www.HiHappyHead.com and the software that we license to you. 1. This is a Contract.
THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 21 OR IF YOU OPT-OUT. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION PROVISIONS IN SECTION21 BELOW WHICH ALSO DESCRIBES YOUR RIGHT TO OPT-OUT.
You can review the most current version of the Terms at any time on this page https://www.happyhead.com/terms-of-use/. Happy Head reserves the right to update, change, or replace any part of these Terms by posting updates and/or changes to its Website. It is your responsibility to check this page periodically for changes. YOUR CONTINUED USE OF OR ACCESS TO THE WEBSITE AND/OR SOFTWARE FOLLOWING THE POSTING OF ANY CHANGES CONSTITUTES BINDING ACCEPTANCE OF THOSE CHANGES.
2. Website Use.
By using the Website and agreeing to these Terms, you represent that you are at least the age of majority in your state or province of residence. If you use the Website, you are affirming that you have the legal capacity to enter into a binding contract with us, and have read this Agreement and understand and agree to its terms.
Happy Head provides you a Platform to obtain a prescription for a prescription grade, compounded topical medication by submitting an inquiry to a Health Counselor (hereinafter “Health Counselor” as defined below). Users simply use the Platform and Site, answer questions about their medical history, take a picture of their hair condition, and connect with a Health Counselor to receive information and prescription regarding their hair condition. Happy Head currently uses a HIPAA compliant website to connect users and Health Counselors. Depending upon your medical history and current state of hair condition, your Health Counselor will prescribe a compounded prescription medication. These medications are sent to a compound pharmacy. All prescription medications are made and compounded specifically for you by pharmacists at various compounding pharmacies across the country, and then shipped out to you by them. Users understand that the compounded medication is a prescription drug requiring a prescription to obtain, and Federal Law prohibits the transfer of this drug to any one other than the patient for whom prescribed.
Users understand and agree that Happy Head is not responsible for any information provided by any Health Counselors. Happy Head merely acts as a Platform to allow users to connect with Health Counselors. In addition, no interactions within the Platform create a doctor-patient relationship between Happy Head, Health Counselors, and the user as defined under US federal and state laws. Happy Head is designed to support the health decisions and choices that you make for yourself. In the context of health and wellness, your decisions should always be made in conjunction with your attending physician or health care provider. You agree that you will not use Happy Head and Health Counselors as a substitute for health insurance, a primary care doctor, dermatologist or in-person health care interactions.
3. General Conditions; Restrictions; and Service Disclaimers.
All aspects of our Website and Software are protected by U.S. and international copyright, trademark, and other intellectual property laws. You do not acquire any ownership or other rights by downloading or using the Website and/or Software or any material therein.
You agree not to use or attempt to use the Website, Software or services in any unlawful manner. You further agree not to commit any unlawful act or attempt to commit any unlawful act on or through the Website including, but not limited to: (1) hacking and other digital or physical attacks on the Website or Software; (2) publishing vulgar, obscene, or defamatory material; or (3) any other unlawful act.
Always use common sense when making health decisions. Happy Head cannot make decisions for you. Skin conditions may change, and a skin condition that may appear normal now may not be normal few months from now. Pictures are not perfect and may not tell the full story. As such, they may lead to inaccurate, misleading or wrong erroneous information. See your doctor in person if you are looking for a personal medical evaluation, diagnosis, or prescription. You are being placed on notice that using the platform does not create a doctor-patient relationship between Happy Head, Health Counselors, and the user as defined under US federal and state laws. If you are experiencing a medical emergency or believe that you may have a medical issue please contact 911 and your health care professional immediately. Do not delay receiving treatment for any health or medical issues due to any information found on our Site, Service, or Platform. We do not take any responsibility for the safety or efficacy of any of the products sold through this website, nor for any possible side effects that may result due to the use of these products. It is highly encouraged for consumers to ask their personal physicians about the safety and efficacy of such products before use. None of the products sold on this website is intended to treat, prevent, cure, relieve, resolve, or stop any type of medical condition.
