TERMS OF USE
1. INTRODUCTION
Welcome to www.projecthappiness.org (the “Website”). The Website is owned and operated by Project Happiness (“PH”, “us” or “we”).
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE WEBSITE. By using the Website, you signify your agreement to these Terms of Use. If you do not agree to these Terms of Use, you may not use the Website. In addition, when you use any of our current or future services, you will also be subject to our guidelines, terms, conditions and agreements applicable to those services (such guidelines, terms, conditions and agreements, together with these Terms of Use, collectively, the “Terms”). If these Terms of Use are inconsistent with the guidelines, terms and agreements applicable to those services, these Terms of Use will control.
2. PRIVACY AND YOUR ACCOUNT
Please review our Privacy Policy, which is incorporated by reference herein and also governs your use of the Website, to understand our privacy practices.
We may sell products usable or viewable by children, but sell them to adults who can purchase with a credit card or other permitted payment method. If you are under 18, you may use the Website only with the involvement of a parent or guardian. We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion.
3. CONSIDERATION
You agree that these Terms of Use are supported by reasonable and valuable consideration, the receipt and adequacy of which you hereby acknowledge, including, without limitation, your access to and use of the Website and data, materials and information available at or through the Website.
4. PROPRIETARY RIGHTS; RESTRICTIONS ON USE
All content contained on the Website, such as text, graphics, logos, icons, images, audio and video clips, digital downloads, data compilations, and software (collectively, “Content”), is our property or the property of our licensors or licensees, and the compilation of the Content on the Website is our exclusive property, protected by United States and international copyright laws, treaties and conventions. All software used on the Website is our property or the property of our software suppliers and protected by United States and international copyright laws, treaties and conventions.
Any trademarks, service marks, graphics, logos, page headers, icons, scripts and trade names (each, a “Mark”) contained on the Website are proprietary to us or our licensors or licensees. Our Marks may not be used (a) in connection with any product or service that is not ours, (b) in any manner that is likely to cause confusion among users, or (c) to disparage or discredit PH or anyone else. All other Marks not owned by PH that appear on the Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. Without limiting the foregoing, all goodwill arising from any use of PH Marks shall insure solely to PH.
Except as expressly permitted by these Terms, no Content of the Website or any other Internet site owned, operated, licensed, or controlled by us may be copied, reproduced, republished, downloaded (other than page caching), uploaded, posted, transmitted or distributed in any way, or sold, resold, or otherwise exploited for any commercial purpose. You shall: (a) keep intact all copyright, trademark and other proprietary rights notices; (b) not modify any of the Content; (c) not use any Content in a manner that suggests an association with any of our products, services or brands; and (d) not download Content so as to avoid future downloads from the Website. Your use of Content on any other website or computer environment is strictly prohibited.
You further agree not to: resell or make any commercial use of the Website or any Content (except as expressly permitted under these Terms); collect and use any product listings, descriptions, or prices; download or copy account information for the benefit of anyone else; or use any form of data mining, robots, or similar data gathering and extraction tools. You may not frame, or utilize framing techniques to enclose any Content or other proprietary information, or use any meta tags or any other “hidden text” utilizing any such intellectual property, without our and each applicable owner’s express written consent.
5. CURRICULUM MATERIALS
5.1 Curriculum Materials Overview. PH owns or has the rights to, and may make available on the Website, certain educational and training materials and curricula (the “Curriculum Materials”), which may include some or all of the following materials: (i) Assessment Tools; (ii) Circles of Happiness; (iii) Get Happy & Cultivate Compassion in 15 Minutes a Day; (iv) Jumpstart to Happiness; (v) The H.A.P.P.I.N.E.S.S. Series: Enhancing Social and Emotional Skills for Elementary Schools (K-5); (vi) The H.A.P.P.I.N.E.S.S. Series: Enhancing Social and Emotional Skills for Elementary Schools (Middle School); (vii) Leadership Club Guidebook (High School); and (viii) Happiness Habits. Curriculum Materials may include instructional videos, online courses, and other materials which are available to purchase through the Website (“Paid Curriculum Materials”) and/or materials that are generally accessible through the Website at no additional charge (“Free Curriculum Materials”). All Curriculum Materials are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. PH reserves all rights in the Curriculum Materials not expressly granted in these Terms.
