These terms of use are entered into by and between you and Emmawell, Inc. (“Company,” “we” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use”), govern your access to and use of our website at www.emmawell.com or any of our services, such as our mobile application, along with any related software or Company servers (collectively, the “Platform”), including any content, functionality and services offered on or through the foregoing, whether as a guest or a registered user.

 

These Terms of Use will be effective as of the date that you request an appointment or create your account with us. PLEASE READ THE TERMS OF USE CAREFULLY. BY CLICKING “I ACCEPT” AND USING THE PLATFORM, YOU AGREE TO BE BOUND AND ABIDE BY THE TERMS SET FORTH HEREIN AND OUR PRIVACY POLICY FOUND AT http://www.emmawell.com/privacytermsofuse (THE “PRIVACY POLICY”), WHICH IS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF USE OR PRIVACY POLICY, YOU MAY NOT USE THE PLATFORM. IF YOU ARE USING THE PLATFORM ON BEHALF OF A BUSINESS OR SOME OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO GRANT ALL LICENSES SET FORTH IN THESE TERMS OF USE AND TO AGREE TO THESE TERMS OF USE ON BEHALF OF THE BUSINESS OR ENTITY.

 

If you are not eighteen (18) years of age, you are required to have your parents or legal guardians review and agree to these Terms of Use prior to using any of the Platform. By installing, copying and/or otherwise using the Platform you are signifying your acknowledgement, acceptance and agreement to these Terms of Use.

 

THESE TERMS OF USE APPLY TO ALL USERS OF THE PLATFORM, INCLUDING USERS WHO ARE ALSO CONTRIBUTORS OF CONTENT, INFORMATION, AND OTHER MATERIALS. IF YOU DO NOT AGREE TO THE TERMS OF THESE TERMS OF USE, YOU ARE NOT PERMITTED TO ACCESS, INSTALL, COPY OR OTHERWISE USE THE PLATFORM OR ANY PORTION THEREOF. YOUR REMEDY FOR DISSATISFACTION WITH THE PLATFORM OR ANY PRODUCTS, CONTENT, OR OTHER INFORMATION MADE AVAILABLE BY OR THROUGH EMMAWELL, IS TO STOP USING THE PLATFORM. YOUR AGREEMENT WITH EMMAWELL REGARDING COMPLIANCE WITH THE THESE TERMS OF USE BECOMES EFFECTIVE IMMEDIATELY AS OF THE DATE THAT YOU CLICK “I ACCEPT” OR UPON COMMENCEMENT OF YOUR USE OF THE PLATFORM, WHICHEVER SOONER. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS SET FORTH IN THESE TERMS OF USE AND THE PRIVACY POLICY, DO NOT DOWNLOAD OR USE THE PLATFORM, AND EMMAWELL SHALL NOT GRANT TO YOU THE LICENSE TO INSTALL AND USE THE PLATFORM.

 

1. USER’S ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS

The Platform is offered subject to your compliance with all of the terms and conditions contained herein and all other operating rules, policies and procedures. In addition, some applications offered through or in connection with the Platform may be subject to additional terms and conditions promulgated by EMMAWELL from time to time. We may revise and update these Terms of Use from time to time in our sole discretion and without prior notice, except that we will notify you of any material changes relating to the dispute resolution, arbitration and governing law and jurisdiction provisions set forth herein (“Material Changes”).  Any modifications to these Terms of Use will be posted on http://www.emmawell.com/privacytermsofuse and will be effective immediately, and will apply to disputes arising under these Terms of Use from the date of posting forward, except that Material Changes will not apply to any disputes that arise prior to the date that you have actual notice of such Material Changes. Your continued use of the Platform after a modification has been made to these Terms of Use constitutes your acceptance of such modification.

 

When you register for an account, you will provide an email address and create a password (your “Credentials”). You should keep your Credentials private and not share them with anyone else. You must immediately notify us if your Credentials have been stolen or compromised by reaching us at hello@emmawell.com. You are responsible for all use of your Credentials, including use by others to whom you have given or made available your Credentials.

