TERMS OF SERVICE
- INFORMATION WE COLLECT:When you interact with us through the Services, we may collect Personal Data and other information from you, as further described below:
NON-IDENTIFIABLE DATA: When you interact with Empath through the Services, we receive and store certain personally non-identifiable information. Such information, which is collected passively using various technologies, cannot presently be used to specifically identify you. Empath may store such information itself or such information may be included in databases owned and maintained by Empath affiliates, agents or service providers. The Services may use such information and pool it with other information to track, for example, the total number of visitors to our Site, the number of visitors to each page of our Site, and the domain names of our visitors' Internet service providers. It is important to note that no Personal Data is available or used in this process.
AGGREGATED PERSONAL DATA: In an ongoing effort to better understand and serve the users of the Services, Empath often conducts research on its customer demographics, interests and behavior based on the Personal Data and other information provided to us. This research may be compiled and analyzed on an aggregate basis, and Empath may share this aggregate data with its affiliates, agents and business partners (including retailers, distributors, potential and actual investors, etc.). This aggregate information does not identify you personally. Empath may also disclose aggregated user statistics in order to describe our services to current and prospective business partners, and to other third parties for other lawful purposes.
LOCATION INFORMATION: Location Information: Our Service may collect and use your location information (for example, by using the GPS on your device) to provide certain functionality of our Service. We may also use your location information in an aggregate way, as described above in the “Aggregated Personal Data” section.
- OUR DISCLOSURE OF YOUR PERSONAL DATA AND OTHER INFORMATION:Empath is not in the business of selling your information. We consider this information to be a vital part of our relationship with you. There are, however, certain circumstances in which we may share your Personal Data with certain third parties without further notice to you, as set forth below:
BUSINESS TRANSFERS: As we develop our business, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, dissolution or similar event, Personal Data may be part of the transferred assets.
AGENTS, CONSULTANTS AND RELATED THIRD PARTIES: Empath, like many businesses, sometimes hires other companies to perform certain business-related functions. Examples of such functions include mailing information, maintaining databases and processing payments. When we employ another entity to perform a function of this nature, we only provide them with the information that they need to perform their specific function.
LEGAL REQUIREMENTS: Empath may disclose your Personal Data if required to do so by law or in the good faith belief that such action is necessary to (i) comply with a legal obligation, (ii) protect and defend the rights or property of Empath, (iii) act in urgent circumstances to protect the personal safety of users of the Services or the public, or (iv) protect against legal liability.
- YOUR CHOICES: You can visit the Site without providing any Personal Data. If you choose not to provide any Personal Data, you may not be able to use certain Services.
You may also have the option of posting your Services activities or messages to Social Networking Services when you access content through the Services; you acknowledge that if you choose to use this feature, your friends, followers and subscribers on any Social Networking Services you have enabled will be able to view such activity or messages.
- SECURITY:Empath takes reasonable steps to protect the Personal Data provided via the Services from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. However, no Internet or email transmission is ever fully secure or error free. In particular, email sent to or from the Services may not be secure. Therefore, you should take special care in deciding what information you send to us via email. Please keep this in mind when disclosing any Personal Data to Empath via the Internet.
- OTHER TERMS AND CONDITIONS:Your access to and use of the Services is subject to all other terms and policies made available at www.elfkins.com.
- ACCESS TO INFORMATION; CONTACTING EMPATH:To keep your Personal Data accurate, current, and complete, please contact us as specified below. We will take reasonable steps to update or correct Personal Data in our possession that you have previously submitted via the Services.
You may contact us as follows: firstname.lastname@example.org.
ELFKINS LIMITED WARRANTY
WHO IS COVERED?
You must have proof of purchase to receive warranty service. A sales receipt or other document showing that you purchased the ELFKINS Communications Robot (“ELFKIN”, “ELFKIN(S)”) is considered proof of purchase.
WHAT IS COVERED?
Empath Interactive, Inc. (“Empath”) warrants that the ELFKIN purchased directly from www.elfkins.com or other authorized retailers will be free from defects in materials and workmanship during the limited warranty period described herein. The limited warranty coverage begins the day you purchase the ELFKIN, as further described in the following text.
For ninety (90) days from the purchase date, Empath will, at no charge to you, replace the Elfkin that becomes defective or inoperable with a repaired, refurbished, new or comparable ELFKIN (at Empath’s sole discretion). You must return the defective or inoperable ELFKIN to Empath’s designated location following the instructions that we will provide to you. Empath will have no warranty obligations with respect to a returned ELFKIN if it determines, in its reasonable discretion after examination of the returned ELFKIN, that the ELFKIN is ineligible for this limited warranty. This is your sole and exclusive remedy for breach of this limited warranty. This limited warranty is transferable from the original purchaser; provided that the subsequent owner possesses the original receipt documenting the purchase from an authorized retailer.
