction of residence.
•Represent that you own or have secured all rights, title, and interest in the User Content.


•Represent that you have obtained express permission from everyone who took, or is appearing in, your User Content.

•Acknowledge that you will not be compensated in any way for our use of your User Content.

•Represent that you understand that we may retouch, edit or otherwise alter User Content (such as photos) without your ability to inspect or pre-approve.


(i)         Non-Confidentiality of Your User Content.  Except as otherwise described in the Service’s posted Privacy Policy or any Additional Terms, you agree that: (a) your User Content will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned; and (b) HN does not assume any obligation of any kind to you or any third party with respect to your User Content.  Upon HN’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms.  You acknowledge that your User Content may be viewed by any visitor to the Service and, accordingly, agree not to submit any User Content that contains detailed or sensitive information (such as personal information), whether concerning you or others.  In your communications with HN, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”).  Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User Content and licensed to us as set forth below.  In addition, HN retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials.  HN’s receipt of your Unsolicited Ideas and Materials is not an admission by HN of their novelty, priority, or originality, and it does not impair HN’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

 

(ii)        License to HN of Your User Content.  Except as otherwise described in any applicable Additional Terms, you grant to HN the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.  Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User Content for any purposes whatsoever, including developing, producing, and marketing products and/or services.  You understand that in exercising such rights, metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so.   In order to further effect the rights and license that you grant to HN to your User Content, you also hereby grant to HN, and agree to grant to HN, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User Content, without any obligation or remuneration to you.   Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you.  To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights.  You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5(A)(ii).  


(iii)       Exclusive Right to Manage Our Service.  HN may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User Content, and HN may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User Content without notice or any liability to you or any third party in connection with our operation of User Content venues in an appropriate manner.  Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Community Usage Rules (defined in Section 5(B).   Such User Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User Content on the Service or elsewhere.  


(iv)       Enforcement.  HN has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at HN’s cost and expense, to which you hereby consent and irrevocably appoint HN as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest). 


B.         Community Usage Rules.  As a user of the Service, these Community Usage Rules are here to help you understand the conduct that is expected of visitors of the Service’s online forums and user content areas (collectively, “Communities”).


(i)         Nature of Community Usage Rules.  Your participation in the Communities is subject to all of the Terms, including these Community Usage Rules:


•           Your User Content.  All of your User Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms.   Your User Content should not contain any visible logos, phrases, or trademarks that belong to third parties.   Do not use any User Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet.  If anyone contributes to your User Content or has any rights to your User Content, or if anyone appears or is referred to in the User Content, then you must also have their permission to submit such User Content to HN (for example, if someone has taken a picture of you and your friend, and you submit that photo to HN as your User Content, then you must obtain your friend’s and the photographer’s permission to do so.).


•           No Pictures, Videos, or Images of Anyone Other Than You and Your Friends and Family.  If you choose to submit photos to the Service, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their express permission to submit it.


•           Act Appropriately.  All of your Service activities must be venue appropriate, as determined by us.  Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy.  If you think your User Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Service.  Cursing, harassing, bullying, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited.  Your User Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap.   Your User Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.  


•           Do Not Use for Commercial or Political Purposes.  Your User Content must not advertise or promote a product or service (other than products or services of HN) or other commercial activity, or a politician, public servant, or law.


•           Do Not Use for Inappropriate Purposes.  Your User Content must not promote any infringing, illegal, or other similarly inappropriate activity. 


•           Be Honest and Do Not Misrepresent Yourself or Your User Content.   Do not impersonate any other person, user, or company, and do not submit User Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company. 


•           Others Can See.  We hope that you will use the Communities to exchange information and content and have venue appropriate discussions about HN products, services and campaigns.  However, please remember that the Communities are public or semi-public and User Content that you submit on the Service within a Community may be accessible and viewable by other users.  Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, email address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.  


•           Don’t Share Other Peoples’ Personal Information.  Your User Content must not reveal another person’s address, phone number, e-mail address, social security number, payment card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by HN. 


•           Don’t Damage the Service or Anyone’s Computers or Other Devices.   Your User Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Service or any computer or other Device.


If you submit User Content that HN reasonably believes violates these Community Usage Rules, then we may take any legally available action that we deem appropriate, in our sole discretion.  However, we are not obligated to take any action not required by law.  We may require, at any time, proof of the permissions referred to above in a form acceptable to us.  Failure to provide such proof may lead to, among other things, the User Content in question being removed from the Service.


