Last Updated: July 2021
By continuing to use the Service, you agree as follows:
- You are at least 18 years old or have been legally emancipated;
- You understand and intend that this Agreement is a legally binding agreement and the equivalent of a signed, written contract;
If You do not agree with and accept the Terms, please discontinue all further use of the Service and immediately delete all associated files, if any, from Your device. Once you agree to the use of the App you also agree to the sharing of the data in the App with your employer.
ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE DISPUTE RESOLUTION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND EMOCHA WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU CAN OPT OUT OF THE AGREEMENT TO ARBITRATE BY CONTACTING INFO@EMOCHA.COM WITHIN 30 DAYS OF ACCEPTING THESE TERMS.
If You or your employer organization 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.
What is the Service?
We offer access and use of our video technology and patient engagement solution that allows participating employers and employees to work together to maintain workplace safety during the COVID-19 pandemic. The Service allows Employees to record and submit videos to their Employer(s), which Employers can then review to monitor the Employees’ medical symptoms related to the current pandemic as identified by the Centers for Disease Control and Prevention (“CDC”) .
Certain features of the Service may be subject to additional terms, which will be provided to you if you choose to use such features. Use of any features that are subject to additional terms constitutes an agreement to be bound by the additional terms. In the event that additional terms presented to you conflict with these Terms, the additional terms will govern.
The spread of the COVID-19 virus has been declared an “international pandemic” by the World Health Organization (WHO). We have augmented our service so that it can be used to help prevent and reduce transmission of Covid-19 through symptoms monitoring. Examples of such uses of the Service include:
- to allow for individuals identified by the employer, including without limitation occupational health staff, human resources personnel, and/or management personnel (collectively, “Supervisors”) charged with determining if/when it is safe for an Employee to return to the workplace, to use the Service to screen their staff, including essential employees potentially exposed to Covid-19, for symptoms of Covid-19;
- to allow for individuals identified by the employer, including without limitation occupational health staff, human resources personnel, and/or management personnel (collectively, “Supervisors”) charged with determining if/when it is safe for an Employee to return to the workplace, to use the Service to review employee Covid-19 testing and employee-submitted vaccination data.
Employees submitting information to their Supervisor through emocha for purposes of the Supervisor’s review and evaluation are referred to in these Terms as “Employees”. Supervisors and Employees are collectively referred to as “Users.”
The Service facilitates certain monitoring activities and communications between Supervisors and Employees. emocha is 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 THE SERVICE IS NOT APPROPRIATE FOR EMERGENCIES. IF YOU THINK YOU ARE EXPERIENCING 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.
The Service 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 or medical conditions. Never disregard, avoid, or delay in obtaining medical advice from a doctor or other qualified health care provider because of something posted on the Service. 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 SERVICE 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. NONE OF THE INFORMATION PRESENTED VIA THE SERVICE REPRESENTS OR WARRANTS THAT A PARTICULAR EMPLOYEE IS SAFE TO RETURN TO WORK.
Your Supervisor will make decisions based on your health data that you submit to them via the App. If you provide incorrect or misleading information, this may affect your Supervisor’s ability to make appropriate employment decisions. You hereby agree to submit only true health data via the App in order to enable your Supervisor to protect your health and the health of other employees. emocha is not responsible for inaccuracies in the information you provide.
What happens if emocha modifies the Service?
How does emocha protect my privacy?
What are my responsibilities as an Employee?
If you are an Employee, the Service is designed to help you be more actively engaged in your own safety and help you share information with your Supervisor that your employer requests. As such, you are responsible for complying with these Terms when using the Services and for any activity that takes place on account. You hereby agree that all information submitted by you via the App is truthful and, to the best of your knowledge, accurate.
Additionally, you agree and understand that:
- You have addressed your questions on use of the App with emocha, your Supervisor, and/or your employer.
- You agree that some of the medical disclosures or history you share with us may be stored electronically in the Service and will be made available to your Supervisor and/or employer.
- You acknowledge that emocha is not a health care provider or physician.
- emocha does not require payment of charges or fees for your use of the Service.
What are my responsibilities as a Supervisor?
If you are a Supervisor, you are responsible for complying with all applicable laws in connection with your use of the Service. For example, you are responsible for protecting Employee information in accordance with any and all privacy laws applicable to the use of this Service. emocha has established reasonable safeguards and procedures to protect the security of your and your Employees’ information, but you must also take steps to protect your privacy and confidentiality and that of yourself and your Employees.