Exchanging the ELFKIN for a replacement product does not restart or extend any of the above-set forth time periods, which continue to be calculated from the purchase date of your original ELFKIN. Therefore, when the warranty on your original ELFKIN expires, the warranty on the replacement product similarly expires on that same date.
WHAT IS EXCLUDED?
Your warranty does not cover:
- Labor charges for installation or setup of the ELFKIN.
- Any taxes imposed on Empath for units replaced or repaired under this warranty.
- Handling, storage, installation, testing, or use not in accordance with the instructions provided by Empath.
- Replacement of the ELFKIN that become defective or inoperable due to misuse, abuse, accident, modifications, improper maintenance, unauthorized repair, normal wear and tear, tampering, interruptions in electric power, or other cause not within the control of Empath, including but not limited to, removal of the outer skin of the ELFKIN, water damage, and disassembly of the ELFKIN.
- Consumable parts, including batteries, unless damage is due to defects in materials or workmanship of the ELFKIN.
- Damages to, or viruses that may infect, the ELFKIN or other devices arising from the use of unauthorized third-party devices in connection with the ELFKIN.
- Damages resulting from or relating to a modification or adaptation that has been made to the ELFKIN to enable it to operate in any country other than the country for which it was designed.
- An ELFKIN used for commercial purposes.
- Access connections (telephone or broadband), including charges from your communications provider.
BEFORE REQUESTING SERVICE…
Please check the troubleshooting advice found at www.elfkins.com/support before calling Empath Customer Support. Following the troubleshooting tips contained therein may save you a call to Customer Support.
TO GET WARRANTY SERVICE…
If you believe you need service for an ELFKIN, contact Empath Customer Support at www.elfkins.com/support, email@example.com or 1-877-ELFKINS. If it is determined that an ELFKIN needs to be exchanged, you will receive a return authorization number. The representative will give you complete shipping details.
DISCLAIMER OF WARRANTIES
All implied warranties, including implied warranties of merchantability and fitness for a particular purpose, are limited in duration to the duration of this express warranty. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. This warranty gives you specific legal rights. You may have other rights which vary from state to state (or jurisdiction to jurisdiction). EMPATH’S RESPONSIBILITY FOR MALFUNCTIONS AND DEFECTS IN AN ELFKIN IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN THIS LIMITED WARRANTY. ALL EXPRESS AND IMPLIED WARRANTIES FOR AN ELFKIN, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF (AND ALL CONDITIONS OF) MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO THE LIMITED WARRANTY PERIOD SET FORTH ABOVE, AND NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WILL APPLY AFTER SUCH PERIOD. Some states (or jurisdictions) do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
LIMITATION OF DAMAGES
EMPATH DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS LIMITED WARRANTY, AND EMPATH DOES NOT ACCEPT LIABILITY FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST DATA. TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS LIMITED WARRANTY OR THE ELFKIN WILL NOT EXCEED THE AMOUNT ACTUALLY PAID FOR THE ELFKIN BY THE ORIGINAL PURCHASER. Some states do not allow the exclusion of incidental, indirect or consequential damages, so the above exclusion may not apply to you. This warranty gives you specific legal rights, and you also may have other rights which vary from state to state.
LIMITATION OF LIABILITY
EMPATH MAY PROVIDE YOU ONLINE INFORMATION (“PRODUCT INFORMATION”) REGARDING THE ELFKIN. THE INFORMATION MAY CHANGE FROM TIME TO TIME. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL PRODUCT INFORMATION IS PROVIDED FOR YOUR CONVENIENCE, “AS IS”, AND “AS AVAILABLE.” EMPATH DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT PRODUCT INFORMATION WILL BE AVAILABLE, ACCURATE, OR RELIABLE OR THAT PRODUCT INFORMATION OR USE OF THE ELKFIN WILL PROVIDE SAFETY IN YOUR HOME. YOU USE ALL PRODUCT INFORMATION AND THE ELFKIN AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND EMPATH DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR WIRING, FIXTURES, ELECTRICTY, HOME, ELFKIN, ELFKIN PERIPHERALS, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION OR THE ELFKIN.
IF YOU ARE A NEW JERSEY RESIDENT, THIS LIMITATION OF LIABILITY SECTION IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THIS LIMITATION OF LIABILITY SECTION IS HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION shall not affect the validity of the remaining PORTIONS of THE APPLICABLE SECTION.
ELFKINS TERMS OF SERVICE
THIS TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST EMPATH ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Empath Interactive, Inc. (“Empath,” “ELFKINS,” “we,” “us,” “our”) provides its services (described below) to you through its website located at http://www.elfkins.com/ (the “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
ACCESS AND USE OF SERVICE
SERVICES DESCRIPTION: The Service is designed to provide communications and entertainment services for children and families.
MEMBER ACCOUNT, PASSWORD AND SECURITY: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Empath of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Empath will not be liable for any loss or damage arising from your failure to comply with this Section.
