I. OVERVIEW
These Terms of Service (the “Terms”) are entered into by and between Theramie Incorporated d.b.a. Emotivo Health (also referred to as, “Emotivo”, “we”, “us”, or “our”) and the entity or person placing an order for or accessing any of our Services (“Customer”, “you”, or “your”). By signing an Order Form or using our Services, you acknowledge that you have read, understood, and agree to be legally bound by these Terms and the terms and conditions of our privacy policy (the “Privacy Policy”), which are hereby incorporated into these Terms and made a part hereof by reference (collectively, the “Agreement”).
Please read the Terms carefully before accessing or using our Services. By accessing or using any part of the site, you agree you are over the age of 18 and agree to be bound by these Terms. If you do not agree to all the terms and conditions of this agreement, then you may not access or use any Services.
The term “Services” includes all the software, applications, and functionality made available through the Services, including our platform, hosted software, any customer support, connectivity APIs, and related services. All new features which augment or enhance the current Services, including the release of new features or products, including those that require additional fees, are also included in the definition of Services.
THE TERMS OF THIS AGREEMENT MAY BE UPDATED BY EMOTIVO FROM TIME TO TIME WITHOUT NOTICE. THIS AGREEMENT GOVERNS CUSTOMER’S ACCESS TO AND USE OF ANY EMOTIVO WEBSITE, PLATFORM, AS WELL AS ANY USE OR ATTEMPTED USE OF ANY EMOTIVO SERVICES.
In the event that Customer is engaging with Emotivo for a limited period of time for the sole purpose of testing and evaluating the Services and their utility for Customer’s business in contemplation of entering into a longer-term engagement with Emotivo (a “Trial Subscription”), the terms of this Agreement shall apply as set forth in more detail below.
II. DATA AND SERVICES
You acknowledge that the Services and all related functionalities may involve the use of artificial intelligence and machine learning, and while we aim to provide accurate results, our Services may be inaccurate, incomplete, or inappropriate in certain circumstances. While we strive to continue improving the accuracy, reliability, and safety of the Services, it is your responsibility to analyze the accuracy of the results generated by our Services as needed. This includes performing a manual review of the content generated by our Services prior to relying on it, to ensure that it accurately reflects the information you provided.
III. USE OF SERVICES
Subject to your compliance with these Terms and the payment of all applicable fees, Emotivo grants you permission to access the Service, provided that you will not and will not permit any third party to: (i) copy, distribute, reverse engineer, or modify any part of the Services; (ii) disrupt servers or networks connected to the Services; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer your rights to use the Services; (iv) publish or disclose to third parties any evaluation of the Services; (v) use the Services in automatic, semi-automatic or manual tools designed to create virus signatures, virus detection routines, or any other data or code for detecting malicious code or data; (vi) use the Services to build or provide a competitive product or service, or copy any features, functions or graphics of the Services; and (vii) make the Services available to anyone other than yours and your authorized users.
Emotivo shall provide the necessary passwords and access credentials to allow Customer to access the Services. Customer is responsible for maintaining the security of its accounts and will be responsible for any third party or other unauthorized access to the Services from its accounts. If a breach of security or any unauthorized use of your account occurs, you must notify Emotivo immediately. Emotivo is not liable for any losses or damages caused by any unauthorized use of your account.
You further understand and agree that Emotivo is not responsible or liable for any advice, course of treatment, diagnosis, or any other information or service you provide to any patient or other individual; or for the accuracy, completeness, or suitability of any data, information, or summary provided by the Services. You understand and agree not to rely on the Services or any output of the Services, for making mental health or other healthcare related decisions.
For the duration of any Trial Subscription, Customer agrees to access and use the Services only for internal testing and evaluation purposes, and for no other purposes whatsoever, and to limit access to and use of the Services to Customer’s authorized users, solely for such purposes and in accordance with the terms of this Agreement.
IV. INTELLECTUAL PROPERTY
The content provided through the Services, including without limitation, the text, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive features, services, and any other content via the Services (the “Content”) and the trademarks, service marks and logos contained therein (the “Marks”), are owned by or licensed to Emotivo. The Content is provided to you “as-is” for your information and personal use only and may not be used, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without Emotivo’s prior written consent. Emotivo reserves all rights not expressly granted in and to the Services, the Content and the Marks. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any of the Content or that enforce limitations on use of the Services. Emotivo owns all Intellectual Property Rights in and to the Services, the Marks, and the Content. “Intellectual Property Rights” means any and all rights, titles and interests, whether foreign or domestic, in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, foreign or domestic.
Emotivo reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing herein grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Emotivo’s Intellectual Property Rights.
This section shall survive any termination of these Terms.
