Terms & Conditions
Effective October 29, 2018
To Be Honest (the “Application”) is a mobile application owned and operated by Shepardson, Stern & Kaminsky, LLC (SS+K), a Delaware limited liability company (“Company” or “we,” “our” or “us”). These terms and conditions (“Terms and Conditions”) govern the Company’s relationship with you when you use the Application, website (“site”) and any and all products or services available on or through the Application or otherwise provided by Company (collectively, the “services”). By using or accessing the Application or services, whether manually or through automated or any other means, you agree to these Terms and Conditions. These Terms and Conditions apply to anyone who uses the To Be Honest Application or services (collectively, “users” or “you”). If you do not consent to be bound by all of these Terms and Conditions, or if you do not consent to the Privacy Policy, you cannot use the To Be Honest Application or services. Please contact us if you have any questions regarding these Terms and Conditions.
Access to the To Be Honest Application or services from territories where the Application or services are illegal is strictly prohibited. Users are responsible for complying with all local rules, laws, and regulations regarding their use of the Application or services.
Any personal information you provide to To Be Honest when using the Application or services will be used by To Be Honest in accordance with its Privacy Policy. Your use of the To Be Honest Application or services constitutes your agreement to our Privacy Policy. Company maintains reasonable safeguards to secure the To Be Honest Application, services, and the information we collect. However, though Company strives to protect your information, it cannot ensure or warrant the security of any information you transmit to us, and you do so at your own risk. In the event of a breach of the security of your personal information, Company will notify you as necessary using the contact information you provided to us when you registered, or other appropriate means.
To Be Honest was created to give users a straightforward way to set expectations, explore sexual boundaries, raise red flags, and navigate the sometimes uncomfortable conversations around consent in their daily texts.
To be eligible to use To Be Honest, you represent that (1) you are at least 18 years of age and/or otherwise capable of consenting to sexual relations; (2) you and the person with whom you are communicating while using the Application are at least 18 years of age and/or otherwise capable of consenting to sexual relations; (3) you are registered with us; and (4) you have not been previously restricted, suspended or terminated by us.
Availability
Company does not accept responsibility whatsoever for the unavailability of the Application or services and any failure due to the Application or services being unavailable. Company will not be responsible for any support or maintenance for the Application.
In order to use the Application, you are required to have a compatible mobile telephone or handheld device, and internet access with the necessary minimum specifications. The version of the Application software may be upgraded from time to time to add support for new functions and services. You accept responsibility for any such charges from your mobile provider or any other third parties due to your use of the Application or services.
Your Warranties
You represent and warrant that: (i) you have the legal right and capacity to enter into these Terms and Conditions in your jurisdiction and to comply with them; (ii) all information you provide to us is true, accurate, complete and current; and (iii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms and Conditions.
Conditions of Use of Application
As a condition of your use of the Application or services, you promise to: (i) Use the Application and services in compliance with all laws, regulations, ordinances, directives, court orders and these Terms and Conditions applicable to your use of the Application or services; (ii) Use the Application and services so as not to damage, disable, overburden or impair the Application or services, our networks or systems or not to interfere with any others’ legal rights or use or enjoyment of the Application and services; and (iii) Not engage in, or encourage, promote, facilitate or instruct others to engage in, activities which, in our judgment and discretion: (1) are illegal; (2) result in the infringement of the intellectual property rights of others or libel or defamation of another person; or (3) harvest or otherwise collect information about others (such as e-mail addresses or other personally identifiable information) without their consent.
Electronic Communications
When you visit the Application, use the services or send emails to Company, you are communicating with us electronically. You consent to receive communications from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide you electronically satisfy any legal requirement that such communications be in writing.
Ownership of the Application, Application Information and Services and License
All trademarks, copyright, database rights and other intellectual property rights of any nature in the To Be Honest Application or services together with the underlying software code are owned either directly by Company or by Company’s licensors. You will not, nor allow third parties on your behalf to (i) make and distribute copies of the Application (ii) attempt to copy, reproduce, alter, modify, reverse engineer, disassemble, decompile, transfer, exchange or translate the Application; or (iii) create derivative works of the Application of any kind whatsoever.
As long as you comply with these Terms and Conditions, we grant you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license (“License”) to use the Application and services for your personal, non-commercial use only. The License does not give you any ownership of, or any other intellectual property interest in the Application or services and you cannot otherwise use the Application or services without our express prior written permission. All rights not expressly granted to you are reserved by us and our licensors and other third parties. Any unauthorized use of the Application or services for any purpose is prohibited.