The App may allow you to manually edit certain Employee information, such as color-coding associated with an Employee’s badge. emocha is not responsible for any such changes that you make within the App or any decisions made based on that change. Further, you are responsible for making a final determination regarding whether a particular Employee is safe to enter the workplace, and emocha cannot be held responsible for your decision or the effects of that decision.
Are minors allowed to use the Service?
No. By using the Service, you represent, acknowledge and agree that you are at least 18 years old and legally allowed to enter into contracts. emocha does not knowingly collect, use, or store information relating to children under the age of 13 (a “Minor”). If you are not legally allowed to enter into contracts or are under 13, you may not use the Service at any time or in any manner or submit any information to emocha through the Service. If you know of anyone under the age of 13 using the Service, please notify emocha immediately at firstname.lastname@example.org.
Who owns the Service?
emocha owns the Service, which is protected by copyright laws throughout the world. Subject to your 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 for the purposes described in these Terms. You agree not to use the Service for any other purpose.
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.
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.
How do I create an account?
You do not need to 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”).
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 not to create or use 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.
Computer Equipment, Data Network, and Internet Access
You are responsible for obtaining, installing, maintaining and operating all software, hardware or other equipment (collectively, “Systems”) necessary for you to access and use the Service. This includes, without limitation, obtaining Internet services, using up to date web-browsers and the best commercially available encryption, antivirus, anti-spyware, and internet security software. You are responsible for the data security of the Systems used to access the Service and for the transmission and receipt of information using such Systems. We are not responsible for any errors or problems that arise from the malfunction or failure of the Internet or your Systems.
THERE ARE ALWAYS CERTAIN SECURITY AND ACCESS AVAILABILITY RISKS ASSOCIATED WITH USING OPEN NETWORKS SUCH AS THE INTERNET, AND YOU EXPRESSLY ASSUME SUCH RISKS.
When you access the Service through a mobile network, your network’s messaging, data, roaming and/or other rates and fees may 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 emocha is not responsible for paying any fees associated with Internet access, mobile data, messaging, etc.
Who reviews Employee data and video submissions?
The Service allows Employees to upload data and videos relating to their treatment or other care for review by the Supervisors, including the employer organization. Before a Supervisor views the data you submit, emocha consultants (the “Reviewers”) will observe and evaluate the information Employees submit and provide notes and feedback to Supervisors or the employer organization.
PLEASE NOTE: REVIEWERS ARE TECHNICAL STAFF ONLY, THEY ARE NOT HEALTHCARE PROFESSIONALS NOR ARE THEY TRAINED OR CERTIFIED HEALTHCARE PERSONNEL.
AS A USER OF THE APP, YOU ACKNOWLEDGE THE INHERENT LIMITATIONS OF THE ABOVE VIDEO REVIEW. FOR EXAMPLE, VIDEOS MAY BE INACCURATE DUE TO THE FACT THAT EVEN IF IDENTIFIED VERBALLY BY THE EMPLOYEE OR RECOGNIZED AUTOMATICALLY THROUGH THE USE OF TECHNOLOGY, (I) WHEN REVIEWING THE MEASUREMENT OF BODY TEMPERATURE USING A THERMOMETER, THE READING DISPLAYED OR CONVEYED VERBALLY BY THE EMPLOYEE MAY BE INCORRECT, OR (II) THE EMPLOYEE IS NOT THE PERSON APPEARING ON THE VIDEO (COLLECTIVELY, “INACCURACIES”).
FURTHERMORE, WHILE UTILIZING THE SERVICE, EMPLOYEES 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, 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. FINALLY, WHILE UTILIZING THE SERVICE AN EMPLOYEE MAY ENGAGE IN BEHAVIOR THAT IS ACTIONABLE BY THEIR EMPLOYER THAT A THE SUPERVISOR OR EMPLOYER MAY BE ABLE TO IDENTIFY THROUGH OBSERVATION BUT WHICH MAY NOT BE IDENTIFIED BY THE REVIEWER. (COLLECTIVELY, OUT OF SCOPE ACTIVITIES). NOTWITHSTANDING ANYTHING STATED IN THESE TERMS TO THE CONTRARY, EMOCHA SHALL HAVE NO LIABILITY WITH RESPECT TO INACCURACIES AND/OR OUT OF SCOPE ACTIVITIES.
What does emocha cost?
(a) Employees. emocha does not charge Employees directly for use of the Service. Please check with your employer for any fees or charges which may be billed to you or your insurance company for use of the Service.