(ii)        Your Interactions With Other Users; Disputes.  You are solely responsible for your interaction with other users of the Service, whether online or offline.  We are not responsible or liable for the conduct or content of any user.   We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users.  Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.


C.         Alerting Us of Violations.  If you discover any content that violates these Terms, then you may report it to us here.  For alleged infringements of intellectual property rights, see  SECTION 6 and  SECTION 7.


D.         Additional Guidelines for Customer Reviews.  The following guidelines apply to User Content that constitutes a review of a Happy Nation product or service (each, a “Review”), and these additional guidelines shall apply in the event that your User Content is a Review:


•           Reviews may only be of products or services sold on the Service and you must be a bona-fide user of the HN product or service that you reference in your Review;

 

•           Reviews must be appropriate to the forum. For example, Reviews aren’t the place for rants about political ideologies, HN’s employment practices, extraordinary circumstances, or other matters that don’t address the HN product or service you are reviewing; 

 

•           Reviews should reflect your genuine experience with HN’s products and services and be a true and accurate reflection of your honest experience(s), view(s), finding(s), belief(s) and opinion(s) based on your personal use of the HN product/service you are reviewing;

 

•           Don’t post fake Reviews, don’t post the same Review multiple times, and don't post Reviews for the same product or service from multiple accounts;

 

•           Reviews should reflect your first-hand experience, not what you heard from someone else, or what you saw in the news. Tell your own opinion without resorting to broad generalizations and conclusory allegations;

 

•           Make sure your Review is factually correct. Feel free to express your opinions, but don’t exaggerate or misrepresent your experience;

 

•           Reviews should not make any product performance or attribute claims about HN products or services;

 

•           If you received a HN product or service from HN for free (as a gift from us or otherwise) (a “Gift”), in order to comply with your obligations set forth in the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (see here) (the “Guides”), your Review must contain a disclosure of the fact that you received the Gift free of charge from Happy Nation (the “Disclosure”).  Such Disclosure must be prominent, clear and conspicuous and communicated in a way that a reader of your Review is likely to notice and understand. It’s not too complicated – it should just be straightforward and upfront.  Here are a couple of examples of how this Disclosure can be made very easily and simply:

 

  •       •“I accepted a free [insert description of item(s) received] from Happy Nation in connection with my review.”
  •       •“Thanks Happy Nation for the free [insert description of item(s) received] and I think...”

 

Any HN team member or employee who writes a Review must disclose that they are affiliated with or compensated by HN.

 

      • We may restrict your ability to submit or post a Review when we detect unusual reviewing behavior, or to maintain the best possible shopping experience; and

 

            •           If your Review is removed or rejected because it does not comply with these Terms, you may not resubmit a Review on the same product or service, even if the resubmitted Review includes different content.

7. Procedure For Alleging Infringement of Other Intellectual Property

If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes all of the following:

(a)        a legend or subject line that says: “Intellectual Property Infringement Notice”;

(b)        a description of the intellectual property that you claim has been infringed; 

(c)        a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears); 

(d)        your full name, address, telephone number and email address; 

(e)        a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law; 

(f)         a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and

(g)        your electronic or physical signature. 

We will act on such notices in our sole discretion.  We may send the information that you provide in your notice to the person who provided the allegedly infringing material. Any user of the Service that fails to respond satisfactorily to HN with regard to any such notice, is subject to suspension or termination.  

8. Questions

If you have a question regarding using the Service, you may contact us. You acknowledge that the provision of customer support is at HN’s sole discretion and that we have no obligation to provide you with customer support of any kind.

9. Linked-To Websites; Advertisements; Dealings with Third Parties

A.         Linked Services; Advertisements.  The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites (“Linked Services”), including websites operated by advertisers, licensors, licensees, recruitment services and certain other third parties who may have business relationships with HN.  HN may have no control over the content, operations, policies, terms, or other elements of Linked Services, and HN does not assume any obligation to review any Linked Services.  HN does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items.  Furthermore, HN is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Services.  Finally, HN will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services.  Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services.   HN disclaims all liability in connection therewith. 

B.         Dealings with Third Parties.  Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like).  HN disclaims all liability in connection therewith. 

10. Wireless Features

A.         Mobile Website. We make our Service available in a mobile-friendly format as well (our “Mobile Site”).  All mobile phones that have Internet access can make use of the Mobile Site.  You should be aware that some of the special pricing and promotions offered on the full html website may not be available on the Mobile Site and that some of the special pricing and promotions offered on the Mobile Site may not be available on the full html website.   