V. LIMITATION OF LIABILITY AND WARRANTY
We do not guarantee, represent or warrant that your use of the Services will be uninterrupted, timely, secure or error-free. We do not guarantee that the results that may be obtained from the use of the Services will be accurate or reliable.
You expressly agree that your use of, or inability to use, the Services is at your sole risk. The Services and all products and services delivered to you through the Services are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Emotivo, our directors, officers, employees, affiliates, agents, contractors, interns, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Services or any products procured using the Services, or for any other claim related in any way to your use of the Services or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Services or any content (or product) posted, transmitted, or otherwise made available via the Services, even if advised of their possibility. 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, our liability shall be limited to the maximum extent permitted by law.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, EMOTIVO’S (INCLUDING ANY OF ITS AFFILIATES’) AGGREGATE LIABILITY FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00).
VI. INDEMNITY
You agree to indemnify, defend and hold harmless Emotivo and our affiliates, partners, officers, directors, agents, contractors, licensors, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
VII. THIRD-PARTY CONTENT
The Services may present, or otherwise allow you to view, access, link to, and/or interact with, Content from third parties and other sources that are not owned or controlled by us (such Content, “Third-Party Content”). The Services may also enable you to communicate with the related third parties. The display or communication to you of such Third-Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by us of such Third-Party Content or third party, or by such third party of us, and nor any affiliation between us and such third party. We do not assume any responsibility or liability for Third-Party Content, or any third party’s terms of use, privacy policies, actions, omissions, or practices. Please read the terms of use and privacy policy of any third party that you interact with before you engage in any such activity.
VIII. CONFIDENTIALITY
Each of the parties agrees to maintain in confidence any proprietary or non-public information of the other party, whether written or otherwise, disclosed by a party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”). The parties hereby agree the terms and conditions of this Agreement, and any discussions related to the Services shall be considered Confidential Information. Confidential Information also includes: (i) trade secrets and proprietary information (including that of any client, supplier or licensor); (ii) customer/patient lists, client lists, business plans, information security plans, business continuity plans, requests for proposals or requests for information and responses to such requests that the parties may change, and proprietary software programs; (iii) any Personal Data; and (iv) any other information received from or on behalf of a disclosing party that is marked confidential or that the recipient of the information should reasonably be expected to know is confidential. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care.
Confidential Information shall not include any information that is: (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
“Personal Data” means any information that the Company collects, receives, or obtains from or on behalf of you that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, such as the individual’s name, address, social security number, or any information that applicable law proscribes as personally identifiable information.
IX. FEES AND PAYMENT
All fees will be paid by Customer within thirty (30) days of invoice without offset or deduction (“Fees”), unless Customer is paying via Credit Card (as defined below). All fees are non-refundable. Customer shall make all payments hereunder in US dollars on or before the applicable due date. If Customer fails to make any payment when due, without limiting our other rights and remedies: (i) we may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Emotivo for all reasonable costs incurred in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, we may suspend, Customer’s access to any portion or all of the Services until such amounts are paid in full. Customer shall remain responsible for Fees that accrue during any period of suspension for nonpayment. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, unless Customer presents valid documentation of tax exemption.
If Customer is purchasing the Services via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
a. Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer authorizes Emotivo (or its designee) to automatically charge Customer’s Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the applicable subscription period for all Fees accrued as of that date (if any) in accordance with the applicable Order Form.
b. Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted, and Emotivo may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
c. Payment of Outstanding Fees. Upon any termination or expiration of the subscription period, Emotivo will charge Customer’s Credit Card (or invoice Customer directly) for any outstanding Fees for Customer’s use of the Services during the subscription period.
X. ASSIGNMENT
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Emotivo without restriction or notification to you.
XI. MISCELLANEOUS
The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
These Terms together with any an incorporated documents constitute the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms).
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
We may monitor Customer’s use of the Services and collect and compile data and information related to Customer’s use of the Services in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Emotivo and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Emotivo. Customer agrees that Emotivo may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer, Customer’s Confidential Information, or any personal information relating to any individuals.
XII. GOVERNING LAW
These Terms and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its conflicts of law rules. Any litigation arising in connection with this agreement or breach thereof shall be brought in a court of competent jurisdiction located in Kings County, New York. You hereby consent to personal jurisdiction in New York and waive all defenses to such jurisdiction and venue.
XIII. CHANGES TO TERMS
You can review the most current version of the Terms at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to the Services following the posting of any changes to these Terms constitutes acceptance of those changes.
XIV. NOTICES / CONTACT INFORMATION
All notices under these Terms to Emotivo will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by e- mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices to Emotivo should be sent to contact@emotivohealth.com. All notices to you will be deemed to have been duly given when sent to you by First Class U.S. Mail or when sent to you by email at your registered address or any other address you provide us notice of in writing.
Questions about the Terms should be sent to us at contact@emotivohealth.com.