5.2 License to Free Curriculum Materials. Unless otherwise indicated, all Free Curriculum Materials are, subject at all times to the additional terms and conditions of these Terms, made available to you under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 United States License (available at http://creativecommons.org/licenses/by-nc-nd/3.0/us/) (the “Creative Commons License”). By downloading or otherwise accessing such Free Curriculum Materials, you agree to comply with all the terms of the Creative Commons License, in addition to the terms and conditions of this Agreement.
5.3 License to Paid Curriculum Materials. When you purchase Paid Curriculum Materials through the Website, your purchase may include (i) physical copies of books and/or other Paid Curriculum Materials that are shipped to the address you specify at the time of purchase (“PH Products”), (ii) electronic copies of written instructional materials (“Electronic Materials”), and/or (iii) a license for you or students authorized by you (“Authorized Users”) to access and view interactive online content, online courses, instructional online videos, and audio-visual online content (collectively, “Interactive Content”) through the PH Website or the websites of our third party service providers.
(a) PH Products. PH reserves all intellectual property rights in and to any PH Products. The purchase of any PH Products does not include a license for you or your Authorized Users to reproduce, modify, adapt, translate, publicly perform, publicly display, transmit, or create any derivative works of the PH Products.
(b) Electronic Copies. Subject to your compliance with this Agreement and your payment of all applicable fees, your purchase of Electronic Materials includes a personal, non-exclusive, non-transferable, non-sublicensable, revocable, right and license to print and distribute the Electronic Materials solely for non-commercial purposes, as part of teaching the PH curriculum; provided that the Electronic Materials and any reproductions thereof are only distributed to your Authorized Users as part of instruction provided by you. Unless a license has been purchased for an entire school or other similar organization, Electronic Materials may not be distributed to other teachers or instructors. Except as expressly set forth above, PH reserves all intellectual property rights in and to the Electronic Materials. The purchase of any Electronic Materials does not include a license to modify, adapt, translate, or create any derivative works of the Electronic Materials.
(c) Interactive Content. Access to Interactive Content may require an account and password on the PH Website or the websites of our third party service providers, and may require you or your Authorized Users to agree to terms and conditions related to the access and use of any such third party’s technology. You agree that you will not, and you will not permit your Authorized Users to, share or otherwise transfer such account credentials or passwords with any third party. You agree that you and such Authorized Users will only use the Interactive Content in a non-commercial, educational manner in connection with teaching and/or learning the applicable Curriculum Materials.
5.4 License Restrictions. Except as expressly permitted herein or by the Commercial Curriculum License (as defined below), the rights granted to you for any Curriculum Materials do not include, and specifically exclude, any rights to: (a) resell or make any commercial use of the Curriculum Materials; (b) make any derivative works, adaptations, translations or other modifications of the Curriculum Materials or any part thereof; or (c) use any form of data mining, robots, or similar data gathering and extraction tools in order to access the Curriculum Materials. You may not embed or frame, or utilize framing techniques to enclose, any Curriculum Materials in or on any other website, application (including mobile applications), or other systems, except as expressly permitted under the Creative Commons License. Any unauthorized use of Curriculum Materials automatically terminates the license granted to you hereunder.
5.5 Non-Commercial Use. The Curriculum Materials are intended for personal, non-commercial use only. Without limiting the foregoing, the Curriculum Materials may not be used, distributed, or otherwise exploited “for commercial advantage or private monetary compensation” unless you first acquire a Commercial License (as defined below) or such use is otherwise agreed in writing by PH. The following are types of uses that PH expressly defines as falling outside the definition of “non-commercial”:
(a) The sale or rental of (i) any part of the Curriculum Materials, (ii) any derivative works based at least in part on the Curriculum Materials, or (iii) any collective work that includes any part of the Curriculum Materials;
(b) Providing products or services for remuneration that contain links to or reference (directly or indirectly) the Curriculum Materials, whether with or without a fee;
(c) The offering of units of study (whether online or offline) that include Curriculum Materials, or any portion of the Curriculum Materials, in exchange for a fee (including, but not limited to, courses offered online or in connection with any wellness training).
