Effective Date: October 30th, 2018
1. THE SERVICES ARE NOT INTENDED TO REPLACE OR AFFECT YOUR RESPONSIBILITY TO SEEK ASSISTANCE THROUGH 911 IN THE EVENT OF A MEDICAL EMERGENCY OR OTHER URGENT SITUATION. YOU ARE RESPONSIBLE FOR ENSURING THAT YOU HAVE CONTACTED 9-1-1 IN THE CASE OF AN EMERGENCY BY ACTIVATING THE APPLICATION (AS DEFINED BELOW) OR BY DIALING 9-1-1 FROM YOUR PHONE (WHICH MAY BE NECESSARY IF THERE ARE CONNECTIVITY ISSUES).
2. In order to utilize the Services, you must have a connection to the Internet. The Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. Ember Medical does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices.
3. In order to utilize the Response Services (as defined below) you must consent to the sharing of certain of your personal information, including your geo-location information.
4. Ember Medical does not provide medical advice, diagnosis or treatment. Use of the Services does not create a patient-physician relationship between you, Ember Medical, any Medic or any other user of the Services. The Ember Medical Content offered through the Services was designed for educational purposes only to assist you in developing your response to what you perceive to be an emergency situation and to enable you to request help from Medics (as defined below), if such Medics are willing and able to offer assistance to you. The Ember Medical Content and other services offered through the Services are not intended to replace professional care. You should never disregard advice or forgo seeking treatment from a medical professional because of something you have read in the Ember Medical Content or assistance from a Medic that you obtain through the Services. For the sake of clarity, Ember Medical only connects you to Medics to enable you to facilitate a request for assistance from Medics, and any services provided by (or not provided by) Medics to you, and any results, outcomes or consequences arising therefrom, are outside the scope of the arrangement that you have with Ember Medical. EMBER MEDICAL MAKES NO REPRESENTATIONS, WARRANTIES OR COMMITMENTS TO YOU THAT MEDICS WILL RESPOND TO YOUR REQUESTS, NOR THAT ANY OF THE MEDICS WHO DO RESPOND WILL BE QUALIFIED OR CAPABLE OF PROVIDING ASSISTANCE TO YOU.
5. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW, EMBER MEDICAL EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND WITH REGARD TO ANY INFORMATION, MATERIALS, CONTENT, SERVICES, FEATURES OR PRODUCTS AVAILABLE ON OR THROUGH THE SERVICES, WHETHER SUCH WARRANTIES, REPRESENTATIONS OR GUARANTEES ARE ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6. Services-Specific Terms. These Terms contain general terms that apply to all our Services, as well as certain terms that apply only to a particular Service (“Services-Specific Terms”). We also may present to you or post additional Services-Specific Terms through the Services that apply to particular features of the Services. To the extent that these Terms conflict with the Services-Specific Terms, the Services-Specific terms will control.
LEGAL NOTICE: These Terms contain provisions that limit our liability to you and require you to resolve any dispute with us through final and binding arbitration on an individual basis and not as part of any class or representative action. Please see “Disclaimer of Warranties”, “Limitations of Liability”, “Waiver of Right to Pursue Class Action Claims”, “Limitation on Time to Bring an Action” and “Waiver of Jury Trial; Agreement to Arbitrate Claims” sections below for more information.
A. GENERAL TERMS
1. Services. The Services comprise mobile applications, web-based applications and related services (each, an “Application”), which enable users to (a) request, in their sole discretion, and, to the extent available, receive assistance (“Response Services”) from individuals who are willing to assist in a medical scenario on a volunteer basis (each, a “Medic”), (b) request emergency medical assistance from emergency responders and (c) access and use articles, instructions, videos, tutorials and other educational materials related to basic medical care and first aid that may be available from time to time. YOU ACKNOWLEDGE THAT YOUR ABILITY TO REQUEST MEDIC ASSISTANCE AND RECEIVE EDUCATIONAL MATERIALS THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH NOR CREATE A PATIENT-PHYSICIAN RELATIONSHIP BETWEEN YOU, EMBER MEDICAL, A MEDIC OR ANY OTHER USER OF THE SERVICES, AND EMBER MEDICAL MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, AVAILABILITY, RESPONSIVENESS, TRAINING, BACKGROUND OR QUALIFICATIONS OF THE SERVICES, NOR THE SERVICES OFFERED BY MEDICS, EXCEPT THAT MEDICS PROVIDED DOCUMENTATION THAT INDICATES CPR CERTIFICATION.
