Terms of Service
emocha Mobile Health Inc.
Last Updated: December 23, 2019
BY USING THE SERVICE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SERVICE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS. DEPENDING ON YOUR JURISDICTION, THIS SECTION MAY NOT APPLY TO YOU.
If You have entered into a separate executed agreement, order form, or legal contract for purchasing services or products from emocha (each a “Contract”), such Contract shall supersede these Terms. In the event of any conflict between these Terms and the Contract, the Contract will prevail. In cases where the Contract does not address specific provisions included in these Terms, these Terms will apply, supplementing the Contract.
We offer access and use of our video technology and patient engagement solution that allows participating medical professionals, health care staff, researchers, pharmacists and pharmaceutical personnel, clinical trials personnel, and other healthcare workers (collectively, “Providers”) to communicate with their clients and patients (collectively, “Participants”), to monitor medication adherence by the Participants and to provide other services such as documenting medication adherence, monitoring side effects, providing critical support, and related health care services, and to contract additional video-submitted-reviews and other emocha services via a secure Internet connection.
We are a Service that facilitates certain monitoring activities and communications between Providers and Participants, we are not a medical service provider, health insurance company, virtual clinic or pharmacy. Nor are we licensed to sell health insurance. You cannot fill prescriptions through the Service.
THE USE OF OUR SERVICE IS NOT APPROPRIATE FOR EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL OR MENTAL HEALTH EMERGENCY, OR IF AT ANY TIME YOU ARE CONCERNED ABOUT YOUR CARE OR TREATMENT, CALL 911 OR GO TO THE NEAREST OPEN CLINIC OR EMERGENCY ROOM.
While the Service allows Providers to engage with Participants, and may also provide access to certain general medical information, the Service itself cannot and is not intended to provide medical advice. Please contact your physician or other qualified health care provider with any questions regarding personal health, medical conditions, or related to the medication intake. Never disregard, avoid, or delay in obtaining medical advice from a doctor or other qualified health care provider because of something posted on the Site. If you have or suspect that you have a medical problem or condition, or that you are having a reaction to a medication you took, please contact a qualified health care professional immediately. THE CONTENT ON THE SITE IS NOT AND SHOULD NOT BE CONSIDERED MEDICAL ADVICE OR A SUBSTITUTE FOR INDIVIDUAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. YOU SHOULD ALWAYS TALK TO YOUR Health Care Provider(s) FOR DIAGNOSIS AND TREATMENT, INCLUDING INFORMATION REGARDING WHICH DRUGS, THERAPY, OR OTHER TREATMENT MAY BE APPROPRIATE FOR YOU. NONE OF THE INFORMATION ON THE SITE REPRESENTS OR WARRANTS THAT ANY PARTICULAR DRUG, THERAPY, MEDICATION, OR OTHER TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU. FURTHER, A HEALTH CARE PROVIDER’S ABILITY TO USE OUR SERVICE is not an endorsement or recommendation of that Health Care Provider by emocha.
To the extent medical advice is provided to you by a health care Provider through the Service, such medical advice is based on your personal health data as provided by you to the health care Provider and the local standards of care for your presenting symptoms or reactions to medications, based on the information you provide. The medical advice provided by your Health Care Provider is not under the control of emocha.
emocha can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on the Site and by providing a notice on the Service. We will ask for your express consent to the updated Terms where we are legally required to do so, and our notice to you will explain the reason for variation and how you can accept or reject the change. If you do not agree with any of the updated Terms, you must stop using the Service.
emocha may make changes to the Service at any time, without notice. If you object to any changes to the Service, your sole recourse will be to cease using it. Continued use of the Service following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Service as modified. We also reserve the right to discontinue the Service at any time without notice. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the Service.
If you are under a paid-subscription type service with us, in the event we change the price for the services which you have previously agreed to pay or if we substantially change the Service you are paying for, we will also notify you of such changes as contemplated in this section. If you do not agree with such change and you communicate this to us in accordance with the notification, we will not automatically renew your subscription even if you previously agreed to automatic renewal for payment.
Users of the Service
(a) Participant. If you are a Participant, you accept responsibility for yourself in the use of the Service. The Service is designed for your active engagement in your own care, however you acknowledge that your relationship regarding medication intake and monitoring services is with your Provider, and your obtaining services from the Provider is solely at your own risk and you assume full responsibility for all risk associated therewith, to the extent permitted by law. By using the Service, you agree to not hold emocha liable in any way for any malpractice or substandard treatment the Provider may render.