B.         Wireless Features.  The Service may offer certain features and services that are available to you via your wireless Device.  These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”).  Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features.  Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance.   Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device.  You should check with your carrier to find out what plans are available and how much they cost.  Contact your carrier with questions regarding these issues.

C.         Terms of Wireless Features.  You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties.   Further, we may collect information related to your use of the Wireless Features.  If you have registered via the Service for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes. 

11. Dispute Resolution

PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.

 For purposes of this Dispute Resolution section, “HN”, “we”, “our” or “us” refers to the fullest extent permissible by law, Happy Nation Brand Management, LLC, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agencies, agents, vendors, licensors, licensees, contractors, successors, and assigns.

A.         First –Mandatory Informal Resolution Process for Disputes and Excluded Disputes.  If any controversy, allegation or claim arises out of or relates to the Service, including, without limitation, gift cards offered via the Service, any advertising or marketing communications regarding HN or the Service, any products or services sold or distributed through the Service, the Content, your User Content, these Terms, any Additional Terms, or any other controversy, allegation, dispute or claim against HN, its parent, and all of their related entities, regarding any interaction or transaction between you and or HN, whether based in contract, statute, regulation, ordinance, tort—including, but not limited to, fraud, any other intentional tort or negligence—common law, constitutional provision respondent superior, agency or any other legal or equitable theory, whether arising before or after the effective date of these Terms (collectively, “Dispute”), excluding claims related to any of HN’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 11(D)), then you and we agree to make a good faith effort to resolve the Dispute   informally prior to initiating a formal arbitration proceeding. 

If you or we intend to initiate an arbitration proceeding, you or we must first send a written notice to the other providing a detailed description of the Dispute; your name and contact information (address, telephone number, and email address) or our contact information; sufficient information to enable you or us to identify any transaction at issue; and a detailed description of (1) the nature and basis of any claims, and (2) the nature and basis of the relief sought, with a detailed calculation for it. Your notice to us must be personally signed by you (and your attorney if you are represented).  Our notice to you will be personally signed by a HN representative (and our attorney if we are represented).  If requested by us in connection with a notice initiated by you, you must personally appear at and participate in an individualized telephone settlement conference (if you are represented by an attorney, your attorney may also participate) to discuss the Dispute in a good faith effort to resolve it.  If requested by you in connection with a notice initiated by us, a HN representative must personally appear at and participate in an individualized telephone settlement conference (if we are represented by an attorney, our attorney may also participate).

Your notice to us must be sent via email to: generalcounselVS@victoria.com.  Our notice to you will be sent to you based on the most recent contact information that you have provided to us. But if no such information exists or if such information is not current, then we have no obligation under this Section 11(A). For a period of sixty (60) days from the date of receipt of a fully completed notice from the other party, HN and you will engage in a good faith dialogue in order to attempt to resolve the Dispute. If the Dispute is not resolved within sixty (60) days after receipt of the fully completed notice (which period can be extended by agreement of the parties), you or we may commence arbitration consistent with the process set forth in Section 11(B) below. Compliance with this informal dispute resolution process is a condition precedent to initiating arbitration. The party initiating arbitration must include as part of the demand for arbitration a personally signed certification of compliance with the informal dispute resolution process (if you initiate arbitration, then the certification must be signed by you and by your attorney, if you are represented; if we initiate arbitration, then the certification must be signed by a HN representative and our attorney, if we are represented.).  

The sole exceptions to the requirement to arbitrate are that: (1) either party may elect to have individual claims heard in small claims court if those claims otherwise qualify for small claims court and as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction; and (2) each party may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Any applicable statute of limitations shall be tolled while the parties engage in this informal dispute resolution process. If the sufficiency of a notice or compliance with this informal dispute resolution process is at issue, it may be decided by a court at either party’s election, and any formal dispute resolution proceeding shall be stayed pending resolution of the issue.  A court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration. 

 

B.         Binding Arbitration.  If we cannot resolve a Dispute as set forth in Section 11(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the fully completed notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND HN (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT—INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION.  THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICE.

Dispute shall be interpreted broadly.  For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all Disputes, including the “No Class Action Matters” set forth in Section 11(E) below. If you reside in the U.S. (and as applicable to U.S. residents), you agree that this constitutes a transaction in interstate commerce and certain portions of this Section 11 are deemed to be a “written agreement to arbitrate” pursuant to the FAA. You and HN agree that we intend that this Section 11 satisfies the “writing” requirement of the FAA. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY TO THE FULLEST EXTENT PERMITTED BY LAW. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS OR REPRESENTATIVE ACTIONS. HN and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 11(H) below, shall apply to and govern, as appropriate, any and all Disputes damages arising between you and HN without regard to any jurisdiction’s choice of law principles. 

Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Consumer Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA consistent with these Terms. If the AAA is unavailable or unwilling to administer the arbitration consistent with these Terms, then the parties agree that the arbitration will be administered by National Arbitration and Mediation (“NAM”) under its then-current rules as modified by these Terms.  If NAM is unavailable or unwilling to administer the arbitration consistent with these Terms, the parties will  work together in good faith to agree on an arbitration administrator that will do so consistent with these Terms.  If the parties cannot agree on an arbitration administrator, then they will petition a court of competent jurisdiction to appoint one that will administer the arbitration consistent with these Terms. The AAA rules are available at https://www.adr.org/Rules.  The NAM rules are available at https://www.namadr.com/resources/rules-fees-forms/. If you have any questions about how to access information about the AAA or NAM, please contact them (their up-to-date contact information is available on their websites) or HN at generalcounselvs@victoria.com.

 

C.         Arbitration Process. To begin an arbitration proceeding, after satisfying the informal process identified in Section 11(A) above, you or we must (1) send a personally signed demand for arbitration that describes (a) the nature and basis of the claims, and (b) the nature and basis of the relief sought, including a detailed calculation for it; (2) send the signed certification of completion of the process in Section 11(A); and (3) contact the AAA, NAM or the applicable court-appointed arbitration administrator and follow the appropriate procedures to commence the arbitration.  HN and you, if you or we are represented by an attorney in connection with your or our arbitration demand, agree that any arbitration demand must also be signed by your or our attorney.  By signing the arbitration demand, the attorney certifies to the best of their information, knowledge, and belief, formed after a reasonable inquiry that: (1) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims or other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (4) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery.  The arbitrator shall be authorized to impose any sanctions available under Federal Rule of Civil Procedure 11. Your demand for arbitration must be sent to us via email at: generalcounselvs@victoria.com.  Our demand for arbitration to you will be sent to you based on the most recent contact information that you have provided to us. 

Except as provided below, you may choose to have the arbitration conducted by phone, video, in-person or through written submissions, except any Dispute over $50,000 shall have an in-person or video hearing. HN reserves the right to request a hearing in any matter from the arbitrator.  If you initiate arbitration, then you agree to personally appear at any in-person, video, or telephonic hearing (along with your attorney if you are represented). If we initiate arbitration, then HN agrees to have a representative appear at any in-person, video, or telephonic hearing (along with our attorney if we are represented).  If an in-person arbitration hearing is required, then it will be conducted at a location that is reasonably convenient to you or at another mutually agreed location.  The arbitrator shall be located in reasonable proximity to you or the mutually agreed location if a hearing is required or requested consistent with the above.

Arbitration fees shall be governed by the applicable arbitration administrator rules, unless they are authorized by law or the arbitrator determines that a claim or proceeding was frivolous or brought for an improper purpose or in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); but if the applicable arbitration rules or laws require HN to pay a greater portion or all of such fees and costs in order for this Section 11 to be enforceable, then HN will have the right to elect to pay the fees and costs and proceed to arbitration.  In addition, the provisions of Federal Rule of Civil Procedure 68 (cost-shifting) shall apply and be enforced by the arbitrator after entry of an award. 

The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis.  The arbitrator shall issue a reasoned written award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. Except as expressly provided herein, all issues, including scope, are for the arbitrator to decide. The arbitration award shall be binding only among the parties to the arbitration and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. This arbitration provision shall survive termination of these Terms or the Service. 

 

 D.         Injunctive Relief.  The foregoing provisions of this Section 11 will not apply to any legal action taken by HN to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User Content and/or HN’s intellectual property rights (including any that HN may claim are in dispute), HN’s operations, and/or HN’s products or services.   

 

E.         No Class Action Matters. YOU AND HN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS , PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. This Section 11(E) (the class action waiver) is an essential part of these Terms. If, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for public injunctive relief), and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be stayed pending arbitration of the remaining claims. Specifically, and notwithstanding anything to the contrary in this Section 11, the arbitrator may not issue a “public injunction” and any such “public injunction,” if permitted, may be awarded only by a federal or state court. In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator. Notwithstanding any other provision of this Section 11, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.

 

F.         Jurisdictional Issues.  Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or federal court in Franklin County, Ohio. Accordingly, you and HN consent to the exclusive personal jurisdiction and venue of such courts for such matters.