3. Right to Amend Terms. We reserve the right to make changes to these Terms and any Service-Specific Terms at any time on a going-forward basis. We will not make any changes that have a retroactive effect unless we are legally required to do so. Please check back from time to time to ensure that you are aware of any changes to these Terms. We will indicate the Terms’ effective date at the top of these Terms. Your continued use of the Services after changes have been posted will indicate your agreement to be bound by the revised Terms or Service-Specific Terms, as applicable, inclusive of such changes.
If we make material changes to the Terms or Service-Specific Terms that would impact your use of the Services, we will endeavor to notify you of the changes, such as by posting a notice directly in the Services or by sending an email notification (if you have provided your email address to us). If you do not agree to the changed Terms or Service-Specific Terms, you should immediately terminate your use of the applicable Services.
B. ACCESS AND USE OF THE SERVICES
1. Eligibility. The Services are not intended for use by anyone under the age of 18. By using the Services, you represent and warrant that you (a) are 18 years of age or older and have authority to enter into these Terms or are 13 years old or older and are using the Services with parental or legal guardian consent and supervision; (b) are registered to use the Services to the extent required by these Terms and have not been previously restricted, suspended or terminated from using the Services by Ember Medical; and (c) are not using another authorized user’s account without that person’s permission.
2. User Accounts; Security and Communication Preferences. To access and use the Services, you will need to create an account with us (“Account”), and in order to create an account you will need to provide us certain information such as your [name, email address, mobile number and unique password] (“Account Information”). You agree that the Account Information that you provide to us at all times will be accurate, complete and current. You may not use anyone else’s account at any time and you may not transfer or share your Account or Account Information to or with anyone.
In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification.
You are responsible for maintaining the confidentiality and security of your Account Information and for all acts or omissions that occur under your Account. You agree to immediately notify Ember Medical if you discover or otherwise suspect any security breaches related to the Services or your Account.
By creating an Account, you consent that Ember Medical may contact you via telephone, text message or other electronic messaging at the telephone number and/or email addresses you provided in connection with your Account, including for marketing purposes and operational notices about your Account (e.g., payment authorizations, password changes and other transactional information). You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. You may opt out of receiving promotional emails at any time by following the unsubscribe instructions provided therein.
3. Network Access and Devices; Software Updates.
a. Network Access. You are responsible for obtaining the data network access necessary to use the Services, and acknowledge that your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your mobile device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services, Applications and any updates thereto. Ember Medical does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. Please check the requirements periodically, as Ember Medical reserves the right to change or cease support of any hardware or software platforms at any time.
b. Software Updates. Ember Medical may from time to time, in its sole discretion (without obligation), develop and provide updates for our software (including Apps), which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Ember Medical has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Portions of the software may not properly operate if you do not install all Updates, so we encourage you to promptly install all Updates. To that end, based on your mobile device settings, with respect to an Application, when your mobile device is connected to the Internet, either (i) the Updates will automatically download and install or (b) you may receive notice of or be prompted to download and install available Updates. For clarity, all Updates are part of the Services and subject to these Terms.
4. License. We hereby grant to you a limited, non-exclusive, nontransferable right to access and use the Services solely for your personal non-commercial use and only as permitted under these Terms and in compliance with applicable laws, rules and regulations (“Access Rights”). Violation of these Terms in any manner automatically terminates your license to access and use the Services and obligates you to cease all use of the Services.
5. Restrictions. Any unlawful, abusive, or unauthorized use of the Services or Ember Medical Content is strictly prohibited. Without limiting the foregoing, you agree that you will not, and will not attempt to:
a) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
b) use the Services in violation of these Terms or any applicable law;
c) reverse engineer, disassemble, decompile, or translate any software or other components of the Services;
d) use, copy, store, reproduce, transmit, distribute, display, modify, prepare derivative works of, alter, license, sublicense, sell, resell, lease or otherwise exploit the Services except as expressly permitted by these Terms;
e) remove, conceal, alter, or otherwise tamper with any copyright, author/source attribution, trademark, or other legal notice from any portion of the Services;
f) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services;
g) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks;
h) frame or otherwise create a browser or border environment around any page or content of the Services; or
i) post or transmit through the Service any material which contains advertising or any solicitation with respect to products or services.