(d) Providing training, support, or educational services that use or reference the Curriculum Materials or any other PH resources or services in exchange for a fee;
(e) The sale of advertisements, sponsorships, or promotions placed on the Curriculum Materials, or any part thereof, or the sale of advertisements, sponsorships, or promotions on any website or blog containing any part of the Curriculum Materials, including without limitation any “pop-up advertisements.”
5.6 Commercial License. If you are interested in use of Curriculum Materials other than as permitted pursuant to Section 5.3 or use that is otherwise commercial in nature, you must first submit to PH a prior written request describing your intended purpose and use (“Request for Commercial Use”). Subject to PH’s written approval following of your Request for Commercial Use, and subject to your compliance with all terms and conditions herein and that PH may include with such approval (including payment of all applicable fees), PH will grant you a non-exclusive, non-transferable, non-sublicensable, limited license to use, display and distribute the specific Curriculum Materials identified in the Request for Commercial Use solely for the purposes disclosed in the Request for Commercial Use (“Approved Commercial Purpose”), and only for the duration of the activities necessary therefore (“Commercial Curriculum License”). You may make a reasonable number of printed copies of the approved Curriculum Materials solely to the extent necessary to implement the Approved Commercial Purpose, so long as all such copies comply with the attribution requirements of Section 5.5.
5.7 Attribution. The Creative Commons License and Commercial Curriculum License each requires attribution to PH in association with all use of the Curriculum Materials. Accordingly, if you distribute, publicly perform or display, transmit, publish, or otherwise make available any Curriculum Materials, you must also provide the following notice prominently along with the Curriculum Materials: “All Project Happiness Materials are owned by Project Happiness or its licensees, and are made available for non-commercial purposes at http://www.projecthappiness.org”.
6. FEES; PAYMENTS
6.1 Fees. PH may now, or in the future, charge fees for access to and use of the Website, or certain features thereof, or for certain Curriculum Materials (“Fees”). You agree to pay all Fees and charges specified for such features or materials. All Fees are exclusive of applicable taxes (e.g. sales, use, or value-added tax), unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the Website or Curriculum Materials.
6.2 Payment Methods. PH will charge the Fee, if any, and other additional fees or donations you authorize, to the PayPal account or credit card you designate. You authorize the credit card or PayPal account you designate to pay any amounts described herein and authorize PH, or any other company that acts as a billing agent for PH, to continue to attempt to charge all sums described herein to your credit card or PayPal account until such Fees are paid in full. You represent and warrant that all information you provide to PH in connection with payment processing is accurate and up-to-date. You agree to provide PH updated information regarding your credit card and PayPal account upon PH’s request, and any time the information earlier provided is no longer valid. If payment is not received by PH from your credit card issuer or PayPal, you agree to pay all amounts due upon demand by PH.
6.3 Credit Card Authorization. If PH permits you to use a credit card to pay for any Fees, you will be asked to provide PH with a credit card number from a card issuer that PH accepts. PH may seek pre-authorization of your credit card account prior to a purchase to verify the credit card is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations may reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your credit card issuer if you have additional questions regarding when an authorization amount will be removed from your statement.
6.4 Changes in Price; No Refunds. PH may at any time, upon notice required by applicable law, (a) change the price charged for any Website Content, features or materials, including without limitation for any Curriculum Materials, (b) institute new charges or fees therefore, or (c) charge a fee where a fee was not previously charged. All Fees and amounts paid hereunder are final and nonrefundable.
7. USE AND PROTECTION OF PASSWORD AND ID.
PH may assign a password and account ID to you so you can access and use certain areas of the Website. Each user who uses such assigned password and ID shall be deemed to be authorized by you to access and use the Website on your behalf, and PH shall have no obligation to investigate the authorization or source of any such access or use. YOU ACKNOWLEDGE AND AGREE THAT, AS BETWEEN YOU AND PH, YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THE WEBSITE BY ANYONE USING THE PASSWORD AND ID ASSIGNED TO YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THE WEBSITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING FINANCIAL OBLIGATIONS FOR PURCHASES THROUGH THE WEBSITE) THAT MAY RESULT FROM SUCH ACCESS OR USE. You are solely responsible for protecting the security and confidentiality of the password and ID assigned to you. You shall immediately notify PH of any unauthorized use of the assigned password or ID, or any other breach or threatened breach of the Website’s security of which you are aware. You will be responsible for any activity conducted under your assigned password or ID.
