TERMS AND CONDITIONS OF USE
Welcome to www.happyteacherpd.com, an online learning infrastructure (and any other products and services that Happy Teacher may provide now or in the future) (the “Services”) created by Happy Teacher Professional Development, a Colorado corporation (“Happy Teacher”) which provides for use by its subscribers online learning or Internet enabled or wireless means by which Happy Teacher, and its linked partners, such as by way of example and not limitation, Schoology, provides content (collectively the “Website”).
PLEASE READ THIS DOCUMENT AND THESE TERMS AND CONDITIONS OF USE CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS.
By accessing the Website and clicking “agree” you, the END-user, (sometimes also referred to as “You” or “your” OR “SUBSCRIBER”) accept the offer made by this Agreement, agree thESE TERMS AND CONDITIONS OF USE shall be a legal contract and that you intend to be legally bound to a contract between the Subscriber and Happy Teacher for the use of both the Website and the Happy Teacher ServiceS (this “agreement”). YOU ALSO AGREE TO THE TERMS OF THE HAPPY TEACHER PRIVACY POLICY. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU SHOULD NOT ACCESS OR USE THE WEBSITE OR CLICK “AGREE.”
PLEASE NOTE THAT THESE TERMS INCLUDE A BINDING ARBITRATION AGREEMENT INCLUDING A CLASS ACTION WAIVER. BY AGREEING TO BINDING ARBITRATION, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE.
If there are additional posted guidelines or policies applicable to the Services or the Website (including the Privacy Policy) You are required to follow those as well. Your privacy is important to Happy Teacher. Please read the Happy Teacher Privacy Policy which is incorporated into these Terms (and which are part of our contract with You) carefully for information relating to Happy Teacher's collection, use, and disclosure of your personal information, if any.
- Obligations of the Subscriber
Subscriber covenants and agrees it shall:
1.1 Promise to read this Agreement carefully, to consult the Website regularly for up-to-date information about the Happy Teacher Services and any changes or amendments to this Agreement, and retain it for future reference. Understand and agree that the terms and conditions of this Agreement govern all aspects of its relationship with Happy Teacher, including all transactions between Happy Teacher and Subscriber and all products and services now or in the future offered through Happy Teacher, beginning on the earlier of the date when Subscriber begins the use of the Happy Teacher Services or accessed the Website. Happy Teacher has the right to amend this Agreement at any time and without notice to you. Such amendments shall be effective immediately upon posting. You agree to review the Website periodically to be aware of any such amendments. Your continued use of the Website after such amendments have been made shall constitute acceptance of the amendments.
1.2 If Subscriber determines, at any time, that it is unwilling to be bound by all of the terms and conditions of this Agreement, it will not use any of the Happy Teacher Services nor continue to access the Website.
1.3 CAREFULLY READ, UNDERSTAND AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE IT CLICKS "AGREE" OR OTHER SIMILARLY WORDED BUTTON. SUBSCRIBER UNDERSTANDS THAT CLICKING "AGREE" IS THE LEGAL EQUIVALENT OF MANUALLY SIGNING THIS AGREEMENT AND SUBSCRIBER WILL BE LEGALLY BOUND BY ALL OF ITS TERMS AND CONDITIONS. SUBSCRIBER UNDERSTANDS THIS AGREEMENT MAY BE AMENDED FROM TIME TO TIME BY HAPPY TEACHER, WITH REVISED TERMS POSTED ON THE WEBSITE. SUBSCRIBER AGREES TO CHECK FOR UPDATES TO THIS AGREEMENT. SUBSCRIBER UNDERSTANDS THAT BY CONTINUING TO USE THE HAPPY TEACHER SERVICES AND/OR ACCESSING THE WEBSITE WITHOUT OBJECTING TO ANY REVISED TERMS OF THIS AGREEMENT, SUBSCRIBER IS ACCEPTING THE TERMS OF THE REVISED AGREEMENT AND IT WILL BE LEGALLY BOUND BY ALL ITS TERMS AND CONDITIONS.