In addition, you agree to refrain from abusive language and behavior which could be regarded as inappropriate, or conduct that is unlawful or illegal.
6. Reservation of Rights. We reserve the right at any time, in our sole discretion, with or without notice, and without liability to you or other users, to: (i) modify, suspend, remove or terminate the Services, any Ember Medical Content (as described in the Ownership section below) or any features or functionality thereof, in whole or in part; (ii) restrict, limit, suspend or terminate your or any other user’s Access Rights; (iii) monitor your use of the Services in order to verify and ensure your compliance with these Terms and any applicable law; and (iv) investigate any suspected or alleged violation of these Terms or any applicable law and cooperate with authorities in such investigation.
7. Links to Third-Party Websites. For our users’ convenience, the Services may contain links to third-party websites. Such linked third-party sites are neither owned, controlled or operated by, nor affiliated with, Ember Medical. Accordingly, we assume no responsibility for, and any link or reference thereto does not constitute or imply our endorsement, sponsorship or approval of, such linked third-party sites or for their content, products, services, views, opinions, policies or activities. Your use of any third-party sites is at your own risk, and Ember Medical and its affiliates will not be liable for any of losses arising out of or relating to such third-party sites. Please review the terms of service, including privacy policies, of such third-party sites.
a. Ember Medical Content. The Services and all information and material provided thereon, including, without limitation, text, photos, images, graphics, artworks, videos and audios, as well as all layout design and look-and-feel elements of the Services (collectively, “Ember Medical Content”), is the proprietary property of Ember Medical and its licensors and are protected by U.S. and international copyright laws, as well as other intellectual property rights. Subject to your compliance with these Terms and applicable laws, we hereby grant you a revocable, conditional and limited license to access and use the Ember Medical Content solely for your own noncommercial and educational use. This license is personal to you and is not transferable to others, and may be revoked and terminated by us at any time and for any reason. Any unauthorized use, copying, reproduction or distribution of the Ember Medical Content is strictly prohibited and may result in civil and/or criminal liabilities. We reserve all rights in the Services and Ember Medical Content not expressly granted herein.
The name and logo for Ember Medical, as well as all trademarks, trade names, taglines and logos appearing on or through the Services (collectively, “Ember Medical Identifiers”), are owned by us or licensed by us. You must not use or display any Ember Medical Identifiers in any manner without our prior written permission. We reserve all rights in the Ember Medical Identifiers.
- Your submission is made without any condition of compensation, credit, attribution, secrecy or confidentiality. No contractual, fiduciary or confidential relationship of any kind (whether express or implied) is created between you and Ember Medical by reason of your submission. Your submission is not returnable and may be retained indefinitely by Ember Medical and our affiliates, successors and assigns.
- You represent and warrant that you have the legal rights needed to grant the license below, and your User Submissions does not contain another’s confidential or proprietary information or violate another’s intellectual property or other proprietary right, or any applicable law. Further, you will not upload any User Submissions that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent.
- We and our affiliates, successors and assigns will be free, without any obligation or restriction, to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Submissions, in whole or in part, for any and all purposes related to our and/or their businesses (including, without limitation, research, business development, marketing, advertising, promotion, publicity, and customer relations), throughout the world and in perpetuity.
Any User Submissions uploaded to the Services is the sole responsibility of the user that submitted it. Although Ember Medical reserves the right to review or remove all User Submissions, we have no obligation to review, screen or edit all of it. As such, we do not take responsibility for any User Submissions provided through the Services. Ember Medical reserves the right to delete or remove User Submissions at any time and for any reason.
9. Termination. These Terms and your license to use the Services will take effect automatically when you install, access, or use the Services and will be in effect until terminated as set forth below. This license will automatically terminate, without notice, in the event you breach any of these Terms. You may terminate these Terms at any time by ceasing to use the Services. Upon termination, you must destroy all copies of any aspect of the Services, including any Ember Medical Content, in your possession. The following terms will survive the termination of these Terms for any reason: (i) the General Terms section below; (ii) the provisions concerning rights in your User Submissions that you have granted to Ember Medical; and (iii) Ember Medical’ proprietary rights, indemnity, disclaimers of warranty, limitation of liability, and governing law.
