Terms of Service
Last updated: 4/26/2024
Introduction
These Terms of Service ("Terms") govern your use of Moodtalker and the software, content, and services (collectively, "Services") offered through: our mobile app Moodtalker for iOS and Android (the "Apps").
Please read these terms carefully before you start using the Services.
The term "device" refers to the device which is used to access the Services including but not limited to computers, smart phones and tablets.
The term "you" refers to the user of the Services.
When you sign up for any of the Services or otherwise use or access them, you agree to be bound by these Terms and all applicable laws, rules, and regulations. By using the Services, you indicate that you accept these Terms and that you agree to abide by them. If you do not agree to these Terms, please refrain from using the services.
1. OUR SERVICES
Moodtalker offers [a self-help program based on communication with your personal chatbot through a text and voice interface.]
1.1. Modification of the service
We reserve the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Moodtalker will not be liable to you or to any third party for any modification, suspension or discontinuance of any the Services.
1.2. Suspension or termination of services
We may suspend or terminate your use of the Services as a result of your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice.
1.3. General practices regarding use and storage
You acknowledge that we may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on our servers on your behalf. You agree that Moodtalker has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that we reserve the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
1.4. Fees and payment
You may be required to pay fees to us to access or use the Services or certain features of the Services. You are responsible for paying any applicable fees listed on the Services. Except as expressly provided in these Terms, all fees are non-refundable to the fullest extent permissible under applicable law.
Fees may be recurring or based on usage. If these fees are specified to be recurring or based on usage, you agree that we may charge such fees on a periodic basis to the payment method you specify at the time of your initial purchase (your "Payment Method"). By using a Payment Method to pay fees, you are expressly agreeing that we are authorized to charge to the Payment Method the fees, together with any applicable taxes.
Except where we specifically agree otherwise in a separate contract with you, you acknowledge and agree that any fees for access to or use of the Services may increase at any time. Additional fees may apply for additional Services or features of the Services that Moodtalker may make available. In those cases, we will provide you with notice before charging the additional fees. If we charge additional fees in connection with our Services, you will have an opportunity to review and accept the additional fees that you will be charged before being charged. If you do not accept any such additional fees, we may discontinue your access to the Services or features. You acknowledge and agree that we will not be held liable for any errors caused by third-party payment processors that we may use.
1.5. Subscription
Once you create a Moodtalker Account (defined below), you can choose one of the subscription programs offered in Moodtalker:
1.5.1. "Free Use": a free-of-charge program. The "Free Use" is aimed at users who cannot afford any of our subscription-fee based programs. We reserve the right to deny the free use to anyone at any time on our own discretion.
1.5.2. "Moodtalker vip": a subscription-fee based program, which gives full access to the Services.
You can become a subscriber to a paid subscription program (the "Paid Subscriptions") by purchasing a subscription to the Services within the Apps, where allowed by the App marketplace partners (e.g. Apple iTunes Store and Google Play store).
Any of our paid subscriptions shall be paid in monthly installments and processed by the App marketplace partner through which you originally acquired the subscription.
You will only have access to a paid subscription while it is active and subsisting. Should you fail to pay your subscription after due date, you will automatically downgrade to "Free Use".
The renewal subscription fees will continue to be billed to the Payment Method you provided through the marketplace, automatically until canceled. You must cancel your subscription before it renews each billing period to avoid billing of the next subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial-month subscription period. You can modify or cancel your paid subscription only through the App marketplace where you originally acquired the subscription.
2. CONDITIONS OF USE
2.1. User conduct
You are solely responsible for all code, video, audio, images, information, data, text, software, music, sound, photographs, graphics, message s or other materials ("content") that you upload, post, publish or display (hereinafter, "upload") or email or otherwise use via the Services. The following are examples of the kind of content and/or use that is illegal or prohibited by Moodtalker. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, including without limitation, removing the offending content from the Services, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Services to:
a. Submit, transmit, email or otherwise upload any content that
(i) infringes any intellectual property or other proprietary rights of any party;
(ii) you do not have a right to upload under any law or under contractual or fiduciary relationships;
(iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(iv) poses or creates a privacy or security risk to any person;
(v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation;
(vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically or otherwise objectionable; or
(vii) in the sole judgment of Moodtalker, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Moodtalker or its users to any harm or liability of any type;
b. Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services; or
c. Violate any applicable local, state, national, or international law, or any regulations having the force of law;
d. Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e. Solicit personal information from anyone under the age of 18;
f. Harvest or collect email addresses or other contact information of other users from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
g. Advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
h. Further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
i. Obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services.