HAPPY HEAD DOES NOT PROVIDE MEDICAL OPINIONS, CARE OR ADVICE AND DO NOT PROVIDE FORMAL MEDICAL DIAGNOSIS, TREATMENT OR PRESCRIPTIONS. ALL HEALTH COUNSELORS ARE DULY LICENSED MEDICAL PROFESSIONALS AND ARE SOLELY RESPONSIBLE FOR ANY INFORMATION OR CONTENT TRANSMITTED BY THEM, ANY PHYSICIAN-PATIENT RELATIONSHIP CREATED BETWEEN THE USER AND A HEALTH COUNSELOR, IS SOLELY BETWEEN THE PARTIES AND DOES NOT INVOLVE HAPPY HEAD; HAPPY HEAD IS NOT A SUBSTITUTE FOR IN-PERSON PROFESSIONAL MEDICAL DIAGNOSIS OR TREATMENT; AND RELIANCE ON ANY INFORMATION PROVIDED BY ANY HEALTH COUNSELOR IS SOLELY AT YOUR OWN RISK. HAPPY HEAD DOES NOT AND DOES NOT INTEND TO PROVIDE MEDICAL EVALUATION OR MEDICAL SERVICES OR MEDICAL OPINION OR ACT IN ANY MANNER AS A PHYSICIAN, OR MEDICAL CORPORATION, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY MEDICAL SERVICES OR MEDICAL OPINIONS RENDERED BY ANY OF THE HEALTH COUNSELORS ON ITS PLATFORM. INTERACTION WITH THE HEALTH COUNSELORS DOES NOT CREATE A DOCTOR -PATIENT RELATIONSHIP UNDER FEDERAL AND STATE LAWS AND YOU SHOULD SEEK ADVICE FROM YOUR REGULAR PHYSICIAN REGARDING ANY MEDICATION OR PRESCRIPTION PROVIDED BY HEALTH COUNSELORS.
4. Health Counselors.
Health Counselors listed on the HAPPY HEAD Platform are licensed medical professionals. Any opinions, advice, or information expressed by any Health Counselor individuals are those of the individual and the individual alone and they do not reflect the opinions of HAPPY HEAD. We do not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the HAPPY HEAD or by a Health Counselor. The inclusion of Health Counselors on the Site or Platform does not imply recommendation or endorsement of such professional nor is such information intended as a tool for verifying the credentials, qualifications, or abilities of any professional contained therein. The relationship between Health Counselors and HAPPY HEAD is that of independent contractors.
Whenever we use the words “your physician,” “your medical practitioner,” “your doctor,” “healthcare provider” or similar words on HAPPY HEAD, including this Agreement, we mean your personal doctor with whom you have of an actual, mutually acknowledged, doctor-patient relationship (or the same kind of formal, real-world relationship between you and your personal professional healthcare provider) within the state that you reside. Health Counselors on HAPPY HEAD are not “your” doctor, physician, medical practitioner, healthcare provider or dermatologist. Aside from consulting with any Health Counselor, it is important that you also receive a medical opinion from your own personal doctor or dermatologist. Interaction between you and the Health Counselor does not establish patient-doctor relationship under federal and state laws. After consulting with a Health Counselor, you should also consult with your personal doctor regarding the treatment and prescriptions. Consultations with Health Counselors are not a substitute for in-person diagnosis, treatment, and screening. Users understand that users may expect anticipated benefits from the use of telehealth in my care, but that no results can be guaranteed or assured.