UPDATES AND MODIFICATIONS TO SERVICE: We may periodically update the software on the device(s) that you have purchased to ensure the device(s) remain fully compatible with the latest technology. These updates may be downloaded automatically by default; however, you can turn off this feature in the settings section of our mobile application. In addition, Empath reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Empath will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
GENERAL PRACTICES REGARDING USE AND STORAGE: You acknowledge that Empath may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Empath’s servers on your behalf. You agree that Empath has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Empath reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Empath reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
MOBILE SERVICES: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Empath and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.
CONDITIONS OF USE
USER CONDUCT: You are solely responsible for all video, images, information, data, text, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Empath. Empath reserves the right to investigate and take appropriate legal action against anyone who, in Empath’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Empath, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Empath or its users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18 except as expressly authorized by the parent or guardian of such person under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
FEE: To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Empath information regarding your credit card or other payment instrument. You represent and warrant to Empath that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Empath the amount that is specified for the Service in accordance with this Terms of Service. If you dispute any charges you must let Empath know within thirty (30) days after the date that Empath charges you. We reserve the right to change Empath’s prices. If Empath does change prices, Empath will provide notice of the change on the Site or in email to you, at Empath’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on Empath’s net income.
SPECIAL NOTICE FOR INTERNATIONAL USE; EXPORT CONTROLS: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
COMMERCIAL USE: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
APPLE-ENABLED SOFTARE APPLICATIONS
Empath offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
- Empath and you acknowledge that these Terms of Service are concluded between Empath and you only, and not with Apple, and that as between Empath and Apple, Empath, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Empath’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Empath and you acknowledge that Empath, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Empath and Apple, Empath, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- 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.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Empath as follows:
Empath Interactive, Inc.
1730 S Amphlett Blvd, Suite 210
San Mateo, CA 94402
Empath and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
INTELLECTUAL PROPERTY RIGHTS
SERVICE CONTENT, SOFTWARE AND TRADEMARKS: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Empath, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Empath from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Empath, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Empath.
The Empath name and logos are trademarks and service marks of Empath (collectively the “Empath Trademarks”). Other Empath, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Empath. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Empath Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Empath Trademarks will inure to our exclusive benefit.
THIRD PARTY MATERIAL: Under no circumstances will Empath be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Empath does not pre-screen content, but that Empath and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Empath and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Empath, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
USER CONTENT TRANSMITTED THROUGH THE SERVICE: With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Empath and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Empath may be used by Empath internally to improve the operation of the Services. In addition, we may use aggregated and anonymized information relating to your use of the Services to improve the Services and in connection with the operation of our business.
You acknowledge and agree that Empath may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Empath, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
THIRD PARTY WEBSITES
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Empath has no control over such sites and resources and Empath is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Empath will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Empath is not liable for any loss or claim that you may have against any such third party.
INDEMNITY AND RELEASE
You agree to release, indemnify and hold Empath and its affiliates and their officers, employees, directors and agents (“Indemnitee”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify, defend or hold harmless any Indemnitee from or against any liability, damages or costs incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive 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.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EMPATH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
EMPATH MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EMPATH WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EMPATH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL EMPATH’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID EMPATH IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A NEW JERSEY RESIDENT, THIS LIMITATION OF LIABILITY SECTION IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THIS LIMITATION OF LIABILITY SECTION IS HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION shall not affect the validity of the remaining PORTIONS of THE APPLICABLE SECTION.
DISPUTE RESOUTION BY BINDING ARBITRATION [PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS]
- AGREEMENT TO ARBITRATE: This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Empath, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Empath are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON-INDIVIDUAL RELIEF: YOU AND EMPATH AGREE THAT EACH OF US 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. UNLESS BOTH YOU AND EMPATH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
- PRE-ARBITRATION DISPUTE RESOLUTION: Empath is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Empath should be sent to 1730 S Amphlett Blvd, Suite 210, San Mateo, CA 94402 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Empath and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Empath may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Empath or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Empath is entitled.
- ARBITRATION PROCEDURES: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Empath and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Empath agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- COSTS OF ARBITRATION: Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Empath will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Empath will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Empath will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
- CONFIDENTIALITY: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
- SEVERABILITY: If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
- FUTURE CHANGES TO ARBITIRATION AGREEMENT: Notwithstanding any provision in this Terms of Service to the contrary, Empath agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Empath written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Empath, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Empath believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Empath may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Empath may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Empath will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Empath will have no liability or responsibility with respect thereto. Empath reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and Empath and govern your use of the Service, superseding any prior agreements between you and Empath with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Empath agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California. The failure of Empath to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Empath, but Empath may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Empath Interactive, Inc., 1730 S Amphlett Blvd., Suite 210, San Mateo, CA 94402 or 650-753-2670.
QUESTIONS? CONCERNS? SUGGESTIONS?
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.