Terms of Service
(Effective as of 4/17/2019)
Welcome to Listenly, a website (https://listenly.co/, the “Site”) and application (the “App”) operated by Mindful Technologies LLC (the “Company”).
Please review these Terms carefully. By accessing or using the Site or App, you show you agree to these Terms. If you don’t agree to these Terms, you may not access or use the Site or App.
ABOUT THE SITE
The Site is a platform for active listening. It allows Speakers to view profiles of Listeners, book appointments with them, and submit payment for listening sessions. Sessions take place via text, audio, and video chat on the platform.
Services provided by the Site are called the “Service.”
You will also be asked to create a password.
Also, please note that the Site is under constant development. New features may be added frequently, so it’s important to check back to this page for updates.
The Site and App are not intended for individuals experiencing a mental or emotional crisis.
If you are in crisis, do not use the Site or App and call the national suicide prevention hotline for immediate help at 1-800-273-8255.
If you choose to meet your Speaker or Listener in person, make sure the first meeting is in a safe public space.
We recommend that you perform all communication with your Speaker or Listener through the Site or App and not share personal email, phone, or address information.
The Site collects a fee from Speakers every time an appointment is booked. The Site charges a portion of the fees for its Services, and forwards the rest of the fee to the Listeners.
Our fees are listed here.
Fees are currently collected via Stripe (our "Billing Service Provider"), which has its own legal terms.
Fees to Listeners are paid via Stripe within 10 days of a scheduled session.
You will be required to provide the Company and/or its Billing Service Provider with information regarding your credit card or other payment method. You represent and warrant that such information is true and that you are authorized to use the payment method.
You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date). You hereby authorize the Company to bill you in accordance with the terms of your plan until you terminate your account, and you agree to pay any charges so incurred. If you dispute any charges you must notify the Company within thirty (30) days after the date that you are billed.
You can terminate your use of the Service, change your password, and otherwise manage your account using the Site and App.
We reserve the right to change the Company’s fees. If the Company does change its fees, the Company will provide notice of the change on the Site or App or in email to you, at Company’s option, at least 14 days before the change is to take effect. Your continued use of the Service after the fee change becomes effective constitutes your agreement to pay the changed amount.
If a Speaker cancels a session prior to the scheduled time, or fails to appear for a session, no refunds are provided.
If a Listener cancels a session prior to the scheduled time, or fails to appear for a session, notify us immediately by emailing email@example.com. If the Listener provides written notification to the Company within 10 days of the scheduled session, 100% of the Speaker’s fee will be refunded within 30 days of the scheduled session.
CONTENT AND RESTRICTIONS
You may provide text, images, software, videos and/or other material, including third party content (“User Content”) that you share using the Site.
Your User Content belongs to you (or to the relevant third parties). However, you grant the Company the following non-exclusive license: a worldwide, transferable and sub-licensable right to use, copy, modify, distribute, publish, and process, information and your User Content that you provide through the Site, without any further consent, notice and/or compensation to you or others.
Other users may access and share your User Content and information, via the Site, social media, email, and otherwise.
If you wish us to remove your User Content from the Site, please send an email to firstname.lastname@example.org and we will do so within ten business days of receiving your request. (However, we may retain copies of your User Content, not accessible to the public, on our backup servers even after you request removal.)
You are solely responsible for the User Content that you make available via the Site. You agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.
The following rules pertain to User Content. By transmitting and submitting any User Content while using the Site, you agree as follows:
You are solely responsible for your account and the activity that occurs while signed in to or while using your account;
You will not post information that is malicious, false or inaccurate;
You will not submit content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such content, or unless your use of the content is within the scope of fair use; and
You understand and agree that any liability, loss or damage that occurs as a result of the use of any User Content that you make available or access through your use of the Site is solely your responsibility.
The Company is not responsible for any public display or misuse of your User Content. The Company does not, and cannot, pre-screen or monitor all User Content. However, at our discretion, we, or technology we use, may monitor and/or record your interactions with the Site.