8. SYSTEM REQUIREMENTS.
Use of the certain areas of the Website requires Internet access, audio manager software or other software allowing the downloading and storing of audio and audio-visual files in MP3 or other digital format (the “Software”), and, for certain downloadable content, a compatible player device (the “Device”). PH may, at any time and from time to time, in its sole discretion, modify, revise, or otherwise change the system requirements for the Website and the format of any downloadable content, in whole or in part, without notice or liability to you.
Internet access, use of the Software, or use of a Device may result in fees in addition to any fees incurred on the Website. Software and Devices may require you to obtain updates or upgrades from time to time. Your ability to use the Website may be affected by the performance of the Software, the Device, or your Internet connection. You acknowledge and agree that it is your sole responsibility to comply with the system requirements of your Software and Device, as in effect from time to time, and to maintain, update, and upgrade your Software and Devices, including the payment of all Internet access, Software, and Device fees without recourse to PH.
9. SUBMISSIONS
You may submit and post reviews, comments, photographs, blog entries, and other content; send communications; and submit suggestions, ideas, comments, questions, or other information, so long as none of these materials are illegal, obscene, threatening, defamatory, invasive of privacy, infringing on intellectual property rights, or otherwise injurious to third parties or objectionable and do not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false e-mail address, impersonate anyone, or otherwise mislead as to the origin of any content. We reserve the right (but not the obligation) to remove or edit any such content.
Please do not send us any material that you do not intend to be subject to the User-Generated Content License described in this paragraph. All content described in the immediately preceding paragraph and any and all other information, content or materials that you post or send to us hereinafter collectively is referred to as “User-Generated Content.” If you post or send any User-Generated Content to us, intentionally or unintentionally, we (and such others as we may designate from time to time) shall have the unrestricted rights (but no obligation) to the use thereof for any and all purposes whatsoever, commercial or otherwise, without any further permission from, or any notice or payment to, you or anyone else. We and our designees also shall have the right (but no obligation) to use the name that you submit, as well as any other name by which you are or may be known, in connection with User-Generated Content. Without limiting the generality of the foregoing, you hereby unconditionally grant to us a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable universal license to use, re-use, reproduce, transmit, print, publish, display, exhibit, distribute, re-distribute, copy, host, store, cache, archive, index, categorize, comment on, broadcast, stream, download, edit, alter, modify, adapt, translate, create derivative works based upon and publicly perform User-Generated Content, in whole or in part, by all means and in all media now known or hereafter devised for any and all purposes without further notice to you and with or without attribution (the “User-Generated Content License”). You agree to the User-Generated Content License whether or not your User-Generated Content is used by us.
You represent, warrant and agree that: you own or otherwise control all of the rights to all User-Generated Content that you post or send to us; that all such User-Generated Content is accurate; use of such User-Generated Content does not violate these Terms of Use, our Privacy Policy or the rights of any third party and will not cause injury to anyone; and you will indemnify us and our affiliates and designees from and against all claims arising out of, resulting from or relating to any such User-Generated Content. If your User-Generated Content contains a factual error, you must notify us of the error immediately. We have the right (but no obligation) to monitor, edit or remove any activity or content involving you. We have no responsibility, and assume no liability, for any User-Generated Content posted or sent by you or by anyone else.
You agree that User-Generated Content will not be subject to any expectation of trust or confidence between us, and that no confidential or fiduciary relationship is intended or created between you and us. To the extent that any so-called “moral rights,” “neighboring rights” or similar or analogous rights apply to any User-Generated Content and which are not exclusively owned by us, you agree not to enforce or assign, or permit any third party to enforce or assign, any such rights.
Each time that you access the Website, or post or submit User-Generated Content, you agree that the User-Generated Content License is ratified and confirmed with respect to such User-Generated Content and all User-Generated Content previously posted or submitted by you.