1.4 Hold harmless and indemnify Happy Teacher and its directors, officers, shareholders, employees, agents, representatives, successors and assigns (hereinafter individually referred to as a "Happy Teacher Indemnified Party"), from and against all losses, liabilities, damages, demands, claims, suits, actions, causes of action, judgments, assessments, costs and expenses, including, without limitation, interest, penalties, reasonable attorneys' fees, any and all expenses incurred in investigating, preparing or defending against any litigation or any type proceeding including but not limited to arbitration commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation (collectively, "Damages"), asserted against, resulting to, imposed upon, or incurred or suffered by any Happy Teacher Indemnified Party, directly or indirectly, as a result of, arising from, or relating directly or indirectly to (a) any breach or non-fulfillment of any of the covenants or agreements made by Subscriber in this Agreement, (b) Subscriber’s use in any way of the Happy Teacher Services or accessing the Website, (c) any violation whatsoever by Subscriber of any law, rule, regulation or rights of others in connection with or related in any way with the use of the Website, the operation or conduct of its business, if any, (d) the violation of any property or privacy right. These obligations shall survive the termination or expiration of this Agreement and/or Subscriber’s use of the Happy Teacher Services or Website.
1.5 Be responsible for maintaining the confidentiality of passwords associated with any account Subscriber uses to access the Happy Teacher Services and the Website. Accordingly, Subscriber agrees it will be solely responsible in all ways and manners to Happy Teacher for all activities that occur under its account. If Subscriber becomes aware of any unauthorized use of its password or of its account, it shall notify Happy Teacher immediately. Happy Teacher will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will we be liable, in any way, for any of your acts or omissions or those of any third party, including damages of any kind incurred as a result of such acts or omissions. You agree the information you provide to Happy Teacher, whether at registration or at any other time, will be true, accurate, current, and complete. You also agree you will ensure this information is kept accurate and up-to-date at all times.
1.6 Use the Happy Teacher portal and all Happy Teacher Services only for the purposes and in the manner expressly permitted by this Agreement and in accordance with all applicable laws and regulations. Subscriber agrees to use the Happy Teacher portal, the Happy Teacher Services and any software of Happy Teacher only and solely for purposes of using the Happy Teacher Services in accordance with this Agreement. Subscriber may not, and will not encourage, assist or authorize any other person to copy, modify, reverse engineer, decompile or disassemble, circumvent or bypass any technological protection measures or otherwise tamper with the Happy Teacher software, or other aspect of the Happy Teacher Services or Website, whether in whole or in part, or create any derivative works from or of the Happy Teacher Services.
1.7 Not to use Happy Teacher Services or the Website for any unauthorized or illegal purpose. You will be responsible for ensuring that you do not violate any laws in your or any applicable jurisdiction. You agree not to upload or transmit viruses, worms, malware, or any other code that will damage or impair the Happy Teacher Service or the Website. You accept sole responsibility for all your activities using the Happy Teacher Services and the Website, including any content you transmit, submit, post or share on Website and/or in conjunction with the Happy Teacher Services.
1.8 Not upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation.
1.9 Not Spam or engage in unethical marketing, advertising, any other practice connected in any way to spam including, sending content or emails which do not comply with the CAN-SPAM Act of 2003.
1.10 Not violate any terms, conditions or agreements in this Agreement.
1.11 Not reproduce, duplicate, copy, sell, resell, or exploit in any way any portion of the Happy Teacher Services or any portion of the Website without our express written permission, which may be in the form of a separate written agreement with Happy Teacher. Happy Teacher reserves the right to investigate any of your activity involving the use of Happy Teacher Services or the Website, and to cancel your account at any time and for any reason.
1.12 The Services assist Subscribers to provide their students with educational services as part of a school’s curriculum and evaluate educational achievement and the progress of Your students. The Services and Website are provided to You for educational purposes as part of the school curriculum.
1.13 The fee for the online courses must be paid in full at the time of registration. Registration is not complete until Happy Teacher has received payment in full. You agree to provide accurate and complete information.
- INTELLECTUAL PROPERTY
2.1 Unless otherwise indicated, the Website, all content and other materials including, without limitation, Happy Teacher’s logo, and all designs, text, graphics, pictures, information, data, documentation, technology, online courses and classes, online course materials, lectures, software, all informational text, content, design of and "look and feel," layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted, as well as all derivative works thereof (collectively “Materials”) are the proprietary property of Happy Teacher and are protected by U.S. and international copyright and other laws. You are granted a limited, revocable, non-exclusive license, without the right to sublicense, to access and use the Materials and the Services, for your educational, non-commercial and personal use only. Such license is subject to this Agreement, and any other applicable terms and conditions, and without limiting any of the foregoing, You expressly agree not to: (a) distribute, publicly perform or publicly display the Materials or the Services; (b) download, index or in any non-transitory manner store or cache any portion of the Materials or the Services or any information contained therein, except as expressly permitted thereon; (c) remove, deface, obscure, or alter any copyright, trademark or other proprietary rights notices affixed to or provided in connection with the Materials or the Services; (d) create or attempt to create a substitute or similar service or product through the use of or access to the Materials or the Services or any proprietary information related thereto; or (e) use the Materials or the Services other than for its intended purpose.
