smallTalk Terms of Service

This agreement was last modified June 24, 2021.

Please read these Terms of Service (“Agreement” or “Terms of Service”) fully and carefully as they govern your access to and use of our Website(s) (https://www.smalltalk.tech), our App(s) (smallTalk), and our Products (smallTalk Connect, the smallTalk Egg) (collectively, our “Services”).

These Terms of Service constitute a binding agreement between Thrive Neuromedical, LLC (“us”, “we”, or “our”) and you (“you”), and you agree to be bound by this Agreement. This Agreement is effective when you access or use our Services in any manner. Please note, we take your privacy seriously. For our current Privacy Policy, please click here.

1) Acceptance of Terms of Service.

a) By using and/or registering for our Services in any manner, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on our Services by us, each of which may be updated from time to time without notice to you. While we may provide notice of modifications to these Terms of Service, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services constitutes acceptance of any changes or modifications and your use of the Services is subject to the Terms of Service then in effect at the time of such use. If you do not agree to be bound by these Terms of Service, please do not use or register for our Services.

b) Certain of our Services may be subject to additional terms and conditions specified by us; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by reference.

c) These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise. When using our services, you may also provide us with contact information for other individuals, such as your friend and family, to invite them to share recordings for your child. By submitting this information, you represent that you have the authority or consent of such individual(s) to do so, and to permit us to use that information in accordance with the Privacy Policy.

d) ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

2) Eligibility. You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not use our Services. You agree and acknowledge that the nature of the Services may require us to collect personally identifiable information of children in your care under age 18 in order to receive the full functionality of the Services, and you consent to such collection that is consistent with our Privacy Policy; provided, you also represent and warrant that you have all the relevant permissions and consents for grating this consent. The right to access or use the Services is revoked where these Terms of Service or the use of the Services is prohibited. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you. Further, the Services are offered only for your use, and not for the use or benefit of any third party.

3) Registration. Where applicable, to sign up for the Services, you must register for an account (an “Account”). You must provide accurate and complete information and keep your account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account credentials secure. You may not use another person’s Account or registration information for the Services without permission. You must notify us as soon as reasonably practicable of any breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your account.

4) License.

a) Subject to these Terms of Service, including Section 4(b), we grant you a limited, personal, revocable, non-exclusive, non-sublicensable and non-transferable license to, as applicable: (i) download, install and use the App on a device that you own or control to make use of the Services; and (ii) access and use the Services in accordance with these Terms of Service. This License is granted solely for purposes of authorizing you, individually, to use the Services in accordance with these Terms of Service and our Privacy Policy.

b) You shall not, either directly or indirectly: (i) redistribute, sell, lease, lend or rent the Services, or otherwise transfer any of the rights that you receive hereunder; (ii) make the Services available over a network where it could be owned or operated by different people at the same time; (iii) disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of, the Services; (iv) copy (except for back-up purposes), modify or create derivative works of the Services or any part thereof; (v) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services; (vi) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Services; (vii) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the Services; (viii) use any communications systems provided by the Services to send unauthorized and/or unsolicited commercial communications; (ix) use the Thrive Neuromedical, LLC or the smallTalk name, logo or trademark without our prior written consent; (x) use the Services to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches these Terms of Service; (xi) run any form of auto-responder or “spam” on the Services; and/or (xii) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site. You shall abide by all applicable local, state, national and international laws and regulation

5) Content.

a) Definition. For purposes of these Terms of Service, the term “content” includes, without limitation, information, data, text, photographs, videos, audio clips, software, algorithms, written posts and comments, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this agreement, “Content” also includes all user content (as defined below).

b) User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Services by you, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all user Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including user Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.

c) Restrictions and Notices. The Services may contain Content provided by us, our partners or our users that is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.