USE OF THE SITE
You need to be at least 18 years old to use the Site.
You hereby affirm we have the right to terminate your account with or without prior notice.
Your permission to use the Site is conditioned upon the following restrictions and conditions.
You agree that you will not:
use, display, mirror or frame the Site or any individual element within the Site, Company’s name, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page or within the App, without Company’s express written consent;
access, tamper with, or use non-public areas of the Site, Company’s computer systems, or the technical delivery systems of Company’s providers;
attempt to probe, scan or test the vulnerability of any Company system or network or breach any security or authentication measures;
avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Company or any of Company’s providers or any other third party (including another user) to protect the Site;
use any meta tags or other hidden text or metadata utilizing a Company trademark, logo URL or product name without Company’s express written consent;
use the Site, or any portion thereof, for any commercial purpose or for the benefit of any third party other than as permitted by these Terms;
forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site to send altered, deceptive or false source-identifying information;
collect or store any personally identifiable information from the Site or from other users of the Site without their express permission;
impersonate or misrepresent your affiliation with any person or entity;
sublicense, resell, rent, lease, transfer, assign, time share, or otherwise commercially exploit or make the Site available to any third party;
use the Site for any unlawful purpose or for the promotion of illegal activities;
use the Site to attempt to, or harass, abuse or harm another person or group;
use another user’s account without permission;
interfere or attempt to interfere with the proper functioning of the Site;
make any automated use of the Site, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
attempt to decipher, reverse engineer, decompile, or disassemble any portion of the Site or the software used to provide the Service;
bypass any robot exclusion headers or other measures we take to restrict access to the Site or use any software, technology, or device to scrape, spider, or crawl the Site or harvest or manipulate data;
publish or link to malicious content intended to damage or disrupt another user’s browser, computer, or mobile device; or
encourage or enable any other individual to do any of the foregoing.
MONITORING AND COMPLIANCE
Although the Company is not obligated to monitor access to or use of the Site or to review or edit any Content, we have the right to do so for the purpose of operating the Site, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to the Site or any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
You acknowledge and agree that the Company and its licensors retain ownership of all intellectual property rights of any kind related to the Site (except for User Content), including applicable copyrights, trademarks, and other proprietary rights. The Company reserves all rights that are not expressly granted to you under these Terms.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements of the Site (“Feedback”). You may submit Feedback by emailing us at email@example.com. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable (through several tiers) and transferable license under any and all intellectual property rights that you own or control in relation to the Feedback to use, reproduce, view, communicate to the public by any means, print, copy (whether onto hard disk or other media), edit, translate, perform and display (publicly or otherwise), distribute, redistribute, modify, adapt, make, sell, offer to sell, transmit, license, transfer, stream, broadcast, create derivative works from, and otherwise use and exploit the Feedback for any purpose.
You agree to indemnify, defend, and hold harmless the Company from any and all claims, liabilities, expenses, and damages, including reasonable attorneys' fees and costs, made by any third party related to: (a) your use or attempted use of the Site in violation of these Terms; (b) your violation of any law or rights of any third party; or (c) User Content, including without limitation any claim of infringement or misappropriation of intellectual property or other proprietary rights.
COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT
If you discover that someone else has posted material belonging to you via the Site without your permission, please note the following.
(a) Termination of Repeat Infringer Accounts. The Company respects the intellectual property rights of others and requests that the users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, the Company has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the Site who are repeat infringers. The Company may terminate access for participants or users who are found repeatedly to provide or post protected third-party content without necessary rights and permissions.
(b) DMCA Take-Down Notices. If you’re a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Site infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to the Company’s designated copyright agent at firstname.lastname@example.org:
The date of your notification;
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by a single notification, a representative list of such works at the Site;
A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and/or email address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(c) Counter-Notices. If you believe that your User Content that has been removed from the Site is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
Your physical or electronic signature; A description of the content that has been removed and the location at which the content appeared before it was removed;
A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in Texas and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Company copyright agent, the Company may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may (in the Company’s discretion) be reinstated on the Site in 10 to 14 business days or more after receipt of the counter-notice.