Any use or attempted use of the Materials or the Services other than as specifically authorized herein, without the express prior written permission of Happy Teacher is strictly prohibited and will, among other things, immediately terminate the license granted herein. Such unauthorized use or attempted use may also violate applicable laws, including without limitation, copyright and trademark laws and applicable communications regulations and statutes. Except as explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to any intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time, in Happy Teacher’s sole discretion.
Unless otherwise specified in this Agreement, all information and screens and videos and audios appearing on or in the Services, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, is the sole property of Happy Teacher. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
2.2 Happy Teacher gives you permission to use the Materials to the extent, and only to the extent, necessary to access and use the Happy Teacher Services in accordance with this Agreement which is for Your personal, non-commercial informational purposes. This permission does not permit you to store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Materials, or otherwise distribute in any way the Materials other than as specifically permitted in this Agreement. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Happy Teacher Services or Materials, create derivative works based on or in any manner commercially exploit the Happy Teacher Services or Materials, in whole or in part, other than as expressly permitted in this Agreement. Any use of the Happy Teacher Services or Materials for any purpose other than as specifically permitted herein or without our prior consent is expressly prohibited.
2.3 All trademarks, service marks, logos, slogans, and taglines (individually and collectively, “Mark” or “Marks”) are the property of Happy Teacher or their respective owners. Except as otherwise specifically stated herein, no license or right to use any Mark is granted without the express written permission of Happy Teacher.
- YOUR ACCOUNT AND PROFILE
3.1 In order to use this Website, you must set up an account. Happy Teacher will only use your information to supply the Happy Teacher Services in accordance with its Privacy Policy. You acknowledge and agree any information supplied to Happy Teacher, including without limitation payment information may be used by Happy Teacher to supply the Happy Teacher Services. You are solely responsible for the security of your account and must protect your password. You are fully responsible for all activities that occur under your account regardless of whether the activities are undertaken by YOU or any third party and you agree not to permit anyone else to use your account. You will contact us immediately if you believe an unauthorized third party may be using Your account or if Your account information is lost or stolen. For security purposes, Happy Teacher recommends that You change your password often, with an interval of no more than 30 days between password changes. Under no circumstances should you respond to a request for your password, particularly a request from an individual claiming to be an employee of Happy Teacher. Happy Teacher employees will never ask for your password. You must notify Happy Teacher if you receive such a request.
- WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
4.1 HAPPY TEACHER DOES NOT PROMISE THE WEBSITE OR ANY CONTENT, THE HAPPY TEACHER SERVICES OR FEATURES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE WEBSITE OR HAPPY TEACHER SERVICES WILL PROVIDE SPECIFIC RESULTS. SUBSCRIBER AGREES THAT ITS USE OF THE WEBSITE AND THE HAPPY TEACHER SERVICES IS AT ITS SOLE RISK AND IT ASSUMES THAT RISK. BECAUSE OF THE INHERENT HAZARDS, CORRUPTION, AND UNCERTAINTIES OF ELECTRONIC DISTRIBUTION, THERE MAY BE INTERRUPTIONS, DELAYS, OMISSIONS, INACCURACIES, OR OTHER PROBLEMS WITH THE WEBSITE AND ITS APPLICATIONS. IF SUBSCRIBER RELIES ON THE WEBSITE OR ANY MATERIAL AVAILABLE THROUGH IT AND THE HAPPY TEACHER SERVICES IT DOES SO AT ITS OWN RISK. SUBSCRIBER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM ANY MATERIAL AND/OR DATA DOWNLOADED FROM OR OTHERWISE PROVIDED THROUGH THE WEBSITE OR VIA THE SERVICES. THE WEBSITE AND THE HAPPY TEACHER SERVICES ARE PROVIDED "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE." HAPPY TEACHER AND ITS AGENTS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, USEFULNESS, TIMELINESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY RESULT OF THE CONTENT OR THE INFORMATION AVAILABLE THROUGH THE WEBSITE AND THE HAPPY TEACHER SERVICES, NOR DOES HAPPY TEACHER GUARANTEE THAT THE WEBSITE AND THE HAPPY TEACHER SERVICES WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR THAT THE WEBSITE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HAPPY TEACHER OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