(b) Supervisors. You agree to pay all fees or charges that may apply to your use of the Service based on any fees, charges, and billing terms agreed to between you and emocha. If your employer has purchased a subscription to emocha for you, you are not responsible for paying any fees to emocha.
What am I not allowed to do when using the Service?
In addition to your other promises and obligations, by using emocha’s Service, Users agree NOT to:
- Use your account or the Service to advertise, 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 your employer;
- 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 data submission(s), 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 does not have any obligation to, but may monitor your use of the Service for compliance with these terms. 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.
How do I provide feedback to emocha and who owns it?
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 and may be shared with your employer in emocha’s discretion. 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.
How and when can my account be terminated?
If you breach any of these Terms, we may suspend or disable your account or terminate your access to the Service without prior notice to you. If you are an Employee, we will notify your employer organization about any such termination. There may be other instances where we may need to terminate your access to the Service that are not related to any of your actions or inactions. We reserve the right to terminate your access to and use of the Service and materials at any time, with or without cause, and will notify your employer organization of any such termination.
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.
Third-Parties and Third-Party Sites
The Service may be linked to other websites that are not emocha properties (collectively, “Third-Party Sites”). You acknowledge and agree that the Third-Party Sites may have different privacy policies, terms and conditions, user guides, and/or business practices (“Third-Party Rules”) than emocha, and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Rules. emocha does not verify, make any representations or take responsibility for any Third-Party Site, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. You understand that your employer organization does not compel or prohibit your use of these Third-Party Sites and that your employer organization will not receive any of the data you submit to such sites.
YOU AGREE THAT EMOCHA WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, APPLICATION. INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY. Any reference on the Service to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply emocha’s endorsement or recommendation.
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.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE EMOCHA SERVICE, INCLUDING OTHER EMPLOYEES AND/OR SUPERVISORS. YOU UNDERSTAND THAT EMOCHA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE.
NOTHING IN THESE TERMS SHALL AFFECT YOUR LEGAL RIGHTS AS A CONSUMER OR EXCLUDE OR LIMIT ANY LIABILITY, WHICH CANNOT BE LEGALLY EXCLUDED OR LIMITED. 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. HOWEVER, YOUR EMPLOYER ORGANIZATION MAY RETAIN YOUR DATA OUTSIDE OF EMOCHA’S CONTROL.
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.
Use outside the U.S.
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.
Apple Store, Android Market & Google Play
If you download the Mobile App via the Apple App Store (the “App Provider”):
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.
By agreeing to these Terms, you acknowledge that you understand and agree to the following:
- this Agreement is only between you and emocha, and not between you and the App Provider, and only emocha is responsible for the Mobile App (not the App Provider);
- the App Provider has no obligation to furnish any maintenance or support services with respect to the Mobile App;
- in the event of any failure of the Mobile App to conform to any applicable warranty, (i) you may notify the App Provider and the App Provider will refund the purchase price for the Mobile App to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Mobile App, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility;
- the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Mobile App or your possession and use of the Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation;
- in the event of any third-party claim that the Mobile App or your possession and use of the Mobile App infringes that third party’s intellectual property rights, the App Provider will not be responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim; and
- the App Provider, and its subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the Mobile App. This means that, upon your acceptance of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Mobile App against you.
Apple users only: If you downloaded the Mobile App from the App Store, the license granted to you in these Terms is non-transferable and is for use of the Mobile App on any Apple products that you or your employer organization own or control.
If you download the Mobile App via the Android Market:
The following additional terms and conditions apply with respect to any Mobile App designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and/or your employer organization 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.
- 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.
- 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.
- 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 AS TO ANY CLAIMS AGAINST EMOCHA, NOT THOSE CLAIMS WHICH YOU MAY HAVE AGAINST YOUR EMPLOYER OR THAT YOUR EMPLOYER MAY HAVE AGAINST YOU. 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.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS BETWEEN YOU AND EMOCHA 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. NOTHING IN THIS PARAGRAPH MODIFIES ANY AGREEMENTS, RIGHTS OR RESPONSIBILITIES BETWEEN YOU AND YOUR EMPLOYER.
How do I opt-out of receiving emails from emocha?
In using the Service, you may receive periodic email communications regarding the Service, new product offers and information regarding the Service, which are part of the Service and which you cannot opt out of receiving. If you choose not to receive these communications, you may not be able to use the Service and should contact your employer organization or emocha to terminate services.
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.
General Contract Terms
How can I contact emocha?
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, 10807 Falls Road, #828, Brooklandville, MD, 21022 with a copy to email@example.com.