C. PAYMENT FOR SERVICES AND BILLING
1. Subscription; Payment Model. By creating an account for the Services, and providing a credit card or other available payment method (“Payment Method“), you are activating your subscription to the Services (the “Subscription“) and are agreeing to pay Ember Medical a subscription fee and any applicable taxes and service fees (“Fees“) for the Service, which Ember will charge based on your payment model.
Ember Medical offers two payment models for access and use of the Services: (i) a usage-based model, where Ember Medical will charge a user on a per-use basis for use of the Response Services (“Usage Fee”) and (ii) a subscription-based model, where Ember Medical will charge users a recurring flat fee for the Services (“Flat Fee”). The term “Subscription Fees” used in these Terms is intended to refer to the Usage Fee or Flat Fee, depending on which of the payment models you selected for your Subscription when you registered for the Services.
Some Subscriptions begin with a free trial subscription basis for a limited time (“Trial Period“). If you have elected to pay for the Services using the Flat Fee model, the first Subscription Fees will automatically be charged to your Payment Method at the conclusion of the Trial Period. If you have elected to pay for the Services using the Usage Fee model, the first Subscription Fees will automatically be charged to your Payment Method after your first use of the Response Services after the conclusion of the Trial Period.
For all other Subscriptions, the first Subscription Fees will be charged to your Payment Method as follows:
- For the Flat Fee model, the first Subscription Fee will be charged to your account on the day that you make your Subscription purchase. Thereafter, the Subscription Fees will be charged to your Payment Method on a recurring basis in accordance with your designated cycle. The Subscription Fee amount will be set forth in the section of the Application that identifies pricing and billing requirements.
- For Usage Fee model, the Subscription Fee will be charged to your account on a per-use basis each time you use the Response Service. For the purposes of this provision, “use” means a successful request for assistance from a Medic through the Services.
The Subscription Fees charged to your Payment Method may vary from time to time due to changes in your subscription plan or applicable taxes, and you authorize Ember Medical to charge your Payment Method for these amounts.
2. Billing Cycle (Flat Fee model). The Subscription Fees for users that register for the Services using the Flat Fee model will be billed either at the conclusion of the free trial period or on the day you make your Subscription purchase and on an ongoing, regular basis unless you cancel your Subscription. Note that the timing of your billing may change (i.e. in the event of a problem with your Payment Method, such as an expired credit card).
3. Updating Payment Method. You may update your Payment Method at any time by updating your payment information set forth in the Profile portion of the Application, which will be provided to Ember Medical’s credit card vendor who manages payments for Services.
If at any time Ember Medical is unable to charge your Payment Method for the Subscription Fees due to insufficient funds, expired or invalid account details, or otherwise, you remain responsible for the cost of such Subscription Fees. A change in your Payment Method may result in changes to your prior billing cycle. It is your responsibility to update and maintain the Payment Method associated with your Subscription Fees. In the event your Payment Method is unable to cover the Subscription Fee, we reserve the right to suspend your respective accounts and access to the Service, until such time as the Payment Method has been updated to permit the charging of the Subscription Fee.
4. Cancellation. You can cancel your Subscription to the Services at any time. You may initiate the process to cancel your subscription by selecting the link titled “Cancel Subscription,” which provide additional direction on any additional required steps or information. Contact email@example.com for more information.
Please note that if you use must cancel your Subscription before it renews for a subsequent term (e.g., monthly or annually depending on your elected subscription plan) in order to avoid being charged for the next plan’s Subscription Fees. If you cancel your Subscription, the cancellation will become effective at the end of the then-current Subscription period.
5. No Refunds. REFUNDS WILL NOT BE PROVIDED FOR ANY SUBSCRIPTION. WE DO NOT PROVIDE CREDIT, REFUNDS, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELLED MID-BILLING CYCLE. In such a circumstance, you will continue to have access to your Subscription until the end of the billing cycle. We reserve the right to offer refunds, discounts or other consideration in select circumstances at our sole discretion. Please note that each circumstance is unique and the election to make such an offer in one instance does not create the obligation to do so in another.