We do not confirm the credentials of Providers (including health care providers) using our Service and do not validate that they are in good standing with their respective licensure board(s). It is the Participant’s responsibility to separately confirm that a Provider is in good standing with his or her respective licensing board(s).
Additionally, you agree and understand that:
- You may be entering into a doctor/patient relationship with doctors and you are responsible for payments to your health care Provider for medical consultations or any other services you may receive, and for payments to your pharmacy for any prescriptions or medications.
- You agree to the entry of certain medical records, information and physician’s notes into the Service as determined by the Provider, and understand that all reasonable measures have been taken to safeguard your medical information, in accordance with federal HIPAA standards, but no Mobile App, computer or phone system is totally secure. You have a right to your medical records in accordance with applicable law, please consult your Provider for access to all your records.
- You agree that some of the medical disclosures or history you share with your Provider may be stored electronically in the Service and made available to the Provider who performs the medication adherence consultation for you.
- You acknowledge that you receive the health care services from the Provider and that emocha is not a health care Provider or physician.
- You acknowledge that it is the Provider, and not emocha, who prescribes medications or Drug Enforcement Agency controlled substances, and the Service does not guarantee that a prescription will be written for you.
- You agree and understand that you are subject to our Rules of Conduct, Content Submission policies, and Intellectual Property Infringement section, and you represent and warrant that you have read, understood and accept the provisions of those sections as applicable to you and your content.
- emocha does not require payment of charges or fees for your use of the Service.
(b) Provider. If you are a Provider, you accept responsibility for your Participants as well as yourself in the use of this Service. You are also responsible for the quality of the services you provide during your use of the Service and for complying with all applicable laws in connection with your use of the Service. For example, you are responsible for obtaining any and all Federal, State and local licenses and certifications which may be required to practice your profession when using this Service and maintaining malpractice and liability insurance in compliance with regulatory and local requirements. You are also responsible for complying with all applicable laws when communicating with Participants, including obtaining advance consent if recording any type of communications. You are responsible for obtaining Participant consent if required by law and complying with any and all privacy laws applicable to the use of this Service with your patients, including the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). emocha has established reasonable safeguards and procedures to protect the security of patient information, but you must also take steps to protect your privacy and confidentiality and that of your patients. emocha will enter into a HIPAA business associate agreement. We make no representations regarding your ability to bill third-party payors for the services you provide using the Service. You are responsible for complying with all applicable billing requirements for the services you provide.
Contractual Relationship. Minors.
By using the Service, you represent, acknowledge and agree that you are of age under the laws of your jurisdiction (usually 18+ years) and/or lawfully able to enter into contracts. If you are not of age (a “Minor”), you represent that you are using the Service with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Service and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby consent to the use of the Service by a Minor, agree to bind the Minor to these Terms and to fully indemnify and hold harmless emocha if the Minor breaches any of these Terms. If you are not legally able to enter into contracts, you may not use the Service at any time or in any manner or submit any information to emocha through the Service. To be able to use and access the Service, Providers contract separately with emocha and then invite Participants to join the Service.
Use of the Service.
The Service is a medication adherence monitoring service and related offerings that enable Participants to connect with Providers for purposes of engaging directly in their medical care. The Service is licensed, not sold, to you.
(a) Grant of a Limited License to Use the Service. The Service is protected by copyright laws throughout the world. Subject to your agreement, and continuing compliance with these Terms, and any other relevant emocha policies, emocha grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to use the Service and/or download, and use a copy of the Mobile App or client-software on a mobile device or computer that you own or control and to run such copy solely for your own individual, non-commercial purposes only. You agree not to use the Service for any other purpose.
(b) Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Service; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service except as expressly permitted by emocha; (iii) decompile, reverse engineer or disassemble the Service except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Service except as expressly permitted by emocha; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Service or unduly burdening or hindering the operation and/or functionality of any aspect of the Service; or (vi) attempt to gain unauthorized access to or impair any aspect of the Service or its related systems or networks.
(c) Account Registration. You need not register with emocha when you are visiting or viewing the public areas of the Site, or to browse any publicly accessible information in the Site. However, in order to access and use the features of the Service, you must register with emocha for an account and receive a password. For purposes of the Terms, a “Registered User” is a user of the Service (“User,” or “user”) who has registered an account with us (“Account”).
