(Last modified on December 11, 2020)
1. Introduction and Definitions
“Application” refers to any of the free apps for iOS or Android created and owned by EM:RAP, which allow you to access certain Services. Application also includes any Application updates and upgrades that EM:RAP may provide to you or make available, or that you obtain after the date you obtain the initial copy of the Application, to the extent that such items are not accompanied by a separate TOU or similar document. The Application may be specified as either “iOS Application” or “Android Application”, for use with respect to the Application’s operating system environment.
“Device” refers to the handheld or tablet device onto which you have downloaded the Application through which you may be accessing and using the Services.
“EM:RAP” refers to EM:RAP, Inc., a duly incorporated company in Burbank, California at the address listed below. Where the present TOU refer to “EM:RAP”, they may refer to EM:RAP Inc. or its affiliates, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives”), depending on the context. Any reference to “we”, “our”, or “us” in these TOU refers to EM:RAP, Inc. In these TOU, a Website visitor or Services user may be referred to as “you”. When a user has created an account and is logged in, they may be referred to as a “Logged-in User”.
“EM:RAP Content” refers collectively to all the various audio, video or text materials that are available through the Services, either on the Website or through the Application.
“Services” refers to the software services that EM:RAP has developed or licensed that allow you to access the EM:RAP Content, and various related functionalities.
“Website” is the website located at https://www.emrap.org which is owned and operated by EM:RAP, and includes all subdomains and subpages, present and future.
2. Acceptance and Modifications
THESE TOU CONTAIN A WAIVER OF JURY TRIAL AND A WAIVER OF CLASS ACTION THAT MAY DIMINISH OR AFFECT YOUR LEGAL RIGHTS. PLEASE READ THESE WAIVERS, AS FOUND IN SECTION 18, CAREFULLY.
In the context of the Application, these TOU may also be referred to as, and are equivalent to, an “End User License Agreement” or “EULA”.
EM:RAP reserves the right, at any time and without prior notice, to modify or replace any of these TOU. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of the Website or Services following the posting of any changes to the TOU constitutes acceptance of those changes. If there are any significant changes to the TOU that materially affect our relationship with you, we will use commercially reasonable efforts to notify you by sending a notice to the primary email address specified in your account, by posting a prominent notice when you log in to your account for the first time following those changes, or by posting a prominent notice in the Application and / or on the Website.
3. Contacting Us
If you have any questions about these TOU please contact:
EM:RAP Legal Services
EM:RAP Legal Services
1812 W. Burbank Blvd., #356
Burbank, CA 91506
If you have any questions about our Services or your account, please contact 1-877-99-EMRAP toll free
(1-877-993-6727), between the hours of 9 AM and 4 PM PST, or firstname.lastname@example.org.
4. General Code of Conduct for Use of the Website and Services
In addition to the more specific use requirements and prohibitions found elsewhere in these TOU, by visiting the Website, using the Services or downloading and using the Application, you agree to:
i. Not use the Website or Services in any manner that in any way violates these TOU or any other applicable policy posted by EM:RAP;
ii. Not use the Website or Services in any manner that violates any intellectual property rights of EM:RAP or any third party;
iii. Not use the Website or Services in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
iv. Not use the Website or Services in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to EM:RAP or a third party, or to damage or obtain unauthorized access to any system, data, or other information (whether personal information or not) of EM:RAP, other Services users, or any other third party;
v. Not: (1) take any action that imposes or may impose (as determined by EM:RAP in its sole discretion) an unreasonable or disproportionately large load on EM:RAP’s (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Website or Services or any activities conducted through the Services; (3) bypass any measures EM:RAP may use to prevent or restrict access to the Services or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website or Services; or (5) harvest or scrape any content from the Website or Services in an unreasonable manner;
vii. Not interfere with any third party’s use or enjoyment of the Website or Services;
viii. Not do anything or encourage conduct that would constitute a criminal offense or give rise to civil liability, or is any way unlawful, illegal, fraudulent or harmful to any third party;
ix. Not attempt to do any of the foregoing prohibitions;
x. Use the Website and Services in good faith, and in compliance with all applicable local, state, national, and international laws, and in compliance with your obligations under these TOU.