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2. LIMITED USE LICENSE

Subject to your compliance with these Terms of Use, EMMAWELL hereby grants you a non-exclusive, nonsublicensable, non-transferable, limited, revocable right and license to access and use one (1) copy of the Platform solely in accordance with instructions provided by EMMAWELL.  These Terms of Use shall also apply to any patches or updates you may obtain for the Platform. IN ACCORDANCE WITH AND NOT INTENDING TO LIMIT ANY OF THE PROVISIONS OR PROTECTIONS SET FORTH HEREIN, DUPLICATION, COPYING OR ANY FORM OF REPRODUCTION OF ANY PORTION OF THE PLATFORM OR RELATED INFORMATION, MATERIALS OR OTHER CONTENT TO ANY OTHER SERVER OR LOCATION FOR THE PURPOSES OF DUPLICATION, COPYING OR ANY OTHER FORM OF REPRODUCTION IS EXPRESSLY AND EXPLICITLY PROHIBITED. This license does not give you any title or ownership in the Platform, and should not be construed as a sale or transfer of any intellectual property rights to the Platform. All rights not specifically granted under these Terms of Use are hereby reserved by EMMAWELL and, as applicable, by its licensors.

 

3. COMPLIANCE

Each party represents and warrants to the other party that its activities hereunder shall comply with all applicable laws, regulations and other governmental requirements and shall not violate or infringe any valid United States intellectual property or privacy rights of a third party.  

 

To the extent you are utilizing the clinician version of the Platform (a “Clinical User”) for use in conjunction with your end customers, you shall obtain all consents to the extent required by applicable law as necessary for EMMAWELL to collect, use, and share information relating to each applicable end customer’s use of the Platform.  Use of the clinician version of the Platform may result in the storage, processing or transmission of Protected Health Information (“PHI”), as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and may require that you enter into a Business Associate Agreement (“HIPAA BAA”) with EMMAWELL. Any PHI that EMMAWELL creates, accesses or receives in connection with you as a Clinical User under these Terms of Use will be used, disclosed and treated in accordance with the HIPAA BAA between the parties entered into on the Effective Date of such BAA. To the extent that we enter into a HIPAA BAA with you, such HIPAA BAA is made part of these Terms of Use and will remain in effect for the duration of these Terms of Use. If the provisions of the HIPAA BAA conflict with the general terms and conditions of these Terms of Use, the provisions of the HIPAA BAA will control with respect to use and disclosure of PHI.

If you are a Clinical User, you represent and warrant that you have not been excluded from and are not aware of any proceeding or investigation which may result in exclusion from federal or state health care programs, including but not limited to Medicare and Medicaid, or otherwise placed on a federal or state watch-list.  You further represent and warrant as a Clinical User that you are duly licensed to practice medicine and in good standing in the state(s) in which you see patients.   

 

4. NO RIGHT TO OWNERSHIP

YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE PLATFORM, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL SUCH RIGHTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF EMMAWELL. Except as expressly licensed to you herein, all right, title, and interest in and to the Platform and any and all associated copyrights, trademarks and intellectual properties therein and/or related thereto and all copies thereof (including, but not limited to, any patches, updates, copies, derivative works, titles, computer code, themes, objects, characters, character names, stories, dialogs, catch phrases, locations, concepts, artwork, images, animation, sounds, musical compositions, audio-visual effects, text, methods of operation, moral rights, “applets” incorporated into the Platform, and any related documentation) are owned by EMMAWELL or EMMAWELL’s licensors.  The Platform is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws. All rights are reserved. The Platform contains certain licensed materials, and EMMAWELL and its licensors may protect their rights in the event of any violation of these Terms of Use.

 

5. NO SALE OR ASSIGNMENT

You may not give, purchase, sell, bargain, barter, market, trade, offer for sale, sell, license, assign or otherwise divest your rights, responsibilities or obligations with respect to the Platform, either in whole or in part, without the prior written consent of EMMAWELL. Any attempt to do so shall be void and of no effect.