You agree that you are solely responsible for interactions with Health Counselors and that consultations with Health Counselors are not a substitute for in-person diagnosis, treatment, and screening. To the extent permitted under applicable laws, you hereby release HAPPY HEAD AND HEALTH COUNSELORS from any and all claims or liabilities related to any product or services of Health Counselors, any action or inaction by Health Counselors, including Health Counselors’ failure to comply with applicable law and/or conduct or speech, whether online or offline. ANY INFORMATION PROVIDED BY HEALTH COUNSELORS IS PROVIDED ON AN “AS-IS” BASIS AND HAPPY HEAD AND EVEN THE HEALTH COUNSELORS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. HAPPY HEAD AND HEALTH COUNSELORS SHALL IN NO EVENT BE LIABLE TO YOU OR TO ANYONE FOR ANY DECISION MADE OR ACTION TAKEN BY ANY PARTY (INCLUDING, WITHOUT LIMITATION, ANY USER) IN RELIANCE ON INFORMATION ABOUT HEALTH COUNSELORS ON HAPPY HEAD. IN NO EVENT SHALL HAPPY HEAD, HEALTH COUNSELORS, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INDIRECT OR DIRECT PHYSICAL (INCLUDING DEATH), PSYCHOLOGICAL, EMOTIONAL, FINANCIAL DAMAGES ARISING FROM ANY OPINIONS OR CONTENT RENDERED BY HEALTH COUNSELORS OR ANY PRODUCTS SOLD. The use of HAPPY HEAD by any entity or individual to verify the credentials of Health Counselors is prohibited.
Health Counselor Content
Health Counselors may be able to send you text, email, comments, or other content (“Health Counselor Content”) via the Platform and Service. The Health Counselor Content provided by any Health Counselors represents the opinions and judgments of the respective independent information provider. HAPPY HEAD neither endorses nor is responsible for the accuracy or reliability of any Health Counselor Content including any opinion, advice, or statement made on or through using Happy Head Platform. You agree that under no circumstances will HAPPY HEAD be liable for any loss or damage caused by any Health Counselor’s Content or your reliance on such content. It is the responsibility of you to evaluate the accuracy, completeness, or usefulness of any information, opinion, advice, including any Health Counselor Content available through the HAPPY HEAD Platform. If you have any questions regarding Health Counselor Content please contact your physician or healthcare provider.
[email protected] 6. Prescriptions.
Through the Platform, our Health Counselors may provide users with prescriptions. Users agree that any prescriptions that are received through the Platform shall be solely for their own personal use. Users agree to fully and carefully read all provided product information and labels and to contact a physician or pharmacist if they have any questions regarding the prescription. All prescription medications are made and compounded specifically for you by pharmacists at various compounding pharmacies across the country licensed in your state. User understands that the compounded medication is a prescription drug requiring a prescription to obtain, and Federal Law prohibits the transfer of this drug to any other than the patient for whom prescribed. Users understand and agree that the drugs provided to users are compounded medications. Compounded drugs are not FDA-approved. This means that the FDA does not review these drugs to evaluate their safety, effectiveness, or quality before they reach patients. Finasteride is an FDA approved drug used in an oral form for hair loss. Topical finasteride is a compounded prescription medication and compounded drugs have not been tested or approved by the FDA. The combination of finasteride, minoxidil, retinoic acid and hydrocortisone is a compounded prescription medication prescribed by your doctor and not tested/approved by the FDA
7. Warnings to Consumers.
To view our Warnings to Consumers, please visit https://www.happyhead.com/notice-to-consumers/. We reserve the right to modify our Warnings to Consumers from time to time. Our Warnings to Consumers are incorporated into this Agreement by reference
8. Software License.
Happy Head hereby grants to you, a licensee, a non-exclusive, non-transferable right for the Term to use and access the Software and its related products and services only in accordance with the terms and conditions of this Agreement. The Software is solely for use by you and not for any illegal purpose. This License also permits you to download and use certain downloadable materials (the “
If you purchase a license to use and access our Software and give us permission, we can collect your precise geolocation (latitude and longitude) through various means, depending on the service and device you are using, including GPS, Bluetooth or Wi-Fi connections. Geolocation functionality is required for the Software to work as intended. The collection of your geolocation may occur in the background of your use of our Software even when you are not using the Software if the permission you gave us expressly permits such collection. If you decline permission for us to collect your geolocation, we will not collect it. Similarly, if you consent, we may share your geolocation with third-party emergency service providers who you authorize us to share such geolocation information with such providers. We also encourage parents and guardians to provide expressed consent for their children to use the Software. Otherwise, without parental consent, children are not allowed to use the Software.
10. Accuracy, Completeness, and Timeliness of Information.
While we endeavor to provide accurate and current information on our Website and Software, there may be information on our Website or Software that contains typographical errors, inaccuracies, or omissions that may relate to descriptions, pricing, promotions, offers, geolocation, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information on the Website or Software or on any related services is inaccurate at any time without prior notice (including after you have submitted your order).