5. Use of the Application
a. The Application is licensed, not sold. EM:RAP grants you the non-exclusive, non-transferable, non-sublicensable, limited right and license to install and use the Application solely and exclusively for your personal use on your Device, or the use of any other third party with access to the Device that you control and with your permission, and as permitted by the Usage Rules set forth in the App Store Terms and Conditions for the iOS Application or the Google Play Terms of Service for the Android Application. The iOS App Store or Google Play may be referred to in these TOU as a “Third-Party Application Distributor”.
b. You may not use the Application in any manner that could damage, disable, overburden, or impair the Application (or servers or networks connected to the Application), nor may you use the Application in any manner that could interfere with any other party’s use and enjoyment of the Application (or servers or networks connected to the Application).
c. You agree that you are solely responsible for (and that EM:RAP has no responsibility to you or to any third party for) your use of the Application, any breach of your obligations under the TOU, and for the consequences (including any loss or damage, direct or indirect, which EM:RAP may suffer) of any such breach. Where a third party uses the Application on your Device with your permission, you are solely responsible for conforming to these TOU and any breach thereof shall be your responsibility. Where a third party gains control of your Device without your permission, we strongly suggest taking action (especially a remote wipe or other procedure to lock out your Device) as EM:RAP cannot be held responsible for any misuse of, or damage to, your Device (whether in relation to the Application or not) in such circumstances.
b. By installing, accessing or using the Application or using the Website or Services, you consent to those information collection and usage terms as described in the Policy.
7. Accessing and Downloading the iOS Application from the Apple iTunes Store, and Related Acknowledgements
a. You acknowledge and agree that (i) these TOU are concluded between you and EM:RAP only, and not Apple, and (ii) EM:RAP, not Apple, is solely responsible for the iOS Application and content thereof. Your use of the iOS Application must comply with the Apple Media Services Terms and Conditions, which you are responsible to review from time to time.
b. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Application.
c. Apple will have no warranty obligation whatsoever with respect to the iOS Application. As between EM:RAP and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of EM:RAP, or as further specified and limited hereinafter.
d. You and EM:RAP acknowledge that, as between EM:RAP and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the iOS Application or your possession and use of the iOS Application, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e. You and EM:RAP acknowledge that, in the event of any third-party claim that the iOS Application or your possession and use of the iOS Application infringes that third party’s intellectual property rights, EM:RAP, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, as specified in section 5 above and elsewhere in this TOU.
f. You and EM:RAP acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these TOU as related to your license of the iOS Application, and that, upon your acceptance of these TOU, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOU as related to your license of the iOS Application against you as a third-party beneficiary thereof.
g. You acknowledge 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.
h. Without limiting any other of these TOU, you must comply with all applicable third-party terms of agreement when using the Application.
i. You acknowledge that updates to the iOS Application are subject to the approval of Apple, and EM:RAP and its Representatives shall not be held responsible for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from any delay in the approval of updates by Apple.
8. Accounts, Passwords and Logged-in Users
a. Accounts and Passwords
You understand you are responsible for any activity that occurs through your account and agree you will not sell, transfer, license or assign accounts, contacts, username, or any account rights. With the exception of individuals that are expressly authorized to create accounts on behalf of a group, EM:RAP prohibits the creation of, and you agree you will not create, an account for anyone other than yourself. You represent and warrant that all information provided or provided to EM:RAP upon registration and at all other times will be true, accurate, current, and complete and you agree to update information as necessary to maintain its truth and accuracy.
As part of the account registration, you will be asked to choose a password. It is your responsibility to create a password of sufficient strength that it cannot easily be discovered by third parties. If you forget your created password, a reset can be requested through your account providing the email used at sign up, and EM:RAP will send a reset link, though we may request additional information to verify your identity.
If you are a Logged-in User, it is strongly suggested that you log out of your account at the end of every session, or not leave a logged-in account unattended for any period of time. EM:RAP and / or its Representatives will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Services with your Account Information and accessing your account through any means, and disclaims any responsibility in this regard.
b. Free Trial Accounts
You may choose to access the Services with a free trial account by supplying the required Account Information. A free trial account provides access only to certain EM:RAP Content, which shall be at EM:RAP’s sole discretion, and may be modified at any time without notice to you. Free trial accounts do not expire, and you may upgrade your account and gain full access to all EM:RAP Content by purchasing a Subscription, as described in the next section of these TOU.
c. Account Termination
EM:RAP reserves the right to terminate your account, at its sole discretion, at any time and for any reason, including but not limited to whether you have violated the letter or spirit of the TOU. For more details regarding the legal effects of account termination, please refer to section 13 of these TOU.