 

6. LICENSE RESTRICTIONS

You agree to only use the Platform, or any portion thereof, in a manner that is consistent with these Terms of Use, and you SHALL NOT (a) exploit the Platform or any portion thereof commercially, including, but not limited to, at a cyber (Internet) café, computer gaming center or any other location where the Platform will be accessed or used by any third parties who have not purchased a license to use the Platform and agreed to be bound by the terms of these Terms of Use; (b) sell, rent, lease, license, distribute or otherwise transfer the Platform or any copies of the Platform; (c) reverse engineer, derive source code, modify, decompile, disassemble, copy, or create derivative works of the Platform, in whole or in part (except as the applicable law expressly permits, in which case all and any modifications, adaptations, copies, improvements, etc. shall belong to, vest in and be the exclusive property of EMMAWELL and/or its licensors on creation, in any event); (d) remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the Platform; (e) export or re-export the Platform or any copy or adaptation in violation of any applicable laws or regulations; or (f) create data or executable programs which mimic data or functionality in the Platform.  Furthermore, you agree that you shall abide by the information, instructions and relevant notices contained in any manual or other documentation accompanying the Platform.

 

7. PROTECTIONS

The Platform may include measures to control access to the Platform, suspend access to the Platform, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under these Terms of Use. If the Platform, including the Platform, permit access to additional online features, only one copy of the applicable Platform may access those features at one time (unless otherwise provided in the Platform documentation). Additional terms and registration may be required to access online services and to download updates and patches to the Platform. Only copies of the Platform subject to a valid license can be used to access online services, and download updates and patches. You may not interfere with such access control measures or attempt to disable or circumvent such security features. If you disable or otherwise tamper with the technical protection measures, the Platform will not function properly.

 

8. INTERNET CONNECTION

The Platform require an Internet connection to access internet-based features, authenticate the Platform, provide updates or patches from time to time, or perform other functions. In order for certain features of the Platform to operate properly, you may be required to have and maintain (a) an adequate Internet connection and/or (b) a valid and active account with an online service as set forth in the Platform documentation, including but not limited to EMMAWELL or an EMMAWELL affiliate. If you do not maintain such accounts, then certain features of the Platform may not operate or may cease to function properly, either in whole or in part. You are wholly responsible for the cost of all Internet connection fees, along with all equipment, servicing, or repair costs necessary to allow you access to the Platform.

 

9. UPDATES AND EVOLUTION OF PLATFORM

From time to time, without prior notice, EMMAWELL may in its sole discretion add new features to the Platform, remove existing features from the Platform, provide patches, updates or otherwise modify the Platform. We may provide updates that must be installed on your computer or mobile device in order for you to access and use the Platform. You hereby consent to EMMAWELL remotely installing updates to the Platform on your computer or mobile device without further notice.

 

You understand that the Platform, and the system specifications necessary to utilize the Platform, may continuously evolve over time as the result of patches and updates to the Platform. EMMAWELL reserves the right to modify or increase the system specifications necessary to operate the Platform at any time and without notice. You are responsible for purchasing any necessary additional technology, systems or services in order to access and operate the Platform.

 

10. PROHIBITED USES  

You may use the Platform only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Platform:

 

• In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).

• To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards (as defined below).

• To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.

• To impersonate or attempt to impersonate EMMAWELL, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen or account names associated with any of the foregoing).

• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined by us, may harm EMMAWELL or users of the Platform or expose them to liability.

 

Additionally, you agree not to:

 

• Use the Platform in any manner that could disable, overburden, damage, or impair the Platform or interfere with any other party’s use of the Platform, including their ability to engage in real time activities through the Platform.

• Set any bot, crawler, spider, scraper or other automatic device, process or means to access the Platform for any purpose, including monitoring, copying or transferring any of the material on the Platform.

• Use any manual process to monitor, copy or transfer any of the material on the Platform or for any other unauthorized purpose without our prior written consent.

• Use any device, software or routine that interferes with the proper working of the Platform.

• Introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.

• Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Platform, the server(s) on which the Platform is stored, or any server, computer or database connected to the Platform.

• Attack the Platform via a denial-of-service attack or a distributed denial-of-service attack.

• Otherwise attempt to interfere with the proper working of the Platform.

 

11. USER CONTRIBUTIONS  

 

The Platform may contain comments and reviews, personal profiles, forums and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Platform.

 

All User Contributions must comply with the Content Standards set forth herein.

 

You acknowledge that any User Contribution you and other users post to the Platform will be considered non-confidential and non-proprietary. By providing any User Contribution on the Platform, you hereby grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns an unlimited right and license to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose, including, but not limited to, as may be necessary to provide you and our other users with the features and functionality of the Platform and for the marketing and advertising purposes of EMMAWELL and its affiliates.

 

You represent and warrant that (a) you own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns; (b) all of your User Contributions do and will comply with these Terms of Use; and (c) you understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not EMMAWELL, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.

 

We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Platform.  We assume no liability for reviews or for any claims, liabilities or losses resulting thereof. 

 

12. MONITORING AND ENFORCEMENT; TERMINATION  

 

We have the right to (a) remove or refuse to post any User Contributions for any or no reason in our sole discretion; (b) take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates these Terms of Use, including the Content Standards (as defined below), infringes the intellectual property rights or other right of any person or entity, threatens the personal safety of users of the Platform or the public or could create liability for EMMAWELL; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Platform; and (e) terminate or suspend your access to all or part of the Platform for any or no reason, including without limitation, any violation of these Terms of Use.

 

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Platform. YOU WAIVE AND HOLD HARMLESS EMMAWELL AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS, FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY EMMAWELL/ANY OF THE FOREGOING PARTIES DURING, OR AS A RESULT OF, ITS INVESTIGATIONS, AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

 

We do not review all material before it is posted on the Platform, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

 

13. CONTENT STANDARDS  

 

All User Contributions must, in their entirety, comply with all applicable federal, state, local and international laws and regulations. In addition, the content standards set forth below (“Content Standards”) apply to any and all User Contributions and use of Interactive Services. Without limiting the foregoing, User Contributions must not:

 

• Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.

• Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, gender identity or age.

• Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.

• Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy, including any violations of HIPAA.

• Deceive or be likely to deceive any person.

• Promote any illegal activity, or advocate, promote or assist any unlawful act.

• Draw legal conclusions about the conduct of other users or the products or services of any third party listed on the Platform.

• Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.

• Impersonate any person, or misrepresent your identity or affiliation with any person or organization.

• Promote commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.

• Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

 

In the event that we determine, in our sole discretion, that you are violating any of the Content Standards, we reserve the right to remove any applicable User Contributions, and/or terminate your access to the Platform.  In the event we determine that you are repeatedly infringing the copyrights of any third parties your account will be terminated and your continued access to the Platform will be denied in accordance with the Digital Millennium Copyright Act (“DMCA”).  

 

14. COPYRIGHT INFRINGEMENT  

 

If you believe that any content provided by Us (“Content”) or User Contributions violate your copyright, you may submit a notification pursuant to the DMCA by providing us with the following information in writing (collectively, a “Notice”) (see 17 U.S.C 512(c)(3) for further details):

 

• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interests;

• a description of the copyrighted work that you claim has been infringed, including the URL;

• (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;

• identification of the URL or other specific location on the Platform where the material that you claim is infringing is located;

• your address, telephone number, and email address;

• a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

• a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

 

All Notices must be sent to our copyright agent via email at admin@emmawell.com.  

 

You acknowledge that the Platform and Content and any underlying technology or software used in connection with therewith contain Our proprietary information. We give you permission to use the Content for personal, non-commercial purposes only and do not transfer any intellectual property rights to you by virtue of permitting your use of the Platform.