(d) Registration Data. In registering for the Service, you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are not a person barred from using the Service under the laws of any applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by Minors, and you will accept full responsibility for any unauthorized use of the Service by Minors. You may not share your Account or password with anyone, and you agree to (A) notify emocha immediately of any unauthorized use of your password or any other breach of security; and (B) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or emocha has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, emocha has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself or the Minor you represent, or register for an account on behalf of any group or entity unless you are authorized to bind such person, group or entity to these Terms. By registering another person, group or entity you hereby represent that you are authorized to do so. You agree that you shall not have more than one Account per platform at any given time. emocha reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Service if emocha has previously removed you, or if you have been previously banned from use of the Service, nor to designate other individuals to use an account on your behalf.
(e) Data Network and Internet Access. When you access the Service through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply. Downloading, installing or using certain services may be prohibited or restricted by your network provider and not all features of the Service may work with your network provider or device. The Service may require an internet connection to access internet-based features, authenticate the Service, or perform other functions. You acknowledge that you may be charged by your network service provider, and shall be responsible for any such charges, for internet access.
Our Video-Review Services
The Service allows Participants to upload videos relating to their treatment or other care for review by the Providers. Instead of doing the review themselves, as part of the Service, Providers may contract separately with emocha for additional services, such as our Video-Review-Services, by which emocha consultants (the “Reviewers”) observe and evaluate the videos uploaded by the Participants, and provide notes and feedback to Providers (“Video-Enabled Observation”). Our Video-Review-Services are subject to the additional terms of our Video-Review Services Agreement, which are hereby incorporated by reference if you contract such services.
If you contract Video-Review-Services, YOU ACKNOWLEDGE THE INHERENT LIMITATIONS OF VIDEO-ENABLED OBSERVATION OF PARTICIPANTS. YOU ACKNOWLEDGE THAT VIDEO-ENABLED OBSERVATION MAY BE INACCURATE DUE TO THE FACT THAT EVEN IF IDENTIFIED VERBALLY BY THE PARTICIPANT OR RECOGNIZED AUTOMATICALLY THROUGH THE USE OF TECHNOLOGY, (I) THE MEDICATION ACTUALLY CONSUMED BY THE PARTICIPANT MAY NOT BE THE MEDICATION REPORTED AS BEING CONSUMED OR ADMINISTERED, (II) THE MEDICATION MAY NOT BE CONSUMED BY OR ADMINISTERED TO THE PARTICIPANT IN THE QUANTITIES REPORTED, OR MAY NOT BE CONSUMED OR ADMINISTERED AT ALL, OR (III) THE PARTICIPANT IS NOT THE PERSON APPEARING ON THE VIDEO (COLLECTIVELY, “INACCURACIES”). FURTHERMORE, WHILE UTILIZING THE SERVICE, PARTICIPANTS MAY ENGAGE IN, OR CONVEY THOUGHTS REGARDING ACTIVITIES THAT MAY OR MAY NOT BE DETRIMENTAL TO THEIR HEALTH AND SAFETY OR THE HEALTH AND SAFETY OF OTHERS, WHETHER OR NOT VIEWED OR INTERPRETED AS SUCH BY THE REVIEWERS (COLLECTIVELY, “OUT OF SCOPE ACTIVITIES”), OR EXHIBIT CERTAIN CHARACTERISTICS OR APPEARANCE THAT A MEDICAL PROFESSIONAL MAY BE ABLE TO IDENTIFY THROUGH OBSERVATION OF THE VIDEO BUT WHICH MAY NOT BE IDENTIFIED BY THE REVIEWER AS CONSTITUTING A SYMPTOM, CONDITION, OR OTHER CONCERN. NOTWITHSTANDING ANYTHING STATED IN THESE TERMS TO THE CONTRARY, EMOCHA SHALL HAVE NO LIABILITY WITH RESPECT TO INACCURACIES AND/OR OUT OF SCOPE ACTIVITIES.
(a) Participant. emocha does not charge Participants directly for use of the Service. Please check with your Provider for any fees or charges which may be billed to you or your insurance company for use of the Service.