d) Use License. In submitting User Content through the Services, and consistent with our Privacy Policy, you hereby grant to us a worldwide, non-exclusive, perpetual, royalty-free, sublicensable and transferable license to use, process, store, modify, truncate, aggregate, reproduce, transfer, distribute, prepare derivate works of, display, perform, and otherwise fully exploit User Content in connection with the Services and our business, to include or successors’ and assigns’, including without limitation for promotion of our Services in any media formats and through any media channels (including, without limitation, third party websites). For the elimination of confusion, the foregoing license grants to us and our users shall not affect your other ownership or license rights in your User Content. You represent and warrant that you have all rights to grant such licenses to us without infringement on or otherwise violating the rights of any third parties, intellectual property, privacy or otherwise.

e) Availability of Content. We do not guarantee that any Content will be made available on or through the Services. We expressly reserve the right, but not the obligation, to remove edit or modify any Content in our sole discretion, at any time, without notice and for any reason, and to remove or block Content from our Services.

6) Intellectual Property Rights.

a) Ownership. You acknowledge that we retain all right, title, interest, ownership rights and Intellectual Property Rights in and to the Services. We reserve all rights not expressly granted herein to the Services. “Intellectual Property Rights” means any and all rights, titles and interests in and to any and all trade secrets, patents, copyrights, service marks, trademarks, feedbacks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic.

b) Materials and Marks. The: (i) content of our Services, including without limitation, the text, information, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive and features (the “Materials”); and (ii) the trademarks, service marks and logos contained therein (“Marks”), are our property and may be protected by applicable copyright or other intellectual property laws and treaties. Our logo(s) are our Marks. All other Marks used on the Services are the trademarks, service marks, or logos of their respective owners.

c) Use of Materials and Marks. The Materials and Marks on the Services are provided to you “as is” for personal use only. The Materials and Marks may not be used, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent.

7) Conduct Rules and Policies.

a) As a condition to your use of the Services, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services. You shall not (and shall not permit any third party to) take any action or upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Services, including without limitation any user content, that:

i) you know is false, misleading, untruthful or inaccurate;

ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, or is otherwise inappropriate as determined by us in our sole discretion;

iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”) or run any manner of auto-responder;

iv) contains software viruses or any other codes, files, or programs that are designed or intended to disrupt, damage, limit, bypass, circumvent or interfere with the proper function of any software, or hardware, or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;

v) impersonates any person or entity, including any of our employees or representatives; or includes anyone’s identification documents or sensitive financial information.

b) Consistent with our Privacy Policy, we reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.

8) Products. Descriptions, images, references, features, content, specifications, products, prices, and availability of any products made available through the Services are subject to change without notice. The inclusion of any products on the Services at a particular time does not imply or warrant that these products will be available at any time or the price will remain the same. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product; to honor or impose conditions on the honoring of, any coupon, coupon code, promotional code, or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product.

9) Payments and Billing.

a) Paid Services. Certain of our Services may be subject to payments now or in the future. Please note that any payment terms presented to you in the process of using or signing up for a Paid Services are deemed part of this Agreement.

b) Billing. When you purchase through our Services and use a credit card or other payment methods for your payment, we use third party payment processors to bill you through a payment account linked to your account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the payment processor in addition to this Agreement. We are not responsible for error by the payment processor. By using our Paid Services, you agree to pay, through the payment processors, all charges at the prices then in effect for the applicable Services in accordance with the applicable payment terms and you authorize us, through the payment processers, to charge your chosen payment provider. You agree to make payment using the selected payment method. We reserve the right to correct any errors or mistakes.

c) Payment Method. The terms of your payment will be based, in part, on your Payment Method and may be determined based on agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through your payment processor, do not receive payment from you, your account may be suspended.

d) Replacement Products. By submitting your credit card or other payment information to us and our payment processors, you acknowledge that if you request a replacement product, you are required to return your original product to us. You hereby accept responsibility for returning such original product to us within thirty (30) days’ of receipt of your replacement product. IF SUCH ORIGINAL PRODUCT IS NOT RETURNED, YOU ACKNOWLEDGE THAT WE MAY SUBMIT A CHARGE TO YOUR CREDIT CARD OR OTHER PAYMENT METHOD STORED WITH OUR PAYMENT PROCESSORS EQUAL TO THE THEN-CURRENT RATE FOR THE REPLACEMENT PRODUCT WITHOUT FURTHER AUTHORIZATION FROM YOU.