Prohibited Activities
You warrant that you will not: (i) in any way make commercial or other unauthorized use, by publication, re-transmission, distribution, performance, caching, aggregation or otherwise, of material obtained through the Application or services, except as permitted by the Copyright Act or other law or as expressly permitted in writing by these Terms and Conditions; (ii) disrupt, overwhelm, attack, modify, reverse engineer or interfere with the Application or its associated software, hardware and/or servers in any way, and you agree not to impede or interfere with others’ use of the Application or services; or (iii) attempt to gain unauthorized access to service provider’s servers by any means—including, without limitation, by using administrator passwords or by masquerading as an administrator while using the Application or services or otherwise.
"User Communications" means any and all requests, questions, suggestions, all content of any e-mails and/or the contact form, materials (including without limitation text, images, audio material, video material and audio-visual material) that you submit to the Application, for whatever purpose. The Application may provide you and other users with an opportunity to participate in blogs, web communities and other messages, comment and communication features and may provide you with the opportunity to submit, post, e-mail, display, transmit or otherwise make available comments, reviews, links, materials, ideas, opinions, messages, white-papers and other content and information via the Application (each, a "Posting", and collectively, "Postings"). Subject to applicable laws, you grant to Company, without the payment of any monies and/or other compensation of any kind whatsoever, an immediate, worldwide, perpetual, irrevocable, non-exclusive, royalty-free license to sell, transfer, use, disseminate, reproduce, adapt, publish, assign, translate and distribute your User Communications and/or Postings in any existing or future media or any other forum. You also grant to Company, without the payment of any monies and/or other compensation of any kind whatsoever, the right to sublicense these rights, and the right to bring an action for infringement of these rights (including your User Communications and/or Postings). Your User Communications and Postings must not be illegal or unlawful, must not infringe any third party's legal rights, and must not be capable of giving rise to legal action whether against you or Company and/or any third party. You must not submit any User Communications or Postings to the Application that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint. Company, in its sole discretion, reserves the right without notice to you, for any reason or for no reason whatsoever, to edit or remove any material submitted to the Application, or stored on Company's servers, or hosted or published upon the Application. Notwithstanding the foregoing, Company does not undertake to monitor the submission of any content to, or the publication of such content on, the Application. You understand and agree that all of your User Communications and Postings are your sole responsibility which means, among other things, that you are solely and entirely responsible for the consequences of all of your User Communications and Postings that you submit, upload, post, e-mail, display, transmit or otherwise make available. Your User Communications and Postings do not necessarily reflect the views of Company, its affiliates, its owners, members, directors, employees, consultants, contractors and/or, clients, and you understand that by continuing to access, view and use the Application, you may be exposed to other people's user communications and/or Postings that could be offensive, indecent or objectionable and, as such, Company does not guarantee the accuracy, integrity, quality or content of any user communications or Postings. Under no circumstances shall Company be liable in any way for user communications or Postings, including, errors or omissions in any user communications or Postings, or any loss or damage of any kind incurred as a result of any user communications or Postings submitted, uploaded, posted, e-mailed, displayed, transmitted or otherwise made available.
You also represent, warrant and covenant that: (a) you own all User Communications and/or Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in these Terms and Conditions and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, posting, e-mailing, displaying, transmission and/or making available of user communications and/or Postings does not violate these Terms and Conditions, any rights of any other party or entity, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; and (c) you have the legal right and capability to enter into these Terms and Conditions and perform and comply with all of its terms and conditions.
COMPANY PROVIDES THE WEBSITES AND APPS ONLY ON AN "AS IS" AND AS AVAILABLE BASIS. YOU USE THE WEBSITES AND APPS AT YOUR SOLE RISK. COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND COVENANTS OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW IN THE JURISDICTION OR TERRITORY IN WHICH YOU USE THE WEBSITES AND APPS. IN PARTICULAR, COMPANY DOES NOT WARRANT THAT THE WEBSITES AND APPS WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS, OR THAT IT WILL BE UNINTERRUPTED, TIMELY, SECURE, RELIABLE OR ERROR-FREE, OR THAT THE RESULTS OBTAINED FROM WEBSITES AND APPS USE WILL BE ACCURATE OR RELIABLE, OR THAT ANY ERRORS IN THE WEBSITES AND APPS WILL BE CORRECTED, OR THAT THE WEBSITES AND APPS ARE FREE OF VIRUSES OR OTHER MALWARE OR HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY COMPANY OR ANY REPRESENTATIVE SHALL CREATE ANY REPRESENTATION OR WARRANTY.