The material on the Website is provided as general information only. This Website may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this Website at any time, but we have no obligation to update any information on our Website. You agree that it is your responsibility to monitor changes to our Website
11. Modifications to Website and Prices.
We reserve the right at any time to modify or discontinue access to the Website (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, suspension, or discontinuance of access to the Website.
Certain products or services may be available exclusively online through the Website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We reserve the right to limit the sales of our Software, products and services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. All descriptions of the Software, other products and services and their pricing are subject to change at anytime without notice, at the sole discretion of Happy Head. Any offer for any product or service made on this Website is void where prohibited
12. Fees, Order Placement and Acceptance.
a. Fees. You agree to pay Happy Head a licensing fee for the use of its Software and its related product and services as chosen and indicated by you on the license
request/order page of the Website. In addition, you agree to pay Happy Head additional merchant processing fees in accordance with Happy Head’s then current charges as stated on its license request/order page of the Website. Happy Head’s acceptance of your payment is required before you may use the Software and any of its related products or services. Happy Head may require additional information regarding your license request/order if any required information was missing or inaccurate, and may cancel or limit an order any time after it has been placed. Payment of fees are paid in advance in full and charged automatically by Happy Head charging the credit/debit card or ACH information provided by you for payment or otherwise by a mutually agreed method of payment. If you do not timely pay any fee, your use of the Software and all of its related products and/or services may be immediately suspended. By submitting such card or payment related information, you grant to Happy Head the right to provide such information to third party processors for purposes of facilitating the completion of the transaction initiated or authorized by you or on your behalf. You agree that if you incur any damage from any such third party processor of Happy Head, your sole remedy is only with such third-party processors and not Happy Head. Verification of information may be required prior to the acknowledgment or completion of any transaction. You also acknowledge and agree that Happy Head may increase or amend its current fees, billing rates or terms at any time within its sole discretion. Should Happy Head increase or amend its current fees, billing rates/terms, Happy Head will use commercially reasonable efforts to notify you of the increase or change prior to the conclusion of your then current license subscription.
b. Order Placement and Acceptance. Once we receive your authorized licensed request/order and a verified form of payment has been received, Happy Head will promptly place your license request/order in line for download delivery or other agreed upon delivery means. All Software, products and services are subject to technical delivery and installation cooperation and availability. Happy Head will notify you if any item is not available, the expected availability date, and may offer you an alternative product. If the availability of the Software or any product or service is delayed and you do not wish to substitute the product/service, upon your request, we will cancel your order and if previously charged, your credit card will be fully refunded for that specific order.
c. New Products/Services.
From time to time, Happy Head will offer to you an opportunity to license for a separate fee access and use rights to new products and services per the terms of this Agreement. You agree that if you elect to acquire and purchase licensing rights to any new products or services being offered by Happy Head, you will pay Happy Head a licensing fee per Happy Head’s then current billing terms as reflected on Happy Head’s license request/order page of the Website for such new products or services, and this Agreement shall govern your rights and obligations to such new products or services.
We do not accept orders from dealers, wholesalers, or customers who are resellers
Unless otherwise stated on the website at the time of purchase, we reserve the right to add applicable shipping and handling fees to your order. Once your order is ready for shipment, you will receive an email with a tracking number. Although we may provide delivery or shipment timeframes or dates, such dates are good-faith estimates and are subject to change. We shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery caused by any third party carrier or other delivery service not owned or controlled by us. The risk of loss and title for such items pass to you upon our delivery to any third party carrier. We reserve the right to reject orders where the delivery address is outside of the European Union or North America
14. Auto-Replenishment and Cancellation.
When visiting the Website, you have the option of licensing the Software and may have the option of purchasing other product(s) or service(s) at one time (e.g., a 12-month Software License) through our Auto-Replenish plan where the payment card you provide at the time of entering into your Software License with Happy Head is automatically charged on subsequent dates chosen by you to renew your Software License, or replenish your product(s)/service(s) until you cancel. In our Auto-Replenish plan, you have the ability to control whether you automatically replenish your Software License every 180 or 365 days, with the payment card you provided at the time of entering into your Software License with Happy Head and billed accordingly before your current Software License term is canceled.