ONLINE CONTENT DISCLAIMER
Opinions, advice, statements, offers, or other information or content made available through the Site, but not directly by the Company, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content.
Listeners are not medical professionals and are not trained or certified to provide mental health guidance or diagnosis.
The Company does not guarantee the accuracy, completeness, or usefulness of any information on the Site and neither does the Company adopt nor endorse, nor is the Company responsible for, the accuracy or reliability of any opinion, advice, or statement made by parties other than the Company. The Company takes no responsibility and assumes no liability for any User Content that you or any other user or third-party posts or sends over the Site. Under no circumstances will the Company be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Site, or transmitted to users.
USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM
For contractual purposes, you (a) consent to receive emails via the email address you have submitted when you sign up on the Site; and (b) agree that all Terms, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
The Company may also use your email address to send you other messages, including information about the Company and Site and special offers. You may opt out of such email by changing your account settings or sending an email to email@example.com.
THE SITE AND SERVICE ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SITE AND SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR UPLOADING, DOWNLOADING, AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL SENT TO OR OBTAINED FROM THE SITE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
THE COMPANY IS NOT RESPONSIBLE FOR ANY PHYSICAL, PSYCHOLOGICAL, OR EMOTIONAL DAMAGE THAT MAY RESULT DUE TO INTERACTIONS BETWEEN SPEAKERS AND LISTENERS.
LIMITATION OF DAMAGES; RELEASE
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER CONTENT; (B) YOUR USE OR INABILITY TO USE THE SITE; (C) THE SITE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SITE AND SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH THE COMPANY OR ANY OTHER USER OF THE SITE (INCLUDING SPEAKERS AND LISTENERS), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), FRAUD, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL COMPANY’S LIABILITY TO YOU EXCEED $10. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.
The Company can amend these Terms at any time. It’s your responsibility to check the Site from time to time to view any such changes. If you continue to use the Site, you show your agreement to our revisions to these Terms. Any changes to these Terms (other than as set forth in this paragraph) or waiver of the Company’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of the Company. No purported waiver or modification of these Terms by the Company via telephonic or email communications shall be valid.
If any part of these Terms is held invalid or unenforceable, that portion of the Terms will be construed consistent with applicable law. The remaining portions will remain in full force and effect. Any failure on the part of the Company to enforce any provision of these Terms will not be considered a waiver of our right to enforce such provision. Our rights under these Terms will survive any termination of these Terms.
You agree that any legal action related to or arising out of your relationship with the Company must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
These Terms and your use of the Site and Service are governed by the federal laws of the United States of America and the laws of the State of Texas, without regard to conflict of law provisions.
You agree to resolve any claims relating to these Terms or the Site through final and binding arbitration. Any arbitration will be conducted by the American Arbitration Association (AAA) under its commercial arbitration rules. The arbitration will be held in Austin, Texas.
ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR THE COMPANY MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
If you attempt to bring any legal action against the Company based in any way on the Site you agree that, in the event you do not prevail or the Company does prevail, you will reimburse the Company for any costs and attorneys’ fees associated with its defense of the action.
APPLE APP STORE ADDITIONAL LICENSE TERMS
If the App is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms:
a) The parties acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the App.
b) If any of the terms and conditions in these Terms are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement, located at http://www.apple.com/legal/internet-services/itunes/appstore/dev/minterms/ (the “Apple EULA Terms”) or the App Store Terms and Conditions, located at http://www.apple.com/legal/internet-services/itunes/ca/terms.html (the “Apple App Store Terms”) as of the Effective Date, the terms and conditions of the Apple EULA Terms or Apple App Store Terms, as applicable, will apply to the extent of such inconsistency or conflict.
GOOGLE PLAY ADDITIONAL LICENSE TERMS
a) You acknowledge that Google is not responsible for providing support services for the App.
NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, California users are entitled to the following specific consumer rights notice: Current rates for the Service are here. You may contact us at firstname.lastname@example.org. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.