D. DISCLAIMER OF WARRANTIES; LIABILITY; INDEMNITY
1. General Disclaimer. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW, EMBER MEDICAL EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND WITH REGARD TO ANY INFORMATION, MATERIALS, CONTENT, SERVICES, FEATURES OR PRODUCTS AVAILABLE ON OR THROUGH THE SERVICES, WHETHER SUCH WARRANTIES, REPRESENTATIONS OR GUARANTEES ARE ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Without limiting the foregoing disclaimer, you understand that Ember Medical makes no warranty and expressly disclaims all warranties: (a) with respect to the accuracy, completeness, currency or reliability of the Services, including the Ember Medical Content; (b) that the Services will meet your requirements, (c) that operation of the Services will be uninterrupted or virus- or error-free or (d) that any errors in the Services can or will be corrected. No advice or information obtained through your use of the Services, whether oral or written, will create any warranty not expressly made herein. You expressly acknowledge and agree that use of the Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. BUT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ALL WARRANTIES.
2. Limitation of Liability. YOUR ACCESS AND USE OF THE SERVICES (INCLUDING FUNCTIONS AND CONTENT) IS AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH THE SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES.
OUR LIABILITY TO YOU IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY IN THEIR ENTIRETY TO YOU. YOU AGREE, HOWEVER, THAT OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
3. Indemnity. You are responsible for your actions. If we (or any of our employees, directors or agents, or other users of the Services) are sued or if any claim or action is made or brought against us (or any of our employees, directors or agents, or other users of the Services) related to anything you do or omit to do (including your (i) use or misuse of the Services, (ii) your use of the Ember Medical Content or your User Submissions, (iii) your violation of these Terms, (iv) your violation of the rights of any other person or entity, or (iv) your violation of any applicable law), you will pay any damages, losses, liabilities, expenses, settlement amounts or costs (including attorney’s fees) that we (and/or they) incur as a result of the suit or claim, and, if we request it, you will defend us (and/or them) against the suit or claim.
E. GOVERNING LAW; LEGAL ACTIONS
1. Governing Law. These Terms are governed by, and construed in accordance with, the substantive laws of the state of California, without regard to the choice of law provisions of any jurisdiction. If a dispute arises between you and us relating to the Services or these Terms, you and we agree that the exclusive jurisdiction for any such dispute will be the state and federal courts located in [San Francisco], California.
2. Waiver of Right to Pursue Class Action Claims. You agree to only resolve disputes with us on an individual basis, and waive any right to pursue any claims on a class or consolidated basis or in a representative capacity. You and Ember Medical agree that each may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding.
3. Limitation on Time to Bring an Action. You agree that regardless of any statute or law to the contrary, any claim or cause of action brought by you arising out of or related to the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or such claim or cause of action will be forever barred.
4. Waiver of Jury Trial; Agreement to Arbitrate Claims. By agreeing to these Terms, both you and we are waiving the right to a jury trial on any disputes that may arise.
You agree to arbitrate all disputes between you and us. If a dispute arises between you and us relating to the Services or these Terms, you and we agree that the dispute shall be resolved by final and binding arbitration administered by the American Arbitration Association under its rules for consumer arbitrations (“AAA Rules”). You and we agree to the following rules relating to any arbitration proceeding:
- YOU AND EMBER MEDICAL WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW. RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
- The venue for all disputes arising under these Terms shall be in [San Francisco, CA] but you and we may agree to conduct the arbitration by telephone, online and/or solely based on written submissions. You hereby waive any right to claim that such location is an inconvenient forum and covenant not to sue us in any other forum.
- The arbitrator will have the power to grant whatever relief would be available in court under law or in equity (including attorney’s fees) and any award of the arbitrator will be final and binding on each of the parties. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives.
- The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review.
- Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- You and we agree, to the extent practicable, to direct the arbitrator issue a decision within 120 days from the date the arbitrator is appointed. You and we acknowledge that if the arbitrator does not issue a decision within 120 days, such event will not limit or waive the powers of the arbitrator or this agreement to arbitrate.
- All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
- The award of the arbitrator will be in writing and will not include any statement setting forth the reasons for the disposition of any claim.
Either you or we may seek an injunction at any time from any court of competent jurisdiction as necessary to protect the rights or property of you or us pending the completion of arbitration.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, Ember Medical will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines that the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Ember Medical for all fees associated with the arbitration that Ember Medical paid on your behalf which you otherwise would be obligated to pay under the AAA Rules.