4.2 Except as otherwise expressly set forth in this Agreement or prohibited by law, Happy Teacher (and its agents, employees, officers, shareholders, directors and representatives), shall not under any circumstances, including but not limited to negligence or breach of contract, be liable to Subscriber or any third party for any loss, damage, injury, claim, liability or costs whatsoever including special, punitive, exemplary, consequential, indirect, incidental or direct damages whatsoever (including, but not limited to damages for loss of business, goodwill, use, cost of procurement or substitute services, any intangible loss, loss of profits, opportunity or investment, or the like) (all of the foregoing "Damages"), caused in whole or in part for the failure to meet any obligation or duty, including good faith or reasonable care, or negligence, regardless of the form of action, whether based on this Agreement, breach of contract, breach of warranty, strict liability, statute or tort (including negligence) or otherwise, even if Happy Teacher (its agent, officers, shareholders, directors, agents, employees or representatives) has been advised of the possibility of such Damages and even if a remedy set forth herein is found to have failed of its essential purpose. By way of example and not limitation, this limitation includes, but is not limited to, all Damages caused in whole or in part by Happy Teacher due to, caused by or related to (a) the performance of or use in any way of any of the Happy Teacher Services, (b) the use of the Website or (c) the transmission of any viruses which may infect the user’s equipment, failure of mechanical or electronic equipment or communication lines or other interconnection problems.
4.3 The above limitations and exclusions apply to the fullest extent permitted by applicable law. To the maximum extent permitted by law, Subscriber and Happy Teacher expressly intend and agree if there is liability and to the extent the foregoing limitation, or any other limitation in this Agreement, of liability is prohibited or fails of its essential purpose that the maximum amount and the entire aggregate liability of Happy Teacher its the agents, employees, officers, shareholders, directors and representatives to Subscriber and all third parties shall be cumulatively limited to the lesser of the fee actually paid by Subscriber pursuant to this Agreement, or $500.00 and this liability shall be exclusive. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitations and exclusions may not apply to You. In such cases, Happy Teacher’s liability will be limited to the fullest extent permitted by applicable law.
4.4 THE REMEDIES SET FORTH IN THIS ARTICLE OR TERMINATION OF THIS AGREEMENT ARE SUBSCRIBER’S EXCLUSIVE REMEDIES FOR CLAIMS OR DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, THE USE OF THE WEBSITE OR HAPPY TEACHER SERVICES OR FOR ANY INFORMATION OR SERVICES PROVIDED HEREUNDER. EXCEPT FOR AND ONLY TO THE EXTENT OF HAPPY TEACHER’S FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, SUBSCRIBER AGREES THAT HAPPY TEACHER’S LIABILITY FOR ANY OTHER CLAIM OF ANY KIND RELATING TO THIS AGREEMENT, THE WEBSITE OR THE HAPPY TEACHER SERVICES SHALL BE GOVERNED BY THIS AND NEVER EXCEED THE AMOUNT SET FORTH ABOVE.
4.5 Except as may be prohibited by pertinent law, no action arising out of this Agreement or otherwise for any reason, regardless of form or type of claim may be brought by Subscriber (and Happy Teacher’s liability shall terminate) after the earlier of one (1) year after the date of the last delivery of Happy Teacher Services to Subscriber or one (1) year after the cause of action arose and if not filed within such time such cause of action shall be forever barred.
4.6 YOU MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE OR IN OTHER JURISDICTIONS. BECAUSE SOME STATES OR JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, OR LIMITATIONS ON OR EXCLUSIONS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU DEPENDING ON YOUR STATE OF RESIDENCE.
4.7 The description of courses is intended to indicate only the general nature of the course and does not guarantee content. Happy Teacher reserves the right to amend the course and alter details at its discretion. Happy Teacher is not responsible if You fail to meet the online course requirements and You should ensure you allocate sufficient time to allow you to successfully complete the online courses.
4.7 The provisions of this Article reflect an expressly agreed-upon and accepted allocation of risk and shall apply equally to each of the Happy Teacher Services. The fee charged by Happy Teacher for the Happy Teacher Services is set to reflect this allocation of risk.
