THE SECTIONS BELOW TITLED "BINDING ARBITRATION" AND "CLASS ACTION WAIVER" CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM CAREFULLY.
Service. The Service is intended to be used by couples, whereby Emi will text relationship exercises to each partner and then act as an intermediary for partners to send messages to each other, through the Service, in response to the exercise prompts.
Only Users (as defined below) will have access to the Service.
Visitors . Visitors, as the term implies, are people who do not use the Service, but want to explore the Website. Visitors can: (i) view and access all publicly-available features and functionality on the Website, and/or (ii) email us.
Fees . At this time, we are offering the Service free of charge. However, we reserve the right to charge a fee for use of the Service at any time in the future, upon notice to you.
By accessing and/or using the Service, you agree to comply with the following community guidelines (the "Community Guidelines "):
We have the right, but not the obligation, to review and reject or remove content that, in our sole discretion, does not adhere to these Community Guidelines. We also reserve the right, in our sole and absolute discretion, to deny you access to the Service or the Website, or to any portion of any of the foregoing, for any reason with or without notice.
The Service and the Website contains material, such as software, text, graphics, images, designs, sound recordings, audiovisual works, and other material provided by or on behalf of us (collectively referred to as the " Content"). The Content is owned by us or licensed to us by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
The trademarks, service marks, and logos used and displayed through the Service or the Website may be registered and/or unregistered trademarks or service marks of ours of our licensors (collectively, the " Trademarks"). Nothing herein should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Trademarks inures to the benefit of us or our licensors.
Through the Service, Emi will send text messages with daily relationship exercises to you and your partner. Some of these exercises may require a response from you that will be sent through Emi to your partner, and vise-versa; all responses and content provided by you in connection with these messages is referred to herein as "User Content."
YOU ARE ENTIRELY RESPONSIBLE FOR ALL USER CONTENT THAT YOU PROVIDE. EMI WILL ACT ONLY AS AN INTERMEDIARY FOR MESSAGES BETWEEN YOU AND YOUR PARTNER THROUGH THE SERVICE. AS AN INTERMEDIARY, WE ARE NOT RESPONSIBLE FOR ANY USER CONTENT IN TEXT MESSAGES BETWEEN YOU AND YOUR PARTNER SENT THROUGH THE SERVICE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ONCE YOU PROVIDE ANY USER CONTENT, IT WILL BE ACCESSIBLE BY EMI, ACTING AS AN INTERMEDIARY WITH RESPECT TO TEXT MESSAGES, AND BY YOUR PARTNER, AND THAT THERE IS NO CONFIDENTIALITY OR PRIVACY WITH RESPECT TO SUCH USER CONTENT, INCLUDING, WITHOUT LIMITATION, ANY PERSONALLY IDENTIFYING INFORMATION CONTAINED THEREIN.
You retain all copyrights and other intellectual property rights in and to your User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, irrevocable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your User Content, name, likeness, and photograph in connection with any use of the related User Content permitted by the previous sentence and/or to advertise and promote the Service, us or our other products and services.
If you submit User Content to us, each such submission constitutes a representation, warranty and covenant that (i) such User Content is your original creation (or that you otherwise have the right to provide the User Content), (ii) you have the rights necessary to grant to us license to the User Content as set forth above, (iii) the User Content and its use by us and our sub-licensees as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material; (iv) the User Content does not violate our Community Guidelines or any applicable law, rule or regulation.
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
6.1 DISCLAIMER OF WARRANTY . THE SERVICE AND THE WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THEY WILL OPERATE ERROR-FREE, THAT THE SERVICE, THE WEBSITE, THE SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
7.2 LIMITATION OF LIABILITY . WE SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR (I) ANY USER CONTENT; (II) INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM THE USE OR INABILITY TO ACCESS OR USE THE SERVICE, THE CONTENT, OR THE WEBSITE; OR (III) DIRECT DAMAGES IN EXCESS OF AN AMOUNT EQUAL TO THE FEES THAT WE HAVE COLLECTED FROM YOU IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE CLAIM, IN EACH CASE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE SERVICE, THE CONTENT, AND THE WEBSITE, AND MESSAGES SENT THROUGH THE SERVICE, MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SERVICE, THE CONTENT, OR THE WEBSITE AT ANY TIME WITHOUT NOTICE.
The Service and the Website may contain links to third-party websites (" External Sites"). These links are provided solely as a convenience to you and not as an endorsement by us of the content or products available through such External Sites. The External Sites may offer third-party goods and services (the " Third Party Products"), and you acknowledge and agree that: (i) we do not manufacture or sell the Third Party Products and thus have no control over the quality, safety, legality or efficacy of any Third Party Product; (ii) we have no involvement in any transaction involving any Third Party Products; and (iii) we shall have no liability with respect to any Third Party Product or any transaction or interaction between you and the provider of any Third Party Product.
The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, or your misuse of the Service, the Content, or the Website, or any of your User Content. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
The Service and the Website are based in the United States. We make no claims concerning whether the Service, the Website or any Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access or use the Service, the Website or any Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Service and/or the Website, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Service and/or the Website at any time without prior notice or liability.
12.1 Reporting Claims of Copyright Infringement . We respect the intellectual property rights of others and attempt to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws. Our designated agent under the Digital Millennium Copyright Act (the "Act") for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Copyright Agent: Aya Takeuchi
801 Foothill Drive, San Mateo, CA 94402
If you believe that your work has been copied on the Service in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
12.2 Counter-Notification Procedures . If you believe that any of your User Content was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a "Counter-Notice ") by submitting written notification to our copyright agent (identified above).
Pursuant to the Act, the Counter-Notice must include substantially the following: (i) your physical or electronic signature; (ii) an identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled; (iii) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (iv) a statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; (v) a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Site may be found) and that you will accept service from the person (or an agent of that person) who provided us with the complaint at issue.
The Act allows us to restore the removed content if the party filing the original notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the Act.
In the event of a dispute arising under or relating to this Agreement (" Dispute"), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act ("FAA"). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. Except for proceedings commenced by Emi to protect its intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder shall be resolved exclusively by state or federal courts located in the State of California. The following provisions will survive any expiration or termination of this Agreement: "Intellectual Property," "Registered User Content; Licenses," "Communications with Us," "No Warranties; Limitation of Liability," "Indemnification," "Termination of the Agreement," "Binding Arbitration," "Class Action Waiver," and "Miscellaneous."
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.