IF YOU ARE ENROLLED IN THE AUTO-REPLENISH PLAN AT THE TIME OF YOUR INITIAL SOFTWARE LICENSE AND YOU HAVE PROVIDED US WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH PAYMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF EACH SOFTWARE LICENSE RENEWAL OR INSTALLMENT AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR ENROLLMENT IN THE AUTO-REPLENISH PLAN. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN THE AUTO-REPLENISH PLAN, YOU MAY DO SO AT ANY TIME BY E-MAILING
. [email protected]
If you participate in the Auto-Replenish plan using a credit card and your credit card fails to process for a subsequent Software License term, you agree that we may continue attempting to process your payment as well as contact you on any phone number (including a cell phone number) or e-mail address provided by you for alternate payment information. If you fail to pay for any Software License, product or service received, your account may be sent for collection. In the event we start collection processes of any type, you will be liable for all collection costs, including legal fees and expenses, as provided in Section 23 below
15. DMCA Notice.
This Website and Software maintains specific contact information provided below, including an e-mail address, for notifications of claimed infringement regarding materials posted to this Website. All notices should be addressed to the contact person specified below (our agent for notice of claimed infringement):
Notification of Claimed Infringement:
Attn: Legal 11669 Santa Monica Blvd. Suite 101 Los Angeles, CA 90025
Agent’s Name/Email Address:
You may contact our agent for notice of claimed infringement specified above with complaints regarding allegedly infringing posted material and we will investigate those complaints. If the posted material is believed in good faith by us to violate any applicable law, we will remove or disable access to any such material, and we will notify the posting party that the material has been blocked or removed.
In notifying us of alleged copyright infringement, the DMCA requires that you include the following information: (i) description of the copyrighted work that is the subject of claimed infringement; (ii) description of the infringing material and information sufficient to permit us to locate the alleged material; (iii) contact information for you, including your address, telephone number and/or e-mail address; (iv) a statement by you that you have a good faith belief that the material in the manner complained of is not authorized by the copyright owner, or its agent, or by the operation of any law; (v) a statement by you, signed under penalty of perjury, that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed; and (vi) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner’s behalf. Failure to include all of the above-listed information may result in the delay of the processing of your complaint
16. Social media.
This section applies to everyone who interacts with Happy Head’s social media presence, including comment sections, feeds, and other elements of social media presence viewable on Facebook, Twitter, YouTube, Google+, LinkedIn, or any of the many other available external third party social media platforms we may utilize (“
Social Media Presence”).
17. Submitted materials; User generated content.
All information, ideas, suggestions, concepts, or other materials submitted by you voluntarily or at our request, such as questions sent to us via the Website or user generated content on our Social Media Presence (collectively, “
Submitted Materials”) may be used by us in any lawful manner, provided that personal information portions of Submitted Materials will only be used as described in our Privacy Statement. By providing Submitted Materials you: (a) represent and warrant that you own or otherwise have all necessary rights to do so and that the Submitted Materials comply with all applicable laws; and (b) grant to us a royalty-free, worldwide, perpetual, irrevocable, non-exclusive, and fully transferable, assignable, and sublicensable right and license to copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, make, sell, export, and otherwise use such material (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed. We cannot be responsible for maintaining any Submitted Materials that you provide to us; therefore, you should retain copies of all such data and information in your own records. 18. Testimonials, Reviews, and other Submissions.
Happy Head is pleased to hear from customers and welcomes your comments regarding our products and services. Testimonials represent the unique experience of the customers submitting the testimonial, and do not necessarily reflect the experience that you may have using our products. Your results will vary. Happy Head may use testimonials and/or product reviews in whole or in part in any media together with the name, city, and state of the person submitting it. Happy Head reserves the right to correct grammatical and typing errors, to shorten testimonials prior to publication or use, and to review all testimonials prior to publication or use.