2.2. Commercial use
The Service is for personal use only. Unless otherwise expressly authorized herein or in the Services, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or upload for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
2.3. Use by minors
These Services do not address anyone under the age of 16. If you are above 16 but under 18, you must have your parent or legal guardian's permission to use the Services. If you use the Services on behalf of another person or entity, you must have the authority to accept the Terms on their behalf.
You must provide accurate and complete information to register for an account. You may not make your access credentials or account available to others outside your organization, and you are responsible for all activities that occur using your credentials.
We do not knowingly collect personally identifiable information from minors under 13 years of age. In the case we discover that a minor under 13 has provided us with personal information, we immediately delete this from our servers. If you are a parent or guardian and you are aware that your child has provided us with personal information, please contact us so that we will be able to do the necessary actions.
2.4. Account Registration and Security
1. Account Creation
To utilize certain features of Moodtalker's Services, you are required to create an account ("Account"). During the account registration process, you agree to provide accurate, current, and complete information as prompted by the registration form ("Registration Data").
2. Confidentiality of Credentials
You are solely responsible for maintaining the confidentiality of your login credentials, including but not limited to your username, password, and any other piece of information used as part of our security procedures. You must not disclose your login credentials to any third party, and you are entirely responsible for any and all activities that occur under your Account.
3. Security and Backup
You are responsible for implementing adequate security and backup features, including appropriate encryption methods, to protect your Account and any content related to it from unauthorized access. It is strongly recommended that you routinely archive or backup your content and Registration Data.
4. Limitation of Liability
Moodtalker shall not be liable for any loss, damage, or other security incidents that may occur from your failure to comply with this section. Any activities performed under your Account will be deemed as your own actions and will be subject to terms and conditions as stipulated in this Agreement.
5. Termination of Account
You may delete your Account at any time by deactivating your account. We reserve the right to suspend or terminate your Account, in accordance with Section 1.2, if we have reasonable grounds to believe that the information provided is inaccurate, not current, incomplete, or if your use of the Account is in breach of any of these Terms.
2.5. Mobile network
If you're using the app outside of an area with Wi-Fi, you should remember that your terms of the agreement with your mobile network provider will still apply. As a result, you may be charged by your mobile provider for the cost of data for the duration of the connection while accessing the app, or other third party charges. In using the app, you're accepting responsibility for any such charges, including roaming data charges if you use the app outside of your home territory (i.e. region or country) without turning off data roaming. If you are not the bill pay er for the device on which you're using the app, please be aware that we assume that you have received permission from the bill pay er for using the app.
2.6. Mobile services
Some of our Services are available via a mobile device, including (i) the ability to upload content to the Services via a mobile device, (ii) the ability to browse the Services and the Website from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the "Mobile Services"). To the extent you access the Services through a mobile device, your wireless service carrier's standard charges, data rates, and other fees may apply.
In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
By using the Mobile Services, you agree that we may communicate with you regarding Moodtalker and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Moodtalker account information to ensure that your messages are not sent to the person that acquires your old number.
2.7. Special notice for international use; Export controls
Software (defined below) available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U. S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. Service content, software, and trademarks
You acknowledge and agree that the Services may contain content or features ("Service Content") that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by Moodtalker, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Services or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Services.
In connection with your use of the Services, you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Moodtalker from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e. g., by masking your IP address or using a pro xy IP address). Any use of the Services or the Service Content other than as specifically authorized herein is strictly prohibited.
The technology and software underlying the Services or distributed in connection therewith are the property of Moodtalker, our affiliates and our partners (the "Software").You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Moodtalker.
3.2. Third party material
Under no circumstances will Moodtalker be liable in any way for any content or materials of any third parties (including users), 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 such content. You acknowledge that Moodtalker does not pre-screen content, but Moodtalk and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, Moodtalker and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Moodtalker, in its sole discretion, to be objectionable. You agree that you must evaluate and bear all risks associated with the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
3.3. User content transmitted through the Services
3.3.1. Ownership and Warranties
Any text, images, videos, data, or other materials that you create, upload, or generate using Moodtalker Services shall collectively be referred to as "User-Generated Content." You retain complete ownership of all User-Generated Content that you produce through Moodtalker Services, including intellectual property rights and other proprietary rights. To the extent you create derivative works, you own all rights in those derivative works as permissible under applicable law.