9. Description and Use of the Services, Subscriptions, and Payments
a. The Services
Purchase of a Subscription as described further in this section entitles you to full access to all EM:RAP Content that is available on or through the Website or Application, and all related functionalities. Please note that not necessarily all EM:RAP Content may be available through the Application or through the Website. Users may need to access both the Website and the Application to access all of the EM:RAP Content in a Subscription.
b. Disclaimer Regarding Medical Information
The Services and EM:RAP Content are provided solely for your exclusive personal, educational, non-commercial use for educational purposes and should not be relied upon to treat patients or diagnose disease. The Services and EM:RAP Content are provided for general medical education purposes only and are not meant to be applied rigidly and followed in all cases. Use of any medical information in a particular situation remains the professional responsibility of the practitioner. Without limiting the generality of the Disclaimer of Warranties further in these TOU, EM:RAP and / or its Representatives shall not be responsible for any loss or damage, pecuniary or otherwise, resulting from your reliance on any EM:RAP Content for any medical decision.
c. Beta Services and Disclaimer
Certain of the Services or other elements available on or through the Website and Application may be designated as “beta” (the “Beta Services”), meaning they are not finalized services or content. Any user or Logged-in User accessing such Beta Services hereby expressly acknowledges and agrees that the Beta Services (including any modifications or improvements thereto) may not be ready for general commercial release and may contain bugs, errors, incorrect information or defects. Accordingly, EM:RAP is providing the Beta Services to you “as is”. EM:RAP and its Representatives make no representations or warranties or covenants, express or implied, in respect of the Beta Services, including without limitation, statutory or implied warranties or conditions of merchantability, accuracy, non-infringement, satisfactory quality or fitness for a particular purpose, all of which are expressly disclaimed and excluded. EM:RAP does not guarantee that the Beta Services will ever be made generally commercially available, or that any generally commercially available release of any Beta Service will contain the same or similar functionalities/features as the Beta Services made available by EM:RAP further to this section of the TOU.
The foregoing disclaimer applies to any Beta Service offered through the Website or Application or Services under license to EM:RAP.
You may purchase an annual Subscription to access the full EM:RAP Content and Services by paying the amount indicated on the sign-up page. You have the option to set your Subscription to automatically renew, in which case your credit card will be charged for the next year on the first of the month in the following year of the month you signed up. So for example if you signed up during any day of January, your Subscription will automatically renew and your credit card charged on January 1 of the following year. You may cancel the automatic renewal of your Subscription at any time in your settings when you are a Logged-in User. If you choose not to have automatic renewal, EM:RAP will send you email reminders prior to expiration of your Subscription.
You may also purchase multiple Subscriptions (“Group Subscriptions”) with the discounts as indicated on the Group Subscribe sign-up page. When purchasing Group Subscriptions, you represent and warrant that you have the authority to purchase Subscriptions on behalf of other individuals.
When you place an order for Subscription(s) through the Services, you are entering into a contract with EM:RAP to pay the specified order amount for your Subscription(s).
You may use the Services to make a donation to EM:RAP’s Global Outreach (GO) initiative (“Donations”). EM:RAP GO is a 501(C)(3) nonprofit, and you will be issued a tax receipt for any Donations. If you choose to make a recurring monthly Donation, you may cancel future donations any time by contacting us at email@example.com.
f. Billing Information, Payment Processing and Other Charges
Where you are using the Services on a Device, you shall be responsible for any data charges incurred from your wireless carrier or other data provider while using the Application.
g. Pricing and Taxes
Prices of Subscriptions displayed through the Services are firm and in U.S. dollars (USD), which may be converted to other currencies at the time of payment processing, depending on your country of origin and / or credit card account agreement. Prices do not include applicable sales taxes, which may be displayed and added during the checkout process, depending on your location.
h. Cancellation and Refunds of Your Subscription
We are committed to your satisfaction with the Services. If you purchase a Subscription and are dissatisfied for any reason, you may receive a full refund within two months of your purchase. Following the two-month period, if you choose to cancel we will prorate your refund up to the full year of your Subscription period. If you wish to cancel your Subscription, please contact us at firstname.lastname@example.org. Furthermore, if you withdraw consent to use your Personal Information and we are no longer able to provide the Services to you, you will also be entitled to a refund as per this subsection.
i. Inviting Friends
As a Logged-in User with a valid Subscription, you may participate in the “Refer a Friend” program offered by EM:RAP, as described on this page. When participating in this program, you are subject to the Invite Friends Terms of Service, which are incorporated by reference into these TOU.
10. User Content Policy, and Related Copyright and Intellectual Property Rights
As a Logged-in User, you may use the Services to create, submit, and / or upload certain content including but not limited to comments related to certain EM:RAP Content, which shall be deemed “User Content”. By creating, submitting and / or uploading User Content through and to the Services, you agree to be bound by the EM:RAP policy for User Content as described in this section (the “User Content Policy”).