10. CONTENT LINKED TO THE WEBSITE
You should be aware that when you visit the Website, you could be directed to other sites beyond our control including links to or from affiliates and content partners that may use our Marks as part of an affiliate relationship. When you click on a link that directs you away from the Website, the site to which you are directed may not be controlled by us and different terms of use and privacy policies may apply which you should carefully read and evaluate. You acknowledge that we are not responsible for examining or evaluating, and that we do not warrant the offerings of, any such third party or the content of their sites. We do not assume any responsibility or liability for the actions, products, or content of any third party or any third party site. We reserve the right to disable links from or to third-party sites, although we are under no obligation to do so.
11. DISCLAIMER OF WARRANTIES
THE CONTENT ON THE WEBSITE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ANY CONTENT (INCLUDING, WITHOUT LIMITATION, USER-GENERATED CONTENT) WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS AND YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF ANY OF YOUR EQUIPMENT OR SOFTWARE. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING USE, OR THE RESULTS OF USE, OF ANY CONTENT, PRODUCT OR SERVICE CONTAINED ON OR OFFERED, MADE AVAILABLE THROUGH, OR OTHERWISE RELATED IN ANY WAY TO THE WEBSITE INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SITE OR SERVICE LINKED TO FROM THE WEBSITE (AND SPECIFICALLY NO REPRESENTATION OR WARRANTY OF CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY OR SAFETY).
WE EXPLICITLY DISCLAIM ANY RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS OR AVAILABILITY OF INFORMATION, CONTENT AND MATERIALS FOUND ON SITES THAT LINK TO OR FROM THE WEBSITE. WE CANNOT ENSURE THAT YOU WILL BE SATISFIED WITH ANY PRODUCT OR SERVICE THAT YOU PURCHASE FROM A THIRD PARTY WEBSITE THAT LINKS TO OR FROM THE WEBSITE OR THIRD PARTY INFORMATION, CONTENT OR MATERIALS CONTAINED ON OUR WEBSITE. WE DO NOT ENDORSE ANY OF THE MERCHANDISE, NOR HAVE WE TAKEN ANY STEPS TO CONFIRM THE ACCURACY, COMPLETENESS OR RELIABILITY OF, ANY OF THE INFORMATION, CONTENT OR MATERIALS CONTAINED ON ANY THIRD PARTY WEBSITE. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE SECURITY OF ANY INFORMATION, CONTENT OR MATERIALS (INCLUDING, WITHOUT LIMITATION, CREDIT CARD AND OTHER PERSONAL INFORMATION) YOU MIGHT BE REQUESTED TO GIVE TO ANY THIRD PARTY. YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL CLAIMS AGAINST US WITH RESPECT TO INFORMATION, CONTENT AND MATERIALS CONTAINED ON THE WEBSITE (INCLUDING, WITHOUT LIMITATION, USER-GENERATED CONTENT), ON THIRD PARTY SITES, AND ANY INFORMATION, CONTENT AND MATERIALS YOU PROVIDE TO OR THROUGH ANY SUCH THIRD PARTY SITES (INCLUDING, WITHOUT LIMITATION, CREDIT CARD AND OTHER PERSONAL INFORMATION). WE STRONGLY ENCOURAGE YOU TO MAKE WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY ONLINE OR OFFLINE TRANSACTION WITH ANY THIRD PARTY.
THE WEBSITE AND PRODUCTS/SERVICES CONTAINED THEREON ARE NOT SUBSTITUTES FOR THE ADVICE AND TREATMENT OF A LICENSED HEALTH CARE PROFESSIONAL. NOT ALL PRODUCTS AND SERVICES ARE SUITED FOR EVERYONE. THE CREATORS OF ANY PRODUCTS/SERVICES DO NOT ASSUME, AND SHALL NOT HAVE, ANY LIABILITY TO USERS FOR INJURY OR LOSS IN CONNECTION THEREWITH. WE MAKE NO REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIM ANY AND ALL LIABILITY CONCERNING ANY TREATMENT OR ANY ACTION FOLLOWING THE INFORMATION OFFERED OR PROVIDED WITHIN OR THROUGH THE WEBSITE. IF YOU HAVE SPECIFIC CONCERNS OR A SITUATION IN WHICH YOU REQUIRE PROFESSIONAL OR MEDICAL ADVICE, YOU SHOULD CONSULT WITH AN APPROPRIATELY TRAINED AND QUALIFIED SPECIALIST, SUCH AS A LICENSED PSYCHOLOGIST, PHYSICIAN OR OTHER HEALTH PROFESSIONAL. NEVER DISREGARD THE MEDICAL ADVICE OF A PSYCHOLOGIST, PHYSICIAN OR OTHER HEALTH PROFESSIONAL, OR DELAY IN SEEKING SUCH ADVICE, BECAUSE OF THE INFORMATION OFFERED OR PROVIDED WITHIN OR THROUGH THE WEBSITE.
YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS “WAIVER AND RELEASE” AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY. YOU EXPRESSLY AGREE TO RELEASE AND DISCHARGE ALL INDEMNIFIED PARTIES (AS DEFINED BELOW) FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION AND YOU AGREE TO VOLUNTARILY GIVE UP AND IRREVOCABLY WAIVE AND RELEASE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST ANY INDEMNIFIED PARTY FOR PERSONAL INJURY OR PROPERTY DAMAGE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12. INDEMNIFICATION
You hereby agree to indemnify, defend, and hold us, and our licensors, licensees, successors, distributors, agents, representatives and other authorized users, and each of their respective officers, directors, owners, managers, members, employees, agents, representatives and assigns (collectively, the “Indemnified Parties”), harmless from and against any and all loss, cost, damage, liability and expense (including, without limitation, settlement costs and legal or other fees and expenses) suffered or incurred by any of the Indemnified Parties arising out of, in connection with or related to any breach or alleged breach by you of these Terms of Use. You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of the settlement and disposition of any claim that is subject to indemnification by you.
13. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES (INCLUDING NEGLIGENCE) SHALL PH BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, REVENUE, OR DATA) OF ANY KIND OR NATURE WHATSOEVER THAT ARISE OUT OF OR RESULT FROM: (A) THE USE OF, OR ANY INABILITY TO USE, THE WEBSITE OR ANY CONTENT OR FUNCTIONS THEREOF; OR (B) ANY ACT OR OMISSION, ONLINE OR OFFLINE, OF ANY USER OF THE WEBSITE OR ANYONE ELSE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PH’S TOTAL LIABILITY TO YOU FOR ALL LOSS, COST, DAMAGE, LIABILITY OR EXPENSE (INCLUDING ATTORNEYS FEES AND COSTS) THAT YOU MAY SUFFER OR INCUR, UNDER ANY THEORY OF LIABILITY, IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF THE AMOUNT PAID BY YOU HEREUNDER, IF ANY, FOR THE RIGHT TO ACCESS OR PARTICIPATE IN ANY ACTIVITY RELATED TO THE WEBSITE OR $100.00.
UNDER NO CIRCUMSTANCES SHALL WE OR ANY OF THE INDEMNIFIED PARTIES BE LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING, DIRECTLY OR INDIRECTLY, FROM ANY EVENT OF FORCE MAJEURE OR OTHER CAUSE BEYOND OUR OR THEIR CONTROL INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, WAR, EQUIPMENT AND TECHNICAL FAILURES, ELECTRICAL POWER FAILURES OR FLUCTUATIONS, STRIKES, LABOR DISPUTES, RIOTS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, NATURAL DISASTERS, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES. NEITHER WE NOR ANY OTHER INDEMNIFIED PARTY IS RESPONSIBLE OR LIABLE FOR: (A) ANY INCOMPATIBILITY BETWEEN THE WEBSITE AND ANY SITE, SERVICE, SOFTWARE OR HARDWARE; OR (B) ANY DELAY OR FAILURE YOU MAY EXPERIENCE WITH ANY TRANSMISSION OR TRANSACTION RELATED TO THE WEBSITE.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS HEREIN AND ELSEWHERE IN THESE TERMS OF USE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
APPLICABLE LAW MAY NOT ALLOW CERTAIN OF THE EXCLUSIONS, LIMITATIONS, OR DISCLAIMERS OF LIABILITY SET FORTH IN THESE TERMS OF USE, SO SUCH EXCLUSIONS, LIMITATIONS OR DISCLAIMERS MAY NOT APPLY TO YOU.