With respect to the content or other materials you upload through the Services or share with other users or recipients (collectively, "User Content"), you represent and warrant that you own all rights, title, and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein.
By uploading any User Content, you hereby grant and will grant Moodtalker and its affiliated companies a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of the Services or the promotion, advertising, or marketing thereof in any form, medium, or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information about the Services ("Submissions"), provided by you to Moodtalker, are non-confidential and Moodtalker will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You acknowledge and agree that Moodtalker may preserve content and may also disclose content if required to do so by law or in the good faith belief.
You further acknowledge that you, and not Moodtalker, are entirely responsible for all User Content that you upload, post, e-mail, transmit or otherwise make available through Moodtalker's Services, and that you and other Registered Users of Moodtalker, and not Moodtalker, are similarly responsible for all Content that you and they make available through Moodtalker's Services.
For avoidance of doubt, violations of Moodtalker's Terms of Use unrelated to intellectual property issues does not affect the user's intellectual property rights in any characters or their generations.
3.3.2. Similarity of Content
Due to the machine learning algorithms deployed by Moodtalker, the output generated by the Services may resemble outputs for other users. Such outputs are not considered your exclusive content.
3.3.3. Accuracy of Output
The Services are based on rapidly evolving fields of AI and machine learning. You acknowledge that our outputs may contain inaccuracies or errors. You are responsible for evaluating the accuracy of outputs for your use case.
3.4. Monitoring and Enforcement
Moodtalker may, but not obligated to:
(a) remove or refuse to post any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Terms of Use, infringes any intellectual property right or other right of any person or entity, or could create liability for the Company;
(b) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or
(c) terminate or suspend your access to all or part of the Services for any reason or no reason, including any violation of this Terms of Use.
Please note that the successful uploading of Content does not constitute an endorsement by Moodtalker of the legality or appropriateness of said Content.
3.5. Other Intellectual Property Rights
You represent and warrant that the User Content does not infringe upon the trademark, patent, trade secret or other intellectual property rights of any third party.
If you believe that any content infringes third party rights or does not comply with these Terms, you can send us an email at moodtalker@mindera.com.cn with the required documents and information under this Section.
4. THIRD PARTY WEBSITES
The Services may provide links or other access to other sites and resources on the Internet. We have no control over such sites and resources and we are not responsible for and do not endorse such sites and resources. You further acknowledge and agree that Moodtalker will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that Moodtalker is not liable for any loss or claim that you may have against any such third party.
5. SOCIAL NETWORKING SERVICES
You may enable, connect or log in to the Services via various online third party services, such as social media and social networking services like Facebook, Instagram or Twitter ("Social Networking Services"). By logging in or directly integrating these Social Networking Services into the Services, we make your online experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for or log into Social Networking Services on the websites of their respective providers. As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to such Social Networking Services, and we will use, store and disclose such information in accordance with our Privacy Policy. However, please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third parties, and Moodtalker shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service.
In addition, Moodtalker is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Moodtalker is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Moodtalker enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
6. DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS"AND "AS AVAILABLE" BASIS.COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Moodtalker MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS,(II)THE SERVICE WILL BE UNINTERRUPTED,TIMELY, SECURE,OR ERROR-FREE,(III)THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV)THE QUALITY OF ANY PRODUCTS, SERVICES,INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
7. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Moodtalker WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE,DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),WHETHER BASED ON CONTRACT, TORT,NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE;(II)THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROMANY GOODS,DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III)UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE;OR (V)ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL Moodtalker' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID COMPANY IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
8. Indemnification and Equitable Relief
8.1 Indemnification
You agree to defend, indemnify, and hold harmless Moodtalker, its subsidiaries, affiliates, officers, directors, employees, agents, and licensors (collectively referred to as the "Moodtalker Parties") from and against any claims, actions, losses, damages, expenses, including reasonable attorneys' fees, resulting from or relating to:
a. Your use of the Moodtalker Services, including any user-generated content or activities under your Moodtalker account;
b. Any breach of this Agreement, including violations of any applicable laws or rights of a third party; or
c. Any disputes between you and other users of the Moodtalker Services.
