PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE

 

These terms of service (“Terms”) are a legal agreement between you (“you”) and Simply Whispers, Inc. (“us”, “we” or “our”) in respect of your access to and use of our website, located at www.simplywhispers.com.

By accessing or using our website, you agree to be bound by these Terms, including the mandatory arbitration provision and class action waiver in section 9 for certain types of disputes. If you do not agree to these Terms, we do not grant you permission to access and use the website.

 

You must be at least 16 years of age to use the website. If you use the website on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.

 

Our website is directed to people residing in the United States, though it may be available in Canada, as well. We do not represent that the content available on or through our website is appropriate for use or available in other locations.

If you purchase products or services from our website, our Terms of Sale will apply to the sale.

 

1. YOUR ACCOUNT

 

You may need to register for an account to access certain portions or features of the website. If you register for an account, you must provide accurate account information and promptly update this information if it changes. If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party. You are responsible for all activities that occur through use of your user identification code, even if another person was using your account at the relevant time.

We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms.

If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us at custserv@simplywhispers.com.

 

2. LIMITED LICENSE; USE RESTRICTIONS

 

The website, including the text, graphics, images, photographs, videos, illustrations and other content contained herein, are owned by us or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the website are reserved by us or our licensors. Subject to your compliance with these Terms, we hereby grant you a limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use our website, and, for your own personal, non-commercial use. The content on the website shall not be modified, distributed, framed, republished, scraped or sold in any form or by any means, in whole or in part, without our prior written permission. We reserve all other rights which are not granted in these Terms. We may revoke the license granted in these Terms at any time without notice and with or without cause.

You must not use the website: (a) in any unlawful manner, for any unlawful purpose or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses or harmful data, into the website or any operating system used by the website; (b) in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; (c) to collect or harvest any information or data from the website or our systems or attempt to decipher any transmissions to or from the servers running the website; (d) to send, knowingly receive, upload, download, use or re-use any material which does not comply with these Terms; or (e) to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam). You may not carry out any data mining or similar data gathering or extraction methods on the website or reverse engineer any aspect of the website or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our website.

Our logos, our product or service names, our slogans and the look and feel of the website are trademarks of Simply Whispers, Inc. and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the website are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.

 

3. USER CONTENT

The website may allow you and other users to create, post, store and share content, including text, photos, and other materials (collectively, “User Content”). Except for the license you grant below, you retain all of your ownership rights in and to any User Content you provide.

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

You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.

You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that:

• Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
• Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
• May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
• Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
• Engages in any harassing, threatening, intimidating, predatory, or stalking conduct;
• Impersonates, or misrepresents your affiliation with, any person or entity;
• Contains any unsolicited promotions, political campaigning, advertising or solicitations;
• Contains any private or personal information of a third party without such third party’s consent; or
• In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our website, products or services, or may expose us or others to any harm or liability of any type.

 

Enforcement of this section 3 is solely at our discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.  In addition, this section 3 does not create any private right of action on the part of any third party or any reasonable expectation that the website will not contain any content that is prohibited by such rules.

 

4. PRIVACY

 

For details regarding how we collect, use, share and otherwise process personal information, see our Privacy Policy.

 

5. FEEDBACK

 

You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about us or the website (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in our sole discretion. You understand that we may treat Feedback as non-confidential.

 

6. THIRD PARTY SITES AND SERVICES

 

The website may contain links to third party websites and services (“Third Party Sites and Services”). The links to these Third Party Sites and Services are provided for your convenience only. You acknowledge that we have no control over the Third Party Sites and Services (including the failure of any links to them) and are not responsible for their contents and/or availability.

We do not endorse the content or other material contained in the Third Party Sites and Services, make no representations or warranties regarding any content available on Third Party Sites and Services, and have no association with their operators. Your dealings, correspondence or interaction with and use of any Third Party Sites and Services are solely between you and the provider of the Third Party Sites and Services and will be governed by their terms and conditions and privacy policies (if any) (“Third Party Terms”). It is your responsibility to read the Third Party Terms. If you do not understand or agree to be bound by any Third Party Terms, you should not use any Third Party Sites and Services.