You alone are responsible for any communication, message, and/or other content that you share with Happy Head. You agree that your comments will not violate any right of any third-party. We take no responsibility and assume no liability for any comments posted by you or any third-party
19. Third-party websites and content.
Our Website and Software may include materials from third-parties or links to third-party websites. We are not liable for any third-party materials or websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party
20. Disclaimer of Warranties.
THE SOFTWARE, WEBSITE AND THE MATERIALS AND PRODUCTS CONTAINED AND OFFERED ON THE SOFTWARE AND WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HAPPY HEAD, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, MEMBERS, MANAGERS, SHAREHOLDERS, AND REPRESENTATIVES (THE “
HAPPY HEAD PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE, WEBSITE AND PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IF YOU ARE DISSATISFIED, YOUR SOLE REMEDY IS TO DISCONTINUE USE OF THE SOFTWARE, WEBSITE AND PRODUCTS.
WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF OUR SOFTWARE AND WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. WE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE OR WEBSITE WILL BE ACCURATE OR RELIABLE. YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SOFTWARE OR WEBSITE FOR INDEFINITE PERIODS OF TIME OR CANCEL THE SOFTWARE OR WEBSITE OR ANY PRODUCT AT ANY TIME, WITHOUT NOTICE TO YOU.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE AND WEBSITE IS AT YOUR SOLE RISK
21. Limitation of Liabilities.
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, INCLUDING THE STATE OF CALIFORNIA, IN NO CASE SHALL HAPPY HEAD, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS, OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OR ATTEMPTED USE OF ANY PART OF THE SOFTWARE, WEBSITE OR ANY PRODUCTS/SERVICES PROCURED ON OR THROUGH THE SOFTWARE, WEBSITE, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OR ATTEMPTED USE OF THE SOFTWARE, WEBSITE OR ANY PRODUCT/SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SOFTWARE, WEBSITE OR ANY SERVICE, CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SOFTWARE OR WEBSITE, EVEN IF ADVISED OF THEIR POSSIBILITY.
IF, NOTWITHSTANDING THE LIMITATION OF LIABILITY SET FORTH ABOVE, HAPPY HEAD IS FOUND LIABLE UNDER ANY THEORY, HAPPY HEAD’S LIABILITY AND YOUR EXCLUSIVE REMEDY WILL BE LIMITED TO THE LESSER OF (I) USD $500.00, OR (II) THE TOTAL AMOUNT OF MONEY YOU PAID TO HAPPY HEAD IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT ON WHICH YOUR ALLEGED CLAIM IS BASED. THIS LIMITATION OF LIABILITY SHALL APPLY FOR ALL CLAIMS, REGARDLESS OF WHETHER HAPPY HEAD WAS AWARE OF OR ADVISED IN ADVANCE OF THE POSSIBILITY OF DAMAGES OR SUCH CLAIMS. SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, THIS LIMITATION OF LIABILITY DOES NOT APPLY TO CONSUMERS DOMICLED IN A STATE WHERE THIS LIMITATION IS OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.
a. Required Pre-Dispute Procedures.
We acknowledge and agree that before initiating any claim against the other, we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution. You may send the written description of any dispute you have with us by e-mail help
@happyhead.com. Happy Head will contact you by letter at the billing address you provided to us or at the email address you provided to us. You agree to negotiate with Happy Head or its designated representative in good faith about your problem or dispute. If for some reason the dispute is not resolved within 60 days after receipt of the written dispute, we agree to the dispute resolution provisions below. Notwithstanding the foregoing or any other term of this arbitration agreement, we will have the right to seek injunctive or other equitable relief in state or federal court located in Los Angeles, California to enforce these Terms or prevent an infringement of a third party’s rights or our intellectual property rights, as stated in subsection “i” below. You hereby expressly consent to, and forever waive any challenge to, the exclusive personal jurisdiction and venue of said courts in such actions b. Commencing Arbitration.
You and Happy Head agree to commence any arbitration proceeding within 1 year after the claim arises (the 1 year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after 1 year shall be forever barred
c. Arbitration Location.
If the amount in controversy is $500 or less, then the arbitration may be conducted by telephone or by written submissions. Otherwise, the arbitration shall be conducted in Los Angeles, California unless Happy Head otherwise agrees to arbitrate in another forum requested by you
d. Organization, Rules, and the Arbitrator.