8.2 Equitable Relief
You acknowledge that your violation of this Agreement may cause irreparable harm to Moodtalker. Therefore, Moodtalker shall have the right to seek injunctive or other equitable relief against you in addition to any other legal remedies available. You waive any requirement that Moodtalker post a bond or other security in connection with such relief.
9. ARBITRATION
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS. BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE. THE LAWS OF SOME JURISDICTIONS DO NOT ALLOW MANDATORY ARBITRATION PROVISIONS OR className ACTION WAIVERS, SO SOME OR ALL OF THIS SECTION 8 MAY NOT APPLY TO YOU.
In order to expedite and control the cost of disputes, Moodtalker and you agree that any legal or equitable claim, dispute, action, or proceeding arising from or related to your use of the Services or these Terms ("Dispute") will be resolved as follows to the fullest extent permitted by applicable law. This applies to all Disputes, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, even if the Dispute arises after the termination of these Terms.
YOU UNDERSTAND AND AGREE THAT YOU AND Moodtalker ARE HEREBY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO JOIN AND PARTICIPATE IN A className ACTION, TO THE FULLEST EXTENT PERMITTED UNDER THE LAW.
a. Opt-Out of Arbitration Agreement. If you are an individual consumer, you can opt out of arbitration within 30 days of the date that you first agreed to these Terms (including any earlier version). If you are an individual consumer and have previously agreed to arbitration, then you may opt out of any future revisions to the arbitration provision within 30 days of receiving notice of the updated arbitration provision, in which case the prior version of the arbitration provision will apply. To opt out of arbitration (or revisions to this arbitration provision), you must send your name, residence address, username, email or phone number you use for your Services account, and a clear statement that you want to opt out of this arbitration agreement (or of the revisions to it), and you must send them here: Moodtalker@mindera.com.cn.
b. Notice of Dispute. In the event of a Dispute, you or Moodtalker must give the other a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution (a "Notice of Dispute"). You must send any Notice of Dispute by first className Mail to Moodtalker at 3 Panlong New St.Room 708 Pazhou,Haizhu,Guangzhou,510000,China and also via email to Moodtalker@mindera.com.cn. Moodtalker will send any Notice of Dispute to you by first className Mail to your address if Moodtalker has it, or otherwise to your email address. You and Moodtalker will attempt to resolve any Dispute through informal negotiation within 45 days from the date the Notice of Dispute is sent. After 45 days, you or Moodtalker may commence arbitration. An arbitrator will decide any disputes over whether this subsection has been violated, and has the power to enjoin the filing or prosecution of arbitrations. Unless prohibited by applicable law, the arbitrator will not administer any arbitration unless the requirements of this subsection have been met.
c. Mediation, Binding Arbitration, and Governing Law. You and Moodtalker will endeavor to settle any Dispute by mediation under the Mediation Rules of Judicial Arbitration and Mediation Services, Inc. ("JAMS"). The place of mediation will be China. Any Dispute which has not been resolved by mediation as provided herein within 30 days after appointment of a mediator or such time period as you or Moodtalker may otherwise agree, will be finally resolved by binding arbitration as described in this Section 8. You are giving up the right to litigate (or participate in as a party or className member) all Disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. The arbitrator will decide all issues pertaining to arbitrability, including his or her own jurisdictional validity and enforceability of the Agreement (e.g., unconscionability). For the avoidance of doubt, this is not meant to reduce any powers granted to the arbitrator under the applicable JAMS rules. The place of arbitration will be China. Any court with jurisdiction over the parties may enforce the arbitrator's award.
d. className Action Waiver. TO THE FULL ESTEXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU AND Moodtalker AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND NEITHER YOU NOR Moodtalker WILL SEEK TO HAVE ANY DISPUTE HEARD AS A className ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. className ACTIONS AND className ARBITRATIONS ARE NOT PERMITTED; for example, you may bring a claim only on your own behalf and cannot seek relief that would affect other Services users. Nor may an arbitrator consolidate arbitrations unless all parties agree. If there is a final judicial determination that the limitations of this paragraph are unenforceable as to a particular claim or a particular request for relief (such as a request for injunctive relief), then the parties agree that such a claim or request for relief will be decided by a court after all other claims and requests for relief are arbitrated.