 

G.          Small Claims Matters Are Excluded from Arbitration Requirement.  Notwithstanding the foregoing, either of us may elect to have heard a qualifying claim or Dispute (but not Excluded Disputes) in small claims court of competent jurisdiction as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction and advances only on an individual (non-class, non-representative basis). 

 

H.         Governing Law and Forum.  Except as expressly provided above, these Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of Ohio, without regard to its conflicts of law provisions. To the fullest extent permitted by law, to the extent any matter proceeds in court, except for small claims court and the Excluded Disputes set forth above, you consent to the exclusive jurisdiction of the federal and state courts located in the State of Ohio.


I.          Additional Procedures for Mass Arbitration. If your claim is part of twenty-five (25) or more similar claims asserted against HN by the same or coordinated counsel or are otherwise coordinated, you understand and agree that these additional procedures apply, and the resolution of your Dispute might be delayed. You agree to the following staged process and application of the AAA Multiple Consumer Case Filing Fee Schedule (or NAM fee schedule). Your attorney and HN shall each select twenty-five (25) cases (per side) to proceed in individual arbitration proceedings as part of an initial staged bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged bellwether process.  Each side may elect to have its cases for any given set of proceedings selected by it, by the AAA (or NAM), or randomly.  The parties agree that after completion of the first set of fifty (50) individual arbitration proceedings, they shall participate in a mediation session with a former state or federal court judge in an effort to resolve the remaining claims or to discuss potential ways to streamline the procedures for adjudicating the remaining claims. If the parties are unable to resolve the remaining cases after the conclusion of the initial fifty (50) proceedings, each side shall select another twenty-five (25) cases (per side) to proceed to individual arbitration proceedings as part of a second staged bellwether process.  The remaining cases shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of a staged bellwether process. Each side may elect to have its cases for any given set of proceedings selected by it, by the AAA (or NAM), or randomly.  The parties agree that after completion of the second set of fifty (50) individual arbitration proceedings, they shall participate in a mediation session with a former state or federal court judge in an effort to resolve the remaining claims or to discuss potential ways to streamline the procedures for adjudicating the remaining claims.  If the parties are unable to resolve the remaining cases after the conclusion of the second set of fifty (50) proceedings, this staged process shall continue, consistent with the parameters set forth above, except that the parties may elect to meet and confer to discuss increasing the number of cases to proceed in each set of staged proceedings or to otherwise modify the procedures to resolve the remaining claims as informed by the prior arbitration proceedings. A single arbitrator shall preside over each case, and the same arbitrator may not be assigned to more than one case in any given set of fifty (50) (or more should the parties agree) proceedings unless the parties agree otherwise. The arbitrators assigned to each set of proceedings shall not be identical. This staged process shall continue, consistent with the parameters identified above, until all the claims included in the mass arbitration, including your case, are adjudicated, settled, withdrawn, or otherwise resolved. You agree that HN may request an in-person, video, or telephonic hearing from the arbitrator when your claim is selected to move forward as part of a staged process.  If a hearing is required, you agree that you will personally appear (with your attorney if you are represented). The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this process from the time the first cases are selected for a staged process until the time your case is selected to proceed as part of a staged process, settled, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands. The parties agree to participate in this process in good faith. Consistent with these additional procedures, the parties may elect to meet and confer, enter into a "cooling off" period, and/or further mediate any or all of the remaining claims at any time or to discuss and potentially agree to modifications to this process to ensure efficiency and an open dialogue throughout this process.

 

J.          Future Changes to Dispute Resolution Section. Notwithstanding any provision to the contrary, we agree that if HN makes any future changes to this Section 11 (other than a change to the email address), you may reject any such change by sending us written notice within thirty (30) days of the change to the email address provided above. This is not an opt-out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section 11

12. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK.  THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS.  Therefore, to the fullest extent permissible by law, HN, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agencies, agents, vendors, licensors, licensees, contractors, successors, and assigns (collectively, the “HN Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to: 

(a)     the Service (including the Content and the User Content); 

(b)     the functions, features, or any other elements on, or made accessible through, the Service; 

(c)     any products, services or instructions offered or referenced at or linked through the Service; 

(d)     security associated with the transmission of your User Content transmitted to HN via the Service; 

(e)     whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);

(f)      whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, reliable or safe;

(g)     whether any defects to, or errors on, the Service will be repaired or corrected; 

(h)     whether your access to the Service will be uninterrupted, timely, secure or error-free; 

(i)      whether the Service will be available at any particular time or location; and

(j)      whether your use of the Service is lawful in any particular jurisdiction.  