F. GENERAL TERMS; CONTACT INFORMATION
1. General Terms. You and Ember Medical agree to be bound by the following general terms:
- Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Waivers are effective only if in writing and signed by us.
- Except as described in the section titled Right to Amend Terms, these Terms may not be amended unless in writing and signed by you and us.
- If any provision of these Terms is or becomes unenforceable or invalid, the remaining provisions will continue with the same effect as if such unenforceable or invalid provision had not been used.
- Nothing contained in these Terms will be deemed to constitute Ember Medical or you as the agent or representative of the other or as joint venturers or partners.
- These Terms inure to the benefit of and will be binding upon our and your permitted successors and assigns.
- You must not transfer any of your rights or obligations under these Terms to anyone else without our prior written consent. All of our rights and obligations under these Terms are assignable.
- A printed version of these Terms and of any related notice given in electronic form will be admissible in arbitral, judicial, or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- If you have registered your email address with us, you agree that we may send you notice via email to the email address you have provided, and we are not responsible for your failure to receive notice if email is quarantined by your email security system (e.g., “junk” or “spam” folder) or if you fail to update your email address.
- Headings and captions are for convenience only.
2. How to contact us. We welcome your comments and questions regarding these Terms. You can contact us at:
Ember Medical, Inc.
Address: 479 Jessie St, Indiebio Accelerator
San Francisco, CA, 94103
Phone: +1 321 419 2377
G. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
If you are a copyright owner or an agent thereof, and believe that any third party content on the Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works from the Services;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Ember Medical to locate the material;
iv. Information reasonably sufficient to permit Ember Medical to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
v. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Ember Medical’s designated Copyright Agent to receive notifications of claimed infringement is:
Name: Shadi Wahba
Address: 479 Jessie St, Indiebio Accelerator
San Francisco, CA, 94103
Phone: +1 321 419 2377
H. APPLE DEVICE ADDITIONAL TERMS
If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms”) are hereby made part of these Terms:
- Conflicting Terms. If these Apple Device Additional Terms conflict with any other provision of these Terms, then the Apple Device Additional Terms shall control with respect to access and use of the Services via an Apple Device.
- Agreement with Ember Medical, Not Apple. You acknowledge that these Terms are an agreement between Ember Medical and you, and not with Apple. Ember Medical, not Apple, is solely responsible for any App you access via your Apple Device (“iOS App”) and the content thereof. If these Terms are less restrictive with respect to an iOS App or otherwise conflict with, the Apple App Store Terms of Service (the “App Store Terms of Service”), the App Store Terms of Service shall apply to the extent of any conflict.
- Scope of License. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service.
- Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. If Ember Medical decides (in its sole discretion) to provide support and maintenance services for an iOS App, Ember Medical is solely responsible for providing such services.
- Warranty. In the event of any failure of the an iOS App to conform to any applicable warranty provided by Ember Medical in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is Ember Medical’s sole responsibility. Notwithstanding the foregoing, Ember Medical is not obligated to provide any warranty with respect to an iOS App and you acknowledge and agree that this paragraph will not have any effect on the warranty disclaimers provided in these Terms.
- Product Claims. You hereby acknowledge that Ember Medical, not Apple, is responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Note that, pursuant to the limitation of liability provision set forth in these Terms, these Terms will not limit Ember Medical’s liability beyond what is permitted by applicable law.
- Intellectual Property Rights. You acknowledge that, in the event of any third party claim that an iOS or your possession and use (in accordance with these Terms) of an iOS App infringes that third party’s intellectual property rights, Ember Medical, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Third Party Beneficiary. You hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to any iOS App, and that, upon your acceptance of these Terms, Apple has the right (and deemed to have accepted the right) to enforce the Terms against you with respect to the iOS App as a third party beneficiary thereof.
- Questions or Complaints. Please address your questions, complaints or claims with respect to an iOS App to Ember Medical at firstname.lastname@example.org. Ember Medical’s principal offices are located in San Francisco, CA.
By clicking “Accept” or otherwise accessing and using the Services, you affirm that you have read and understand these Terms and will comply with all the terms of conditions included in these Terms.