 

7. DISCLAIMER AND LIMITATION OF LIABILITY

 

To the maximum extent permitted by law and subject to the sections below, Simply Whispers, Inc., our affiliates, subsidiaries, parent entities, and each of our directors, officers, agents, contractors, partners and employees (individually and collectively, the “Simply Whispers, Inc. Parties”) will not be liable to you under any theory of liability whether such losses arise in contract, tort (including negligence), warranty or otherwise for any indirect, consequential, incidental, or special damages or lost profits, even if the Simply Whispers, Inc. Parties have been advised of the possibility of such damages. The total liability of the Simply Whispers, Inc. Parties for any claim arising out of or relating to these Terms or the website, regardless of the form of the action, shall not exceed $100.

Please note that we only provide our website for domestic and private use. You agree not to use our site for any commercial or business purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

Nothing in these Terms will limit or exclude our liability for: (a) death or personal injury resulting from our negligence; (b) fraud or intentional misconduct of Simply Whispers, Inc. Parties; or (c) any other liability that cannot be excluded or limited by applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.  

 

Your use of the website is at your sole risk. Except as otherwise provided in a writing by us, we provide the website on an “as is” and “as available” basis. We make no guarantee and do not represent or warrant that the website will be accurate, complete, reliable, current, uninterrupted, error free, or free from viruses or other harmful components. While we attempt to make your use of the website safe, we cannot and do not represent or warrant that the website or our servers are free of computer viruses and/or other malicious programs or harmful components and we accept no liability for them. You assume the entire risk as to the quality and performance of the website. To the extent permitted by law, we exclude all conditions, warranties, representations or other terms, which may apply to the website, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

 

8. INDEMNITY

 

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless the Simply Whispers, Inc. Parties from and against any losses, liabilities, claims, demands, damages, expenses or costs (collectively, “Claims”) arising out of or related to (a) your access to or use of the website; (b) any Feedback or User Content you provide; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the website. You agree to promptly notify the Simply Whispers, Inc. of any third-party Claims, cooperate with the Simply Whispers, Inc. in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Simply Whispers, Inc. will have control of the defense or settlement, at the Simply Whispers, Inc. Parties' sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and the Simply Whispers, Inc. Parties.

 

9. DISPUTE RESOLUTION; BINDING ARBITRATION

 

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Simply Whispers, Inc. and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. If you are a resident of Canada, this section 9 does not apply, except for the last paragraph (Disputes for Canadian Residents), which will apply only to Canadian residents.

No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.

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

 

Arbitration of Disputes. Except for small claims disputes in which you or Simply Whispers, Inc. seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Simply Whispers, Inc. seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Simply Whispers, Inc. waive your rights to a jury trial and to have any dispute arising out of or related to these Terms, our Terms of Sale, and/or products or services purchased through the website resolved in court. Instead, for any dispute or claim that you have against Simply Whispers, Inc., you agree to first contact Simply Whispers, Inc. and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Simply Whispers, Inc. by email at custserv@simplywhispers.com or by certified mail addressed to custserv@simplywhispers.com. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Simply Whispers, Inc. cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings may be conducted in the county of your residence, telephonically or via video conference, at our discretion, and in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and is hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.

You and Simply Whispers, Inc. agree that these Terms affect interstate commerce and that the enforceability of this section 9 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

The arbitrator, Simply Whispers, Inc. and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.

You and Simply Whispers, Inc. agree that for any arbitration you initiate, you will pay the filing fee and Simply Whispers, Inc. will pay the remaining JAMS fees and costs. For any arbitration initiated by Simply Whispers, Inc., Simply Whispers, Inc. will pay all JAMS fees and costs.

Any claim arising out of or related to these Terms or the website must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Simply Whispers, Inc. will not have the right to assert the claim.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this section 9 by writing to us at custserv@simplywhispers.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with section 16.

If any portion of this section 9 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this section 9 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this section 9; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this section 9 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this section 9 will be enforceable.