THE COMPANY WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, REGARDLESS OF ANY NOTICE THEREOF, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, RESULTING DIRECTLY OR INDIRECTLY FROM THE USE OF OR THE INABILITY TO USE THE WEBSITES AND APPS AND/OR WEBSITES CONTENT. THESE LIMITATIONS OF LIABILITY APPLY EVEN IF THERE HAS BEEN EXPRESSED PRIOR NOTICE REGARDING POTENTIAL LOSS.
SUBJECT TO THE TERMS HEREIN, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE COMPANY FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO $1.00. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to indemnify, defend, and hold Company, its affiliated companies, contractors, employees, agents, representatives and its third party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses as incurred, arising out of your use, attempted use, or conduct with the Application; your violation of these Terms and Conditions; or your infringement or violation of any rights of another person or entity. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to fully cooperate with Company’s defense of these claims. Company will use commercially reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
Company has the right to terminate and/or suspend your ability to access the Application and services or any portion thereof, for any or no reason, with or without notice. Upon any termination, any and all rights and licenses granted to you herein shall terminate and you must cease all use of the Application and services. All provisions of the terms which by their nature should survive, shall survive termination of services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
The information provided on the Application and services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We control and operate the Application and services from offices located in the United States. We make no representations or warranties that the information, products or services contained on the Application or services are appropriate for use or access in other locations. Anyone using or accessing the Application or services from other locations does so on their own initiative and is responsible for compliance with United States and local laws regarding online conduct and acceptable content, if and to the extent such laws are applicable. We reserve the right to limit the availability of the Application or services and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.
The site is hosted in the United States and is intended for users located in the United States. If you are a non-United States user of the Application or services, by visiting or using the Application or services and/or providing Company with any User Communications specifically or content generally, you agree to comply with all federal and state United States laws governing the Application, the services, online conduct and acceptable content and User Communications. You further agree to comply with all applicable laws regarding the transmission of data exported from the United States or the country in which you reside.
THESE TERMS AND CONDITIONS AND THE INTERPRETATION OF THESE TERMS AND CONDITIONS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE APPLICATION OR SERVICES, THE USE OR ACCESS THEREOF, OR THESE TERMS AND CONDITIONS MUST BE IN THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK AND YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS LOCATED IN NEW YORK FOR ANY SUCH LEGAL PROCEEDING. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THE APPLICATION OR SERVICES MUST BE COMMENCED WITHIN SIX MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES, OR ANY SUCH PURPORTED CLAIM OR CAUSE OF ACTION WILL BE FOREVER BARRED. ANY CLAIMS BROUGHT BY YOU MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
We reserve the right to modify or add to these Terms and Conditions or any additional Terms and Conditions, at any time without prior notice (“Updated Terms and Conditions”). In Company’s sole discretion, we may unilaterally amend or modify these Terms and Conditions or any other documents referenced herein at any time by posting on the site. The date of the most recent revision will appear at the top of this page. Company encourages you to review these Terms and Conditions periodically for any updates or changes. Continued use of the Application or services constitutes acceptance of any modified Terms and Conditions. You agree that we may notify you of the Updated Terms and Conditions by posting them on the Application and site, and that your use of the Application or services after we have posted the Updated Terms and Conditions or other indication of consent to the Updated Terms and Conditions constitutes your agreement to the Updated Terms and Conditions. Therefore, you should review these Terms and Conditions and any additional Terms and Conditions before using the Application or services. The Updated Terms and Conditions will be effective as of the time of posting, or such later date as may be specified in the Updated Terms and Conditions, and will apply to your use of the Application and services from that point forward.
If we fail to act with respect to any breach of these Terms and Conditions by you or others, that does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. We shall not be deemed to have waived any of these Terms and Conditions unless we do so in a writing that is signed by one of our duly authorized officers. We may assign our rights and duties under these Terms and Conditions to any party at any time without any notice to you. You may not assign these Terms and Conditions to anyone. If any provision of these Terms and Conditions will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and Conditions and will not affect the validity and enforceability of any remaining provisions. You agree that these Terms and Conditions will not be construed against us by virtue of our having drafted them. The headings used throughout these Terms and Conditions are solely for convenience of reference and are not to be used as an aid in the interpretation of these terms. These Terms and Conditions make up the entire agreement between you and Company regarding the site and supersede any prior agreements. You will not assign or transfer any of your rights or responsibilities under these Terms and Conditions to anyone without Company’s express written permission. Company may, at any time, assign our rights or delegate our obligations hereunder without notice to you in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise. Nothing in these Terms and Conditions shall prevent Company from complying with the law.