e) Current Information Required. If you desire to make purchases using or through the Services, you must provide current, complete and accurate information for your Billing Account. You must promptly notify us or our payment processor if your payment method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. If you fail to provide any of the foregoing information, you agree that we may continue charging you for any use of Paid Services under your Billing Account unless you have terminated your Paid Services as set forth above.

10) Termination.

a) We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, to: (i) discontinue or modify any aspect of the Services; and/or (ii) terminate these Terms of Service and your use of the Services, and shall not be liable to you or any third party for any of the foregoing.

b) If you wish to terminate your Account, you may do so by following the instructions on the applicable Service. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of user Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability. Please refer to our Privacy Policy to understand how we treat information after you have stopped using our Services.

11) Warranty Disclaimer.

a) We have no special relationship with or fiduciary duty to you. You acknowledge that We have no duty to take any action regarding (i) which users gain access to the Services; (ii) what Content you access via the Services; or (iii) how you may interpret or use the Content.

b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK AND YOU ACKNOWLEDGE AND AGREE THAT YOU DO NOT RELY ON THE SERVICES.

c) NOT MEDICAL ADVICE. The Services, Content and those products featured on our site are not medical and are not intended to be used as medical devices or as medical instruction.

d) Indemnification. You agree to defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from your user Content, violation of these Terms of Service, or infringement by you, or any third party using your account or identity in the Services, of any intellectual property or other right of any person or entity.

e) Limitation of Liability. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES FOR: (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); OR (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION). IN NO EVENT SHALL OUR LIABILITY, NOR OUR DIRECTORS EMPLOYEES, AGENTS, PARTNERS SUPPLIERS OR CONTENT PROVIDERS LIABILITY IN CONNECTION WITH THESE TERMS OF SERVICE (INCLUDING THE SERVICES) EXCEED THE GREATER OF THE TOTAL AMOUNT PAID BY YOU (IF ANY) IN CONNECTION WITH THE APPLICABLE SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (B) $500.00.

12) ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE READ AS THIS AFFECTS YOUR LEGAL RIGHTS.

a) Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES , AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION. HOWEVER, TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF OHIO. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.

b) YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Services must be filed within one (1) year after such claim of action arose or be forever banned.

13) Modification.

a) We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services at any time by sending or posting a notice on our or through the Services, via e-mail or by another appropriate means. We may also impose limits on certain features of the Services or restrict your access to parts or all of the Services without notice or liability.

14) Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services. You may submit feedback by emailing us at support@smalltalk.tech. You acknowledge and agree that all feedback will be the sole and exclusive property of us and you hereby irrevocably assign to us and agree to irrevocably assign to us all of your right, title, and interest in and to all feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain its intellectual property rights and other legal protections for the feedback.

15) Email. By registering or placing an order with us, you are consenting to receive emails from us regarding your order. Additionally, by registering or placing an order with us, you are consenting to receive commercial email from us. If you do not wish to receive commercial email from us, you may opt-out via the “unsubscribe” link provided in such email.

16) Miscellaneous.

a) Entire Agreement and Severability. These Terms of Service are the entire agreement between you and us with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

b) Assignment. Neither party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may, without the consent of the other party, assign this agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee will assume all rights and obligations under this agreement. Any permitted assignment of this agreement will be binding upon and enforceable by and against the parties’ successors and assigns, provided that any unauthorized assignment will be null and void and constitute a breach of this agreement.

c) Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.

d) No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.

You may contact us at the following address:

Thrive Neuromedical, LLC
1275 Kinnear Rd.
Columbus OH 43212
support@smalltalk.tech