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A HN PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE HN PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. 

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

13. LIMITATIONS OF OUR LIABILITY

TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY HN PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT, ECONOMIC,EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:

(a)        the Service (including the Content and the User Content; 

(b)        your use of or inability to use the Service, or the performance of the Service; 

(c)        any action taken in connection with an investigation by HN Parties or law enforcement authorities regarding your access to or use of the Service;

(d)        any action taken in connection with copyright or other intellectual property owners or other rights owners; 

(e)        any injury you sustain directly or indirectly as a result of your use of the Service or any products or services purchased through the Service;

(f)         any errors or omissions in the Service’s technical operation; or 

(g)        any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.


The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if HN Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).  


Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.  


EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HN PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID HN TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.  FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 11(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 11(A); (b) filing for arbitration as set forth in Section 11(B); or (c) filing an action in state or Federal court.

14. Waiver of Injunctive or Other Equitable Relief

IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND.  THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY HN (INCLUDING YOUR LICENSED USER CONTENT) OR A LICENSOR OF HN.

Notwithstanding the above, if a court determines that a claim for public injunctive relief may not be waived and all appeals from that decision have been exhausted (or it is otherwise final), then the parties agree that any claim for public injunctive relief shall be stayed pending arbitration of the remaining claims.

15. Updates to Terms

These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use).   AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU ACCESS, SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR ACCESS OR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW ACCESS, USE AND TRANSACTIONS. You agree that: (i) we may give you notices of new, revised or changed Terms and other important matters by prominently posting notice on the webpage hosting these Terms, or in another reasonable manner that we may elect; and/or (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address by updating your account information. Therefore, you should review the posted terms of use and any applicable Additional Terms each time you access or use the Service (at least prior to each transaction or submission). The Additional Terms will be effective as to new access, use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously accessed or used the Service will continue to apply to such prior access or use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or Additional Terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the web page hosting these Terms and the email you associated with your account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice. You can reject any new, revised or Additional Terms by discontinuing access or use of the Service and related services.

16. General Provisions

A.         HN’s Consent or Approval.  As to any provision in these Terms or any Additional Terms that grant HN a right of consent or approval, or permits HN to exercise a right in its “sole discretion,” HN may exercise that right in its sole and absolute discretion.  No opt-in consent or approval may be deemed to have been granted by HN without being in writing and signed by an officer of HN.    

B.         Indemnity.  You agree to defend, indemnify, and hold the HN Parties harmless from and against any and all claims, suits, demands, actions, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to: (i) your User Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) HN Parties’ use of the information that you submit to us (including your User Content) (all of the foregoing, “Claims and Losses”).  You will cooperate as fully required by HN Parties in the defense of any Claims and Losses.  Notwithstanding the foregoing, HN Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses.  HN Parties reserve the right to assume the exclusive defense and control of any Claims and Losses.  You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a HN Party.


C.         Operation of Service; Availability of Products and Services; International Issues.  The Service is operated in the United States, and is primarily intended for users located in the U.S.  HN makes no representation that the Service is appropriate or available for use beyond the U.S.  If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.  We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.  You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.


D.         Severability; Interpretation.  If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect).   To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.   Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”.  The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.


E.         Communications.  As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically.  Please note that we are not obligated to respond to inquiries that we receive.  You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.  


F.         Investigations; Cooperation with Law Enforcement; Termination; Survival.  HN reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by HN in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party.    Any suspension or termination will not affect your obligations to HN under these Terms or any Additional Terms.   Upon suspension or termination of your access to the Service, or upon notice from HN, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service.  The provisions of these Terms and any Additional Terms (including the terms applicable to User Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to HN in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.


G.         Assignment.  HN may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice.  These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of HN.   


H.         No Waiver.  Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or HN in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.  For avoidance of doubt, nothing herein shall be construed to restrict HN’s right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.


I.          California Consumer Rights.  Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254.   Their website is located at: http://www.dca.ca.gov.


J.         Connectivity.  You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.

17. Terms Applicable For Apple Device Users

If you are accessing or using the Service through a Device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”):

(i)         To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and HN and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below.

(ii)        The license granted to you in Section 1 of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service. 

(iii)       You acknowledge that HN, and not Apple, is responsible for providing the Service and Content thereof.

(iv)       You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service. 

(v)        To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.

(vi)       Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and HN, HN and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  

(vii)      Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.

(viii)     You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple 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. 

(ix)       When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.

(x)        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.