- FORCE MAJEURE
5.1 Happy Teacher shall not be liable, under any circumstances, for any delay, disruption or failure of the Happy Teacher Service directly or indirectly resulting from any act, event or cause whatsoever beyond the reasonable control of Happy Teacher, including but limited to Internet outage or interruption of service, a communication outage, failure of a provider of the services to Happy Teacher to perform, a pandemic or any other act of god.
- General Provisions.
6.1 Payment for Services is Not Refundable. Once a class is purchased the Happy Teacher Services are non-returnable and non-refundable. By making a purchase with Happy Teacher, you are confirming that you have read and understand Happy Teacher’s non-returnable and non-refund policy.
6.2 No Implied or Express Warranty or Endorsement of other Services or Products. Happy Teacher does not in any way, expressly or impliedly, endorse, recommend, guarantee, warrant or favor any of the products or services represented or advertised on the Website. Commercial products or services are presented or advertised in the context in which education is delivered. Happy Teacher is not responsible for the product’s functionality represented. Happy Teacher is not responsible to the content accuracy and currency of the web links provided in Happy Teacher Services or on the Website. You are responsible for evaluating whether you want to access or use any of the products or services and you assume all risk of use. To the fullest extent permitted by law, you agree that Happy Teacher (a) shall not under any circumstances be responsible or liable, directly or indirectly, and Happy Teacher specifically disclaims all liability for any loss or damage of any sort incurred or caused by or as a result of Your use or reliance of any third party site, content and/or third party service or product, whether or not you were linked to, directed or indirectly, a third party site or third party service or product through the Happy Teacher Website, and (b) any orders placed by You on, and any third party products or services specifications and products available are subject to confirmation by, and the terms and conditions for business of, the relevant third party advertiser or merchant. You acknowledge that third party sites and third party services or products may be subject to the applicable third party provider’s terms of service or warranty or other terms and conditions, and you are solely responsible for reviewing and complying with any such terms of service or agreements. In no event shall any reference on the Happy Teacher Website to any third party, third party website or third party product or service be construed as an approval or endorsement by Happy Teacher of that third party, third party website or of any product or service provided by a third party.
6.3 Variations in Common Practices. Educational information provided in the Happy Teacher Services and on the Website often follows common practices in the United States at the time of publication. Such practices can vary greatly over time periods and across countries, cultures, and geographic regions and among groups and organizations, It is vital, therefore, to be knowledgeable and educated about local practices, the lack of uniformity in local practices, and how practices may change over time. As such they may be different from those in your local area and are not necessarily intended to suggest whether they should be used by You. No Subscriber should ever assume or feel assured that any such examples or information presented or made available in the Happy Teacher Services will be the same, indicative of or even similar to your own personal experience .
6.4 Severability. In case any term or provision of this Agreement shall be invalid, illegal, or unenforceable, in whole or in part, the portion that is determined to be invalid shall be severed, and the validity of any of the other terms or provisions of this Agreement shall not in any way be affected thereby. Nothing contained in this Agreement shall be construed as requiring the commission of any act contrary to law. In the event there is any conflict between any provision of this Agreement and any statute, law, ordinance, or regulation contrary to which the parties hereto have no legal right to contract, the latter shall prevail. In event of conflict, the provisions of this Agreement thus affected shall be curtailed and limited only to the extent necessary to cause this Agreement to conform to said requirement of law. Happy Teacher and Subscriber agree that, if the scope or enforceability of any section hereof, or any parts thereof, are in any way disputed at any time, a court may modify and enforce the particular covenant to the extent that it believes the covenant is reasonable and enforceable under all of the circumstances existing at the time.
6.5 Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws provision. Subscriber and Happy Teacher irrevocably submit to the exclusive and personal jurisdiction of the State of Colorado (state or federal), with court venue in Broomfield County (and arbitration venue in Denver County), over any Dispute (as defined hereinafter). Subscriber and Happy Teacher irrevocably waive, to the fullest extent permitted by applicable law, any objection that they may have to the venue of any such dispute brought in the county set forth herein in Colorado, any defense of inconvenient forum for the maintenance of such dispute or any defense of lack of personal jurisdiction.
6.6 Integration. This Agreement constitutes the exclusive and entire agreement of the parties relating to the subject matter hereof, and there are no written or oral terms or representations made by either party other than those contained herein. This Agreement supersedes and replaces any and all agreements of any kind, whether written or oral, express or implied with respect to the subject matter, all of which shall be terminated upon the acceptance of this Agreement.