 

15. RELIANCE ON INFORMATION POSTED  

 

Certain information posted to the Platform may be provided by healthcare professionals, including but not limited to doctors, therapists and similar providers (“Healthcare Professionals”).  You acknowledge and agree that the availability of such information does not create a treating provider/patient relationship between Healthcare Professionals and other EMMAWELL users. Certain information posted to the Platform may be provided by or on behalf of EMMAWELL and is for informational purposes only. You are not permitted to use the Platform to schedule or request appointments for emergency or urgent care and should not avoid, delay or disregard medical advice received directly from a qualified healthcare professional. DO NOT USE THE PLATFORM FOR EMERGENCY MEDICAL NEEDS. CALL 911 IMMEDIATELY IF YOU EXPERIENCE A MEDICAL EMERGENCY. YOUR USE OF THE CONTENT IS SOLELY AT YOUR OWN RISK.

 

WHILE WE MAKE REASONABLE EFFORTS TO PROVIDE YOU WITH ACCURATE CONTENT, WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK, PRICE OR COST INFORMATION, INSURANCE COVERAGE OR BENEFIT INFORMATION, OR ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY SUCH CONTENT. FURTHERMORE, WE DO NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL OR ENTITY LISTED OR ACCESSIBLE THROUGH THE SERVICES. USE OF EMMAWELL IS NOT INTENDED AS AND SHALL NOT BE CONSTRUED AS MEDICAL ADVICE.

 

EMMAWELL makes reasonable efforts to ensure that Healthcare Professionals only participate in the Services if they hold all active licenses required by law to practice the specialties of the services offered by them. EMMAWELL, at its sole discretion, may exclude Healthcare Providers who have engaged in illegal, inappropriate or unprofessional conduct.   

 

Any insurance related Content may be intended for general reference purposes and for your convenience only. EMMAWELL strives to provide you with accurate information, however, we are not responsible for any inaccurate, incomplete or outdated insurance related Content.

 

Some Healthcare Professionals listed on the Platform may pay Us a fee to be listed on the Platform, including but not limited to “sponsored” results, or in connection with criteria established by your employer (to the extent applicable).  If you are a non-Clinical User, you understand that you (and not EMMAWELL) remain responsible for choosing a Healthcare Professional and all other health-related decisions.  

 

16. PURCHASES

 

Any fees for purchases you make on the Platform are due immediately and are non-refundable regardless of your decision to terminate your usage of the Platform, our decision to terminate your access to the Platform, planned and unplanned disruptions to the Platform, or any reason whatsoever. 

 

To the extent that any amounts owed are not payed when due, or in the event your credit card information is declined or is no longer valid, you will be charged for all applicable third party fees and/or charges that are incidental to the collection of amounts owed and/or chargebacks including, but not limited to, costs of collection (including reasonable attorneys’ fees), convenience fees and/or other third parties charges. 

 

You hereby explicitly agree that all communication in relation to unpaid fees will be made by electronic mail or by phone and that Company may rely on the services of a third party collection agent to makes such communications and engage in collection actions.  

 

17. LINKING TO THE PLATFORM 

 

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.

 

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Use. 

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18. LINKS FROM THE PLATFORM 

 

If the Platform contain links to other Platform and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those Platform or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party site linked to by the Platform, you do so entirely at your own risk and subject to the terms and conditions of use for such site which may be different than these Terms of Use.

 

19. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

 

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW AND EXCEPT AS OTHERWISE MAY BE SET FORTH IN ANY HIPAA BAA BETWEEN YOU AND EMMAWELL, AS APPLICABLE, YOU EXPRESSLY AGREE THAT THE USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND EMMAWELL HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS DUE TO VARIATIONS IN HARDWARE, SOFTWARE, INTERNET CONNECTIONS AND INDIVIDUAL USAGE, EMMAWELL PARTIES DOES NOT WARRANT THE PERFORMANCE OF THE PLATFORM ON YOUR SPECIFIC COMPUTER OR MOBILE DEVICE. WITH RESPECT TO THE PLATFORM, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (B) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE PLATFORM WILL BE INTERAOPERABLE OR COMPATIBLE WITH OTHER SOFTWARE, OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE EFFECTIVE, ACCURATE OR RELIABLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EMMAWELL OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY. AT SOME POINT IN THE FUTURE THE PLATFORM MAY GO OUT OF DATE, AND EMMAWELL MAKES NO COMMITMENT TO UPDATE SUCH PLATFORM. THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE PLATFORM, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. THE USE OF THE PLATFORM OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH OR IN CONNECTION WITH THE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.