e. Mass Arbitrations. If 10 or more claimants submit similar Notices of Dispute or file similar arbitrations and are represented by the same or coordinated counsel, all of the cases must be resolved in arbitration in stages using staged bellwether proceedings. You agree to do this even though the resolution of some claims might be delayed. In the first stage, the parties will select up to 5 cases to be filed in arbitration and resolved by separate arbitrators. In the meantime, no other cases may be filed in arbitration. Nor may the arbitration provider accept, administer or demand payment for fees for other arbitrations. If the remaining cases are not settled after the first stage is done, the parties will repeat the process. These staged bellwether proceedings will continue until all cases are resolved. If this subsection applies to a Notice of Dispute, any statute of limitations applicable to the listed claims will be tolled from the time the first cases are selected for bellwether proceedings until the claimant's Notice of Dispute is selected for a bellwether proceeding or otherwise resolved. A court will have the authority to en force this subsection, including the power to enjoin the filing or prosecution of arbitrations or assessment of related fees.
f. Arbitration Procedures. Any arbitration will be conducted by JAMS under the JAMS Comprehensive Arbitration Rules and Procedures ("JAMS Rules") in effect at the time the Dispute is filed. You may request a telephonic or in-person hearing by following the JAMS Rules. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. To the extent the forum provided by JAMS is unavailable, Moodtalker and you agree to select a mutually agreeable alternative dispute resolution service and that such alternative dispute resolution service will apply the JAMS Rules. Subject to the limitations of liability contained herein, the arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim.
g. Arbitration Fees. Whoever files the arbitration will pay the initial filing fee. If Moodtalker files, then Moodtalker will pay; if you file, then you will pay unless you get a fee waiver under the applicable arbitration rules. Each party will bear the expense of that party's attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses (including attorney's fees) from another party if the arbitrator, applying applicable law, so determines.
h. Filing Period. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ANY DISPUTE UNDER THESE TERMS MUST BE FILED WITHIN ONE (1)YEAR IN AN ARBITRATION PROCEEDING. The one-year period begins on the earliest date when any of the events giving rise to the Dispute first occurs. If a claim is not submitted within one year, it is permanently barred. This period can only be extended by the written consent of both parties. No statutes or provisions of law that would toll or otherwise affect the time in which a party may bring a claim will operate to extend the period limited in this Section 8, and any such statutes and provisions are hereby waived, to the fullest extent permissible under applicable law.
i. Enforceability. If the waiver of className actions above is found unenforceable, or this entire section is found unenforceable, then this entire section will be null and void. If that happens, you and Moodtalker agree that our Terms will be governed by and construed and interpreted in accordance with the laws of China, without giving effect to conflict of law principles. If a lawsuit or court proceeding is permitted under our Terms notwithstanding Section 8, you and Moodtalker agree that any such dispute will be litigated in the state or federal courts located in China, and you and Moodtalker submit to the personal and exclusive jurisdiction of those courts. By using the Services, you waive any claims that may arise under the laws of other jurisdictions.
j. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
10. USER DISPUTES
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Moodtalker will have no liability or responsibility with respect there to. Moodtalker reserves the right but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
11. CHANGES TO TERMS OF SERVICE
We may update our Terms of Service from time to time. Thus, you are advised to review this page periodically for any changes. We will notify you of any changes by posting the new Terms and Conditions on this page.
12. YOUR PRIVACY
At Moodtalker, we respect the privacy of our users. For details please see our Privacy Policy. By using the Service, you consent to our collection and use of personal data as outlined therein.
13. Miscellaneous
13.1. Relationship of the Parties
These Terms do not create a partnership, joint venture or agency relationship between you and Moodtalker or any of Moodtalker's affiliates. Moodtalker and you are independent contractors and neither party will have the power to bind the other or to incur obligations on the other's behalf without the other party's prior written consent.
13.2. Entire Agreement
These Terms constitute the entire agreement between you and Moodtalker and govern your use of our Services, superseding any prior agreements between you and Moodtalker with respect to the Services.
13.3. Severance
If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
13.4. Assignment and Delegation
You may not assign or delegate any rights or obligations under these Terms, including in connection with a change of control. Any purported assignment and delegation shall be null and void. We may assign these Terms in connection with a merger, acquisition or sale of all or substantially all of our assets, or to any affiliate or as part of a corporate reorganization.
Contact Us
If you have any questions or suggestions about our Terms and Conditions, do not hesitate to contact us at Moodtalker@mindera.com.cn.