6.7 Assignment. This Agreement and/or the Happy Teacher Services may not be assigned by the Subscriber. Happy Teacher may freely assign its rights and obligations under this Agreement with or without notice to Subscriber.
6.8 Subscriber’s Agreement to be Bound. Subscriber’s use of the Website and/or the Happy Teacher Services includes the ability to enter into agreements and/or to make transactions electronically. SUBSCRIBER ACKNOWLEDGES THAT ITS ELECTRONIC SUBMISSIONS CONSTITUTES ITS AGREEMENT AND CLEAR INTENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS. SUBSCRIBER’S AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS SUBSCRIBER ENTERS INTO WITH HAPPY TEACHER, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
6.9 Survival. No termination or expiration of this Agreement affects or impairs any obligations, duties, indemnities, and liabilities of either Party that, by their nature, continue beyond termination including but not limited to Section 1.4, 1.11, 2.1, 2.2, 2.3, Article 4, Sections 6.2, 6.4, 6.5, 6.6, 6.9, 6.10, and Article 7 or the rights of Happy Teacher relating to any unpaid obligations of Subscriber.
6.10 You may choose to or we may invite you to submit comments, testimonials, feedback, suggestions, ideas, and other submissions about the Services, including without limitation about how to improve the Services or our products ("Ideas"). By submitting any Idea, You agree Your disclosure is gratuitous, unsolicited and without restriction and will not place Happy Teacher under any fiduciary or other obligation, that we are free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to You. You acknowledge, by acceptance of your submission, Happy Teacher does not waive any rights to use similar or related ideas previously known to Happy Teacher, or developed by its employees, or obtained from sources other than You. Such disclosure, submission or offer of any Ideas shall, and does, constitute a perpetual, royalty-free, worldwide, irrevocable license to us of all right, title and interest in all patent, copyright, trademark, and all other intellectual property and other rights whatsoever in and to the Ideas and a waiver of any claim based on moral rights, unfair competition, breach of implied contract, breach of confidentiality, and any other legal theory. You should not submit any Ideas to us if You do not wish to license such rights to us. We are and will be under no obligation: (a) to maintain any Ideas in confidence; (b) to pay to you or any third party any compensation for any Ideas; or (c) to respond to any Ideas. You are and shall remain solely responsible for the content of any Ideas you make.
- Mandatory Arbitration
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES THROUGH MANDATORY ARBITRATION WITH A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION OR REPRESENTATIVE PROCEEDING. THE ENFORCEABIITY OF THIS AGREEMENT IS GOVERNED BOTH PROCEDURALLY AND SUBSTANTIVELY BY FEDERAL AND COLORADO LAW, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7.1 Arbitration Terms. Subscriber agrees, except as otherwise set forth herein, that all disputes or claims arising out of or in any way relating to this Agreement or is in any way connected to the interpretation, application or enforcement of this Agreement, the relationship between Happy Teacher and Subscriber, the use of the Services or the Website or any matter whatsoever between Happy Teacher (and its employees, officers, directors, shareholders, successors, attorneys and other agents) and Subscriber (and its successors, representatives, and heirs) based on any legal theory will be resolved by binding arbitration (a “Dispute”).
7.2 Arbitration Procedures. Before commencing arbitration Subscriber must first present any Dispute to Happy Teacher in writing to allow Happy Teacher the opportunity to resolve the Dispute. If the Dispute is not resolved within 60 days after Happy Teacher receives notice of the Dispute, Subscriber may request arbitration by serving a completed Demand for Arbitration (the “Demand”). The Demand shall and must state plainly and clearly (a) a detailed description of the nature of and the facts underlying the Dispute (b) the legal and/or contractual basis of the Dispute including but not limited to the specific authority from which the Dispute arises; (c) set forth all damages and their causal relationship to the basis to the Dispute, and (d) the specific relief, and/or proposed solution or remedy sought.
7.3 The arbitration shall be conducted by the Judicial Arbiter Group in Denver, CO (“JAG”) which is where the Demand shall be delivered by either of the parties to initiate the arbitration. There shall be one JAG arbitrator who will be a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes either as a judge or an arbitrator. The arbitrator shall be chosen by written mutual agreement of the parties. If, after 7 days, Subscriber and Happy Teacher are unable to agree upon an arbitrator, JAG will appoint the arbitrator. The arbitrator shall apply the substantive law of the state of Colorado, without giving effect to its conflict of law provisions. All face-to-face proceedings shall take place in Denver in the State of Colorado at the offices of JAG and in accordance with the procedures set forth by JAG.