 

EMMAWELL MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE PLATFORM, INFORMATION AND/OR RELATED GRAPHICS PUBLISHED AS PART OF THE PLATFORM FOR ANY PURPOSE. THE PLATFORM, INFORMATION AND RELATED GRAPHICS PUBLISHED AS PART OF THE PLATFORM MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. YOU UNDERSTAND AND AGREE THAT TEMPORARY INTERRUPTIONS OF THE PLATFORM MAY OCCUR AS NORMAL EVENTS. YOU FURTHER UNDERSTAND AND AGREE THAT WE HAVE NO CONTROL OVER THIRD PARTY NETWORKS YOU MAY ACCESS IN THE COURSE OF THE USE OF THE PLATFORM, AND THEREFORE, DELAYS AND DISRUPTION OF OTHER NETWORK TRANSMISSIONS ARE COMPLETELY BEYOND EMMAWELL’S CONTROL. EXCEPT AS OTHERWISE MAY BE SET FORTH IN ANY HIPAA BAA BETWEEN YOU AND EMMAWELL, YOU ACKNOWLEDGE AND AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE WITH EMMAWELL IS TO STOP USING THE PLATFORM. IN NO CASE SHALL ANY LIABILITY OF EMMAWELL TO YOU EXCEED THE AMOUNT THAT YOU PAID TO EMMAWELL OR ITS AFFILIATES AND/OR DESIGNEES FOR THE APPLICABLE PLATFORM OR PORTION OF THE PLATFORM GIVING RISE TO ANY SUCH LIABILITY. IN NO EVENT SHALL EMMAWELL OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE PLATFORM, INCLUDING DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, EVEN IF EMMAWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF EMMAWELL AND THE EMMAWELL PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. 

 

NON-CLINICAL USERS OF THE PLATFORM ARE RESPONSIBLE FOR ALL THEIR HEALTHCARE EXPENSES. YOU MUST RESOLVE ANY DISPUTE BETWEEN YOU OR ANY HEALTHCARE PROFESSIONAL ARISING FROM ANY HEALTH CARE ENCOUNTER OR TRANSACTION DIRECTLY WITH THAT HEALTHCARE PROFESSIONAL.

 

Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Software of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. California residents expressly agree to waive California Civil Code Sec. 1542, which states: “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.”

 

20. INDEMNIFICATION

 

You agree to defend, indemnify, and hold EMMAWELL, its affiliates, and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successor and assigns harmless from all liabilities, damages, judgments, awards, claims, losses, costs and expenses, including attorney's fees, that arise from (a) your use of, or activities in connection with the Platform; (b) any violation of these Terms of Use by you; or (c) any allegation that any of your User Contributions infringe or otherwise violate the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party. EMMAWELL reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you or any person using your Credentials, in which event you will cooperate with EMMAWELL in asserting any available defenses.

 

21. INTERNATIONAL USE

 

Although the Platform may be accessible worldwide, we make no representation that the Platform or related materials are appropriate or available for use in locations outside the United States, and accessing them from territories where the content is illegal is prohibited. Those who choose to access the Platform from other locations do so on their own initiative, at their own risk and are responsible for compliance with local laws, if and to the extent local laws are applicable. Any offer and/or information made in connection with the Platform is void where prohibited. Without limiting the foregoing, the Platform may not be exported or re-exported (a) into (or to a national resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By accessing and using the Platform, you represent and warrant that you are not located in, under control of, or a national resident of any such country or on any such list.