(b) Providers. You agree to pay all fees or charges that may apply to your Account based on any fees, charges, and billing terms between Participant and Provider and any fees of charges that may be applicable for use of the Service as contracted separately with you or as shown on the Site. You agree and consent to emocha’s use of third-party payment providers for billing and online payments. If you do not pay on time or if emocha cannot charge your payment method for any reason, emocha reserves the right to either suspend or terminate your access to the Service and Account and terminate these Terms. You are expressly agreeing that emocha is permitted to bill you for any applicable fees, any applicable tax and any other charges you may incur in connection with your use of the Service and the fees will be billed to the payment method designated on your registration with the Service and, if applicable, thereafter at regular intervals for the remainder of the term of these Terms (a “Subscription”). IF YOU CANCEL YOUR ACCOUNT AT ANY TIME, YOU WILL NOT RECEIVE ANY REFUND. However, if you cancel your Subscription, you will enjoy your subscription benefits until the expiration of the then-current subscription term for which you have paid, and your Subscription benefits will expire at the end of the then-current subscription term. If you have a balance due on any Account, you agree that emocha may charge such unpaid fees to your payment method or otherwise bill you for such unpaid fees.
Rules of Conduct.
In addition to your other promises and obligations, by using emocha’s Service you agree NOT to:
- Use your account or the Service to advertise, or solicit, or transmit any commercial advertisements, including chain letters, junk email or repetitive messages (spim and spam) to anyone;
- Use your account or Service to engage in, discuss or incite any illegal conduct or activity;
- Access another user’s account without permission;
- Use the Service in any manner that violates any applicable laws or regulations or is prohibited by these Terms;
- Collect or harvest any information about other users;
- Post, request, or link to obscene, threatening, embarrassing, hateful, racially or ethnically insulting, inciteful, deceptive, tortuous, defamatory, libelous, harassing, stalking or otherwise inappropriate or offensive material or conduct or that otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Discuss, promote, or depict any form of child sexuality, abuse, exploitation, or related topics that may be harmful to or threaten the security of a child or minor;
- Use features of the Service for anything other than their intended purpose;
- Interfere with or disable any security-related features of the Service, or any part thereof, including any services available on or through any Third Party Sites or through Providers;
- Decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any code or underlying ideas or algorithms of any part of the Service;
- Use any robot, spider, scraper or other automated means to access the Service;
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
- Post anything contrary to our public image, goodwill or reputation;
- Engage in any other prohibited conduct;
This list of prohibitions provides examples and is not complete or exclusive. emocha reserves the right to (i) terminate access to your Account, your ability to use the Service and (ii) refuse, delete or remove any Content Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that emocha determines is inappropriate or disruptive to this Service or to any other user of this Service. EMOCHA MAY REPORT TO LAW ENFORCEMENT AUTHORITIES ANY ACTIONS THAT MAY BE ILLEGAL, AND ANY REPORTS IT RECEIVES OF SUCH CONDUCT. WHEN LEGALLY REQUIRED OR AT EMOCHA’S DISCRETION, EMOCHA WILL COOPERATE WITH LAW ENFORCEMENT AGENCIES IN ANY INVESTIGATION OF ALLEGED ILLEGAL ACTIVITY THROUGH THE USE OF THIS SERVICE.
You are responsible for the videos, information, opinions, messages, comments, photos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available (“Make Available”) on or through the Service (each a “Content Submission”). You may not Make Available on this Service any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any such right protects any material is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Content Submission that you make. You have full responsibility for each Content Submission you make, including its legality, reliability and appropriateness.
You acknowledge and agree that emocha may compile and aggregate Content Submissions and to the extent necessary, you hereby grant emocha a royalty-free, nonexclusive, irrevocable, right and license (with the right to sublicense through multiple tiers) to develop Aggregated Data from your use of the Service. “Aggregated Data” means emocha’s combination in an aggregated and de-identified basis of Content Submissions (included any Protected Health Information therein) that are received, gathered and/or aggregated from or on behalf of Providers or Participants, to permit data analyses for the purposes of quality assurance and control of the Service, marketing, improvement of emocha’s products and services, for benchmarking purposes, to provide customized services or technologies, and/or for any other lawful purpose by emocha, its affiliates, licensors, partners and designated agents (on a non-attributed basis).
When you provide Content Submissions you agree that those Content Submissions shall not be in violation of the Rules of Conduct in section 9. Without prejudice to the Video-Review Services described in Section 7, the prohibitions in Section 9 do not require emocha to monitor, police or remove any Content Submissions or other information submitted by you or any other user. Notwithstanding the foregoing, emocha reserves the right to remove any content or Content Submission from its Service at any time and for any or no cause.