Disputes for Canadian Residents. If you are a Canadian resident, for any dispute or claim that you have against Simply Whispers, Inc. in relation to or arising from the website, the Terms of Service, the Terms of Sale or any of our products, you agree to first contact Simply Whispers, Inc. and attempt to resolve the claim informally by sending a written notice of your claim ("Canadian Notice") to Simply Whispers, Inc. by email to custserv@simplywhispers.com. The Canadian Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set for the specific relief sought. Our notice to you will be similar in form to that described above. If you and Simply Whispers, Inc. cannot reach an agreement to resolve the claim within thirty (30) days after such Canadian Notice is received, then either party may bring the dispute in court in accordance with section 15.

 

10. LINKING TO OUR SITE

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage or take advantage of our reputation. You may not frame or deep link this website. The website from which you are linking must comply in all respects with applicable laws. You must not establish a link in such a manner that suggests endorsement, association or approval on our part where none exists.

 

11. TERMINATION

We may terminate these Terms and your permission to use the website immediately if: (a) you commit any breach of these Terms; (b) we discontinue the website; (c) we are prevented from providing the website for any reason; or (d) for any other reason as we see fit.

Furthermore, we reserve the right to change, edit, suspend, delete and/or cancel any part of the website (and/or your access to it) at any time with or without notice to you.

On termination of these Terms for any reason: (a) all rights granted to you under these Terms will immediately cease; (b) you must immediately cease all activities authorized by these Terms; and (c) you acknowledge that we may restrict your access to the website. We are not responsible for any loss or harm related to your inability to access or use the website.

When your use of the website ceases, any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

 

12. PROMOTIONS

From time to time, the website may offer sweepstakes, contests or other promotions that, for participation, require you to send material or information about yourself. Please note that sweepstakes, contests or promotions offered via the website may be, and often are, governed by a separate set of rules that, in addition to describing such sweepstakes, contest or promotion, may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the use of material you submit, and supplemental disclosures about how your personal information may be used. It is your responsibility to read such rules to determine whether or not you want to and are eligible to participate, register and/or enter. By entering any such sweepstakes, contest or other promotion, you agree to abide by such rules and the decisions of the sponsor(s) identified therein, which shall be final and binding in all respects. If there is a conflict between these Terms and any separate set of rules that govern sweepstakes, contest or promotions offered via the website, the separate set of rules will control for that conflict.

 

13. COMMUNICATION BETWEEN US

If you wish to contact us in writing, or if any condition in these Terms requires you to give us notice in writing, you can send this to us by e-mail using the contact details at the bottom of these Terms. If we have to contact you or give you notice in writing, we will do so by using the contact details you provide to us. You agree that communications and transactions between us may be conducted electronically.

 

14. OTHER IMPORTANT TERMS 

We may transfer our rights and obligations under these Terms to another organization, but this will not affect your rights or obligations under these Terms.

If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce any of our rights against you, or if we delay in doing so, that will not mean that we have waived any of our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.

Each of the provisions of these Terms operate separately. If any court or competent authority decides that any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. Other than as expressly set out in these Terms, no third party is intended to have any right or ability to enforce any of the provisions of these Terms.

The section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms constitute the entire agreement and understanding between you and us relating to the subject matter of these Terms and supersede any prior agreement or understanding between you and us relating to the subject matter of these Terms.

You acknowledge that you have not entered into these Terms in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these Terms (other than in respect of any fraudulent misrepresentation).

Simply Whispers is a trademark of Simply Whispers, Inc.

 

15. GOVERNING LAW AND VENUE

Any dispute arising from these Terms and your use of the website will be governed by and construed and enforced in accordance with the laws of Massachusetts, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Massachusetts or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Massachusetts and the United States.

 

16. CHANGES TO TERMS

 

We reserve the right to revise these Terms at any time. If we make changes, we will provide you with notice of such changes, such as by amending this page. The amended Terms will be effective immediately and your continued use of the website after any such amendments are published on the website will be considered acceptance by you of such amended Terms. If you do not agree to the amended Terms, you must stop using the website. Updated terms will supersede all previous versions of the Terms. Please check this page regularly to take notice of any changes we have made, as they are binding on you. The date these Terms were last updated appears at the bottom.

 

17. CONTACT US

 

Questions and comments regarding these Terms should be sent to: custserv@simplywhispers.com.

Registered company name: Simply Whispers, Inc. 

Registered address: 50 Perry Avenue, Attleboro, MA 02703

 

 

These Terms were last updated on September 2, 2019.