 

22. TERMINATION AND SURVIVABILITY OF TERMS

 

EMMAWELL, at its sole discretion, reserves the right to terminate, suspend and/or deactivate your account immediately, without notice, if there has been a violation of these Terms of Use or other policies and terms posted on the Platform by you or by someone using your Credentials. These Terms of Use continue to remain in full force and effect until such time as terminated by either party. You agree and acknowledge that you are not entitled to any refund for any amounts which were paid to EMMAWELL prior to any termination. You retain full discretion to end or terminate your account, if applicable, and discontinue use of the Platform at any time, pursuant to the terms of these Terms of Use. Without prejudice to any other rights of EMMAWELL, these Terms of Use shall terminate automatically if you fail to comply with its terms and conditions. Upon termination, you must delete or destroy (as applicable) all copies of the Platform. The provisions of Sections 4, 5, 6, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25 and 26 shall survive any termination of these Terms of Use.

 

23. INJUNCTION

 

Because EMMAWELL would be irreparably damaged if the terms of these Terms of Use were not specifically enforced, you agree that EMMAWELL shall be entitled, without bond or other security or proof of damages, to take such action as may be required, including seeking an injunction and other equitable remedies, in addition to any other remedies available to it under the applicable law.

 

24. ARBITRATION

 

Any dispute between the parties, whether or not arising from these Terms of Use or its performance, shall be determined by one arbitrator in binding arbitration administered by the JAMS, formerly Judicial Arbitration and Mediation Services, Inc., in Philadelphia, PA; provided, however, that EMMAWELL may seek to injunctive relief in a court of competent jurisdiction with respect to an allegation of infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.  Any witness more than 100 miles from the site of any hearing may testify via telephone, teleconference or other real-time telecommunication technology acceptable to the arbitrator. The arbitrator’s award shall be final and binding on the parties, and may be entered and enforced in any court of competent jurisdiction. 

 

You acknowledge and agree that you and EMMAWELL are each waiving the right to a trial by jury. You further acknowledge and agree that you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and EMMAWELL otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. 

 

In the event this “Arbitration” section is held unenforceable, then the entirety of this “Arbitration” section will be deemed void. Except as provided in the preceding sentence, “Arbitration” section will survive termination of these Terms of Use.

 

25. MISCELLANEOUS

 

These Terms of Use represents the complete agreement between you and EMMAWELL concerning the Platform and supersedes all prior agreements and representations, warranties or understandings between you and EMMAWELL (whether negligently or innocently made but excluding those made fraudulently), regarding the same subject matter. Except with respect to any HIPAA BAA entered into between you and EMMAWELL, EMMAWELL reserves the right to amend these Terms of Use at any time, at its sole discretion. If any part of these Terms of Use is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Use shall continue in effect. Any failure by us to enforce or exercise any provision of these Terms of Use or related rights shall not constitute a waiver of that right or provision.

 

EMMAWELL may assign these Terms of Use, in whole or in part, at any time. Notwithstanding, you may not assign, transfer or sublicense any or all of your rights or obligations under these Terms of Use without EMMAWELL’s express prior written consent. EMMAWELL’s performance of these Terms of Use is subject to existing laws and legal process, and nothing contained in these Terms of Use is in derogation of EMMAWELL’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Platform or information provided to or gathered by EMMAWELL with respect to such use. In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of the Platform arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, terrorism, fire, denial of service attack, internet outages, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above. The parties agree that all correspondence relating to these Terms of Use shall be written in the English language.

 

These Terms of Use represents the full agreement between the parties with respect to the subject matter hereof, and supersedes all prior negotiations and agreements between the parties regarding the same. 

 

These Terms of Use shall be governed by the law of the State of Delaware, without reference to conflicts of laws principles.  Notwithstanding the arbitration requirements set forth herein, to the extent that any legal suit, action or proceeding arises out of, or relates to, these Terms of Use, the Privacy Policy or the Platform, such suit shall be instituted exclusively in the federal courts of the United States or the state courts of the State of Pennsylvania, in each case located in Montgomery County, PA. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

 

26. CONTACT

 

You may contact EMMAWELL via the contact information available on the Platform, as may be updated from time to time.