14. COPYRIGHT COMPLAINTS
We respect the intellectual property rights of others. If you believe that your work has been copied on the Website in a way that constitutes copyright infringement, please follow our Notice and Procedure for Making Claims of Copyright Infringement.
15. AMENDMENT
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Website, by sending an email to any address you may have used to register for an account, or through other mechanisms. Generally, modifications to the Terms are effective upon publication, provided that if the changed Terms materially modify your rights or obligations, the changes are effective upon the earlier of (a) your using the Website with actual knowledge of the change, or (b) thirty days following publication of the modified Terms, and further provided that disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose. If you do not accept the changed Terms, you may not continue access to and use of the Website, including any Curriculum Materials.
16. TERMINATION
These Terms of Use are effective until terminated by either you or us. You may terminate these Terms of Use prospectively at any time by discontinuing your access to and use of the Website and destroying all materials obtained from the Website and all related documentation and all copies and installations thereof, whether made under these Terms of Use or otherwise. If you terminate these Terms of Use, you shall notify us by sending notice of such termination by certified United States mail, postage pre-paid to:
Project Happiness 20370 Town Center Lane Suite 254, Cupertino CA 95014
We may terminate these Terms of Use (including your access to and use of the Website) without cause and without notice to you, in our sole discretion. Upon termination, you must cease any access to or use of the Website and destroy all materials obtained from the Website and all related documentation and all copies and installations thereof, whether made under these Terms of Use or otherwise. We have adopted and implemented a policy that provides for the termination, in appropriate circumstances, of users who are repeat infringers of copyright. The provisions of these Terms of Use, which by their nature should survive the termination of these Terms of Use, shall survive such termination.
17. DISPUTE RESOLUTION AND ARBITRATION
17.1 Generally. In the interest of resolving disputes between you and PH in the most expedient and cost effective manner, you and PH agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 Exceptions. Despite the provisions of Section 17.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of you or PH to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3 Arbitrator. Any arbitration between you and PH will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting PH.
17.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). PH’s address for Notice is:
Project Happiness
20370 Town Center Lane
Suite 254
Cupertino, CA 95014
The Notice must:
(a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or PH may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or PH must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, PH will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by PH in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
17.5 Fees. If you commence arbitration in accordance with these Terms, PH will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse PH for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
17.6 No Class Actions. YOU AND PH 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 OR REPRESENTATIVE PROCEEDING. Further, unless both you and PH agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.7 Modifications. If PH makes any future change to this arbitration provision (other than a change to PH’s address for Notice), you may reject the change by sending us written notice within thirty (30) days of the change to PH’s address for Notice, in which case your account with PH will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.
17.8 Enforceability. If Section 17.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.
18. GOVERNING LAW
These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then, unless another location is expressly specified in these Terms, you and PH agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating any dispute. We operate our services from our offices in California, and we make no representation that the Content included as a part of our services or on the Website is appropriate or available for use in other locations.
19. ELECTRONIC COMMUNICATIONS
When you visit the Website or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Website. 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.
20. MISCELLANEOUS LEGAL PROVISIONS
We may discontinue the Website, or any part thereof, at any time and for any reason, without notice. We may change the contents, operation, or features of the Website at any time for any reason, without notice. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of these Terms of Use or your use of the Website. Nothing contained in these Terms of Use is in derogation of our right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Website or information provided to or gathered by us with respect to such use. A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Our failure to enforce any provision of these Terms of Use or respond to a breach by you or others shall not constitute a waiver of our right to enforce any other provision of these Terms of Use as to that breach or any other.
If any provision of these Terms of Use is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect, and the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision. These Terms of Use constitute the entire agreement between you and us regarding the Website and supersedes any prior or contemporaneous agreement regarding that subject matter.
Updated May 2015
Notice and Procedure for Making Claims of Copyright Infringement
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the written information specified below. Please note that this procedure is exclusively for notifying us that your copyrighted material has been infringed.
The PH’s Copyright Agent for notice of claims of copyright infringement on the Website can be reached as follows:
Project Happiness 20370 Town Center Lane Suite 254, Cupertino, CA 95014
Updated 2017