We each agree that any and all claims other than those exempted under subsection “i” below shall be submitted to final and binding confidential arbitration before a single arbitrator of the American Arbitration Association (“AAA”). Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party, within the time period set forth in subsection “b” above. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. The AAA’s Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules. We will reimburse the fees charged by the arbitrator for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses
f. Governing Law and Award.
The arbitrator shall follow the substantive law of the State of California without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards
This provision survives termination of your account or relationship with Happy Head, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect
Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except all claims must be brought within the 1 year limitation period set forth above. This provision is the entire arbitration agreement between you and Happy Head and shall not be modified except in writing by Happy Head
Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and Happy Head both retain the right to pursue, in small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court’s jurisdiction. Happy Head will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court. The following claims shall not be subject to final and binding arbitration and must be adjudicated only in the state or federal courts located in Los Angeles, California: (i) any dispute, controversy, or claim relating to the infringement or validity of our proprietary rights, including without limitation, trademarks, service marks, trade dress, copyrights, trade secrets, or patents, or the intellectual property rights of a third-party; or (ii) an action by Happy Head for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of this Agreement. You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection “i” in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration. Small claims matters may be filed in any small claims court with personal and subject matter jurisdiction over the parties. For all other matters excluded from final and binding arbitration by this subsection “i,” the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Los Angeles, California, and forever waive any challenge to said courts’ jurisdiction and venue
Happy Head reserves the right to amend this arbitration provision at any time. Your continued use of the Website, purchase of any product or services on or through the Website, or use or attempted use of an Happy Head product or service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Happy Head will provide you notice and an opportunity to opt-out. Your continued use of the Website, purchase or use of any products or services on or through the Website, or use or attempted use of a Happy Head product or service, is affirmation of your consent to such material changes.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU PURCHASE, USE, OR ATTEMPT TO USE A SERVICE OR PRODUCT PURCHASED ON OR THROUGH THE WEBSITE (WHICHEVER COMES FIRST) BY WRITING TO US AT
[email protected] FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT OR SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED, OR ATTEMPTED TO USE THE PRODUCT OR SERVICE. IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT.
Should either party file an action contrary to this provision, the other party may recover attorney’s fees and costs up to $1000.00.
23. Electronic Communications.
You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless Happy Head and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns, and employees, from and against any and all claims, actions, losses, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to, reasonable attorneys’ fees, arising out of, resulting from, or in any way connected with or related to (1) your breach of these Terms, the documents they incorporate by reference, or the Agreement;(2) your breach of any representations or warranties in this Agreement; or (3) your violation of any law or the rights of a third-party.
In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms. Such determination shall not affect the validity and enforceability of any other remaining provisions.
26. Term and termination.
In the event that we terminate this Agreement for your material breach, Sections 20-22, Section 24-25, and Section 30, as well as any representations, warranties, and other obligations made or undertaken by you, shall survive the termination of this Agreement and/or your account or relationship with Happy Head.
27. California Users and Residents.
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Happy Head must be sent to our agent for notice to:
Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
28. California Residents Prop 65 Warning.
WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov
For more information about CA Prop 65 and your product, please call us at 800-559-1381.
29. CCPA Opt-Out Page.
[email protected] or text us at 213-464-0214. 30. Entire Agreement.
These Terms, the Agreement, and any policies or operating rules posted by us on the Website or in respect to the Website constitutes the entire agreement and understanding between you and Happy Head, and supersedes and replaces any prior or contemporaneous agreements. Any ambiguities in the interpretation of these Terms or the Agreement shall not be construed against the drafting party.
31. Contact us.
If you have questions please contact us by mail at Hi Happy Head, 11669 Santa Monica Blvd., Suite 101, Los Angeles, California USA or by email at
[email protected] 32. Changes.
These Terms are tailored to the use of, and the possibilities on this Website and our Software. Any modifications and / or changes to this Website or Software may lead to changes to these Terms, our
Privacy Statement and our collective Agreement with you. It is therefore advisable to consult these Terms regularly. These Terms were last updated on March 1, 2021.