If you send or transmit any communications, comments, questions, suggestions, or related materials to emocha, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Service, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and emocha is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that emocha is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Intellectual Property Ownership
The Service and all proprietary and intellectual property rights therein are and shall remain emocha’s property or the property of emocha’s licensors. Neither these Terms nor your use of the Service convey or grant to you any rights: (i) in or related to the Service except for the limited license granted above; or (ii) to use or reference in any manner emocha’s company names, logos, product and service names, trademarks or services marks or those of emocha’s licensors. There are no licenses by implication. If you breach any of these Terms, the above license will terminate automatically and you must stop using the Service and immediately destroy any materials downloaded or printed from the Service.
Intellectual Property Infringement
We respect the intellectual property rights of others and encourage You to do the same. Accordingly, We have a policy of removing Content Submissions that violate intellectual property rights of others, suspending access to the Service (or any portion thereof) to any user who uses the Service in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Service in violation of someone’s intellectual property rights.
Submitting a DMCA infringement notification
Pursuant to Title 17 of the United States Code, Section 512, We have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of the Service, please provide written notice to Our Agent for notice of claims of infringement: Attn: emocha DMCA Agent. By Email: firstname.lastname@example.org By Mail: 916 North Charles Street, Baltimore, MD 21201.
To be sure the matter is handled immediately, Your written notice must:
- Contain Your physical or electronic signature;
- Identify the copyrighted work or other intellectual property alleged to have been infringed;
- Identify the allegedly infringing material in a sufficiently precise manner to allow Us to locate that material;
- Contain adequate information by which We can contact You (including postal address, telephone number, and e-mail address);
- Contain a statement that You have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
- Contain a statement that the information in the written notice is accurate; and
- Contain statement, under penalty of perjury, that You are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, You may provide Our Agent with a written counter-notification that includes the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which We may be located, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Infringers
We reserve the right, in Our sole discretion, to terminate the account or access of any user of the Service who is the subject of repeated DMCA or other infringement notifications.
Term and Termination
The Terms commence on the date when you start using the Service and remain in full force and effect while you use the Service, unless terminated earlier in accordance with the Terms. If you want to terminate the Service, you may do so by (a) notifying emocha at any time; and/or (b) closing your Account. We reserve the right to terminate or suspend your account or access to the Service at any time and for any reason. It is within our sole discretion and determination to terminate your Account for what we deem to be a violation or breach of these Terms. In the event that we terminate or suspend your Account, you will have no further access to your Account or anything associated with it. Termination of the Service includes (i) automatic termination of all licenses and you must immediately destroy any downloaded or printed materials (including software); and (ii) deletion of your password and related information, files and content associated with or inside your Account (or any part thereof), including Content Submissions, except to the extent of any surviving licenses or applicable record retention requirements. Please contact your Provider for copies of any records related to your relationship with your Provider. emocha will not have any liability whatsoever to you for any suspension or termination, including for deletion of Content Submissions. All provisions of the Terms, which by their nature should survive, shall survive termination of the Service, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
You may close your Account by using the feature provided in the Service or, in the alternative, by emailing us at email@example.com. We will proceed to close your Account and send you an email confirmation.
Links to Third-Party Sites.
Disclaimer of Warranties.
(a) Generally. You use the Service at your own risk. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND TO THE FULLEST EXTENT PERMITTED BY LAW, EMOCHA (ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSOCIATES, PARTNERS, LICENSORS AND SUPPLIERS) DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. EMOCHA DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
(b) Disclaimer of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE EMOCHA SERVICE, INCLUDING PROVIDERS. YOU UNDERSTAND THAT EMOCHA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE.
(c) Special Disclaimer regarding the Service and Video-Review Services.
emocha is not a health care Provider. The Service is designed to support, not replace or intervene in, the relationship that exists between you and your Provider. The Service is a tool, and any information contained on the Site is not to be construed as medical recommendation, or as professional advice. Always seek the advice of your doctor or other qualified healthcare provider. Never disregard medical advice or delay seeking it because of something you have read on the Site. While providing Video-Review Services, emocha is not responsible for identifying potentially harmful activities the Participants may be engaging in, or for Observation Inaccuracies.
Limitation of Liability.
The limitations on liability set forth in this Section will not apply to any claims, losses, liabilities, or damages arising out of or relating to (i) any data breach, (ii) improper use, access or disclosure of your personal or confidential information, (iii) improper use, access or disclosure of protected health information (as defined in HIPAA), or (iv) any other violation of HIPAA.