7.4 Award. Arbitration is final, non-appealable, and binding. In making any award, the arbitrator shall be restricted by the “Limitation of Liability” provision in this Agreement and shall not have jurisdiction to make an award to any party to the arbitration contrary to the “Limitation of Liability” provision in Article 4 and shall adhere to the time limitation in Section 4.5. Subscriber expressly agrees that the rulings of the arbitrator, including any award, shall be binding, non-reviewable and non-appealable and it may be entered in any court of competent jurisdiction.
7.5 Confidentiality. Any arbitration shall be strictly confidential, and neither Subscriber nor Happy Teacher may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Any Party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief. Any violation of this confidentiality provision shall subject the violating party to damages.
7.6 Costs of Arbitration. The party requesting arbitration must first pay the applicable JAG retainer or fee, but the fee of JAG/arbitrator shall be shared equally. Each party shall pay its own expenses of the arbitration, including the expense of its own counsel, witnesses, and presentation of evidence at the arbitration. If any party files a judicial or administrative action asserting a claim or Dispute that is subject to arbitration and another party successfully stays such action or compels arbitration, the party filing that action must pay the other party’s costs and expenses incurred in seeking such stay or compelling arbitration, including reasonable attorneys’ fees.
7.7 Waiver of Jury and Class Action and Other Representative Proceeding. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE PARTIES EXPRESSLY AGREE THAT THERE SHALL BE NO JURY OR COURT TRIAL OR RIGHT TO A JURY OR COURT TRIAL, OR RIGHT TO ANY OTHER PROCEEDING TO RESOLVE ANY DISPUTE IN ANY COURT. THE PARTIES ALSO EXPRESSLY AGREE THAT ANY DISPUTE IS PERSONAL TO THEM, AND ANY SUCH DISPUTE SHALL ONLY BE RESOLVED BY AN INDIVIDUAL ARBITRATION. BOTH PARTIES AGREE THERE CAN BE NO CLASS ARBITRATION OR ARBITRATION WHERE A PERSON BRINGS A DISPUTE AS A REPRESENTATIVE OF ANY OTHER PERSON OR PERSONS. BOTH PARTIES AGREE THAT A DISPUTE CANNOT UNDER ANY CIRCUMSTANCES BE BROUGHT AS A CLASS OR REPRESENTATIVE ACTION OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY OTHER PERSON OR PERSONS.
7.8 Matters excluded from mandatory arbitration. Excluded from a Dispute and not within the scope of mandatory binding arbitration (and which may be litigated in court) are claims to restrain or seek specific performance of Sections 8.5. Happy Teacher and Subscriber acknowledge and agree that Happy Teacher’s remedies at law for any violation or attempted violation of any of Subscriber’s obligations under Sections 1.7, 1.11, 2.1, 2.2 and 7.5 would be inadequate, and agree that in the event of any such violation or attempted violation, Happy Teacher shall each be entitled to file an action in court and seek and obtain a temporary restraining order, temporary and permanent injunctions, and other equitable relief, without the necessity of posting any bond or proving any actual damage, in addition to all other rights, damages, and remedies that may be available to Happy Teacher from time to time including the right to apply Section 1.4 and receive attorneys’ fees and costs for any aforesaid violation.
- Term and Termination.
8.1 This Agreement shall remain in full force and effect while You use the Services unless your account is terminated as provided in this Agreement, in which case you no longer have the right to use the Services.
8.2 Happy Teacher, in its sole discretion, for any or no reason, and without penalty, may suspend or terminate any account (or any part thereof) You may have with Happy Teacher or your use of the Services and remove and discard all or any part of your account and user profile at any time. Happy Teacher may also in its sole discretion and at any time discontinue providing access to the Services, or any part thereof, with or without notice. You agree any termination of Your access to the Services or any account you may have, or portion thereof, may be affected without prior notice, and You agree Happy Teacher will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Happy Teacher may have at law or in equity. As discussed herein, Happy Teacher does not permit copyright, trademarks, or other intellectual property infringing activities on the Services, and will terminate access to the Services.