EMOCHA SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, REMOTE OR OTHER SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (HOWEVER SUCH LOSSES ARE QUALIFIED), ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EMOCHA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SUBJECT TO THE EXCLUSIONS EXPRESSLY SET FORTH IN THIS SECTION, IN ALL EVENTS, EMOCHA SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO EMOCHA IN ACCORDANCE WITH THESE TERMS IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO EMOCHA DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND EMOCHA’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH EMOCHA IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EMOCHA AND YOU. To the extent that emocha may not, as a matter of applicable law, disclaim any warranty or limit its liability as set forth in these Terms, the scope of such warranty, and the extent of emocha’s liability, shall be the minimum permitted under such applicable law.
You agree to indemnify and hold emocha, its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, the “emocha Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content Submissions; (b) your use of, or inability to use, the Service; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. emocha reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with emocha in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Service.
Interactions between Users.
You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service. emocha reserves the right, but has no obligation, to become involved in any way with these disputes. You will fully cooperate with emocha to investigate any suspected unlawful, fraudulent or improper activity, including, but not limited to, granting emocha access to any password-protected portions of your Account.
If you have a dispute with one or more Users (including Providers), you release emocha (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
emocha controls and operates the Service from its headquarters in the United States of America and it may not be appropriate or available for use in other locations. If you use the Service outside the United States of America, you are responsible for following applicable local laws.
Special Provisions for Mobile Applications.
(a) App Stores. You acknowledge and agree that the availability of the Mobile App and the Service is dependent on the third party from whom you received the Mobile App license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and Company and not with the App Store. Company, not the App Store, is solely responsible for Service, including the Mobile App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Mobile App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Service, including the Mobile App. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Service, including the Mobile App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
(b) Additional License Terms for use of the Service in conjunction with the Apple App Store. With respect to any Mobile App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Stored Sourced Application (i) on an Apple-branded products that runs the iOS (Apple’s proprietary operating system), and (ii) as permitted by the “Usage Rules” set forth in the Apple Terms of Service. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Terms are concluded between you and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
- You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
(c) Additional License Terms for use of the Service in conjunction with the Android App Store. The following additional terms and conditions apply with respect to any Mobile App that Company provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and Company only, and not with Google, Inc. (“Google”).
- Your use of Company’s Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. Company, and not Google, are solely responsible for Company’s Android App and the services and Content available thereon. Google has no obligation or liability to you with respect to Company’s Android App or these Terms.
You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Company’s Android App.
Dispute Resolution and Arbitration; Class Action Waiver
Please read this carefully if you are a resident of the United States of America. It affects your rights.
(a) Disputes and Applicable Law. These Terms will be subject to and construed in accordance with the laws of the State of Maryland, United States of America excluding its rules regarding conflicts of law. You agree that any claim or dispute you may have against emocha must be resolved exclusively by a state or federal court located in the State of Maryland, except as otherwise agreed by the parties or as described in the Arbitration subsection below. You agree to submit to the personal jurisdiction of the courts located in Baltimore, Maryland for the purpose of litigating all such claims or disputes.
(b) Arbitration. You agree that emocha may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event emocha elects arbitration, you hereby agree to move any claims to the exclusive jurisdiction of an arbitration procedure, which shall be initiated through an established alternative dispute resolution provider (“ADR”) chosen by emocha. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties, in which case the location of the arbitration shall be Baltimore, Maryland; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Arbitration expressly excludes claims for injunctive or other equitable relief.
(c) Waiver of Jury Trial. YOU HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. In the event any litigation should arise between you and emocha in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(d) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
The communications between you and emocha use electronic means, whether you visit the emocha Site or send emocha e-mails, or use the Service or whether emocha posts notices on the Site or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from emocha in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that emocha provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. Where emocha requires that you provide an e-mail address; you are responsible for providing emocha with your most current e-mail address. In the event that the last e-mail address you provided to emocha is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, emocha’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Service is provided by emocha Mobile Health Inc. If you have a question or complaint regarding the Service, please contact emocha’s Customer Service at firstname.lastname@example.org, Attention Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
If you have any questions about these Terms or otherwise need to contact emocha for any reason, you can reach us at emocha Mobile Health Inc, 916 N. Charles Street, 2nd Floor – Suite 200, Baltimore, MD, 21201 with a copy to email@example.com or call us at +1 (410) 864-8587.