When you submit User Content, you acknowledge and agree to the following:
i. User Content submitted by you does not violate any intellectual property right or other proprietary right of a third party. Without limiting the generality of the foregoing, you acknowledge that any written text, photographs, or audio or video clips submitted are your own original works, or works for which you have been granted a valid license to reproduce or display. You affirm, represent and warrant that: (1) you own or have the necessary licenses, rights, consents, and permissions to use and authorize EM:RAP to use all intellectual property rights and other proprietary rights in and to the User Content (or the individual constituent elements thereof) as set out herein; and (2) have all necessary consents to collect, use and disclose any personally identifiable information, images, or sounds (of yourself or third parties) contained or displayed in the User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and these TOU;
ii. You retain all of your ownership rights in the User Content you submit. However, by submitting User Content to EM:RAP, you hereby grant EM:RAP a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, edit, translate, reproduce, distribute, display, and / or perform and otherwise fully exploit the User Content in connection with the Website and Services and / or EM:RAP 's (and its successors' and affiliates') business or activities, including without limitation for promoting and redistributing part or all of the Website or Services (and derivative works thereof) in any media formats and through any media channels without any compensation to you. You understand and agree that EM:RAP may retain, but not display or distribute, server copies of User Content that have been removed or deleted;
iii. You also hereby waive any moral rights you may have in your User Content and grant other visitors or Users of the Website or Services a non-exclusive license to access your User Content, and to use, reproduce, distribute, display and / or perform such User Content as permitted through the functionality of the Services and under these TOU;
iv. The licenses granted by you in the previous two paragraphs in regards the User Content are perpetual and irrevocable, and apply throughout the world and in any and all media as applicable;
v. You will not upload any User Content that is unlawful, such as User Content that is threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another’s privacy, or otherwise tortious. Furthermore, you will not upload any User Content that is racist, sexist, homophobic, or otherwise abusive or offensive to any minority or group; contains any adult content or political militancy; or upload any User Content that contains any viruses, commercial solicitation, mass mailing, chain mailing or any other form of spam;
vi. You will not misrepresent your affiliation with another person or legal entity, or impersonate another person or legal entity, or give the impression or insinuation your User Content originates from EM:RAP;
vii. You will not include in User Content links to any third-party website that is a spam or phishing website, to any website that sells goods or services, or to any website that may violate any applicable law.
Where you are accessing or downloading User Content of a Logged-in User, you acknowledge that any use of User Content accessed or downloaded by you while using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any third party arising therefrom, and EM:RAP disclaims any responsibility in this regard.
If you as a Website visitor or Services user believe that a Logged-in User has posted User Content that violates this User Content Policy, please contact us at email@example.com so that we may conduct an inquiry. EM:RAP retains absolute discretion whether to remove or modify any User Content or take any other action pursuant to your report.
User Content is not edited, curated or otherwise modified or checked by EM:RAP prior to posting. However, EM:RAP reserves the right, in its sole discretion, to remove or modify immediately and without notice any User Content that violates the User Content Policy.
Please note that the User Content posted through the Services does not constitute advice or endorsement from EM:RAP and is intended for informational purposes only. User Content is created by Logged-in Users and may reflect their views regarding health matters or medical treatment. Any statements, advice, opinions or tips included in User Content are those of the Logged-In User only.
EM:RAP, its affiliates and their respective Representatives will not be held liable for any damages, pecuniary or otherwise, to you or any third party arising from your submission or use of User Content, whether it violates the User Content Policy or not, or our removal or modification thereof, and disclaims any responsibility in this regard. To the fullest extent permitted by law, EM:RAP assumes no liability or responsibility to any person with respect to any User Content including, but not limited to, defamation, errors, obscenity, falsehoods, or omissions that may be encountered within any User Content.
11. Proprietary Rights
a. Intellectual Property Rights
You acknowledge that: (i) the Services, Application and Website contain proprietary and confidential information that is protected by applicable intellectual property laws and other laws, and (ii) EM:RAP and/or third parties own all right, title and interest in and to the Services, Application and Website and content (including but not limited to EM:RAP Content) that may be presented or accessed through the Application and Website, including without limitation all Intellectual Property Rights therein and thereto. All rights not specifically granted under these TOU are reserved to EM:RAP and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, whether registered or not.
You agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Website, Application or Services, or content (including but not limited to EM:RAP Content) that may be presented or accessed through the Services for any purpose, unless otherwise permitted by these TOU; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in or Services; or (iii) remove, obscure, or alter EM:RAP’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Website, Application or Services.
The content, arrangement and layout of the Website and Application (excluding User Content as defined in the previous section of these TOU), including but not limited to all EM:RAP Content as well as all trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and Computer Code are proprietary to EM:RAP, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of EM:RAP, or as permitted by the functionality of the Services or these TOU, including without limitation the next subsection of these TOU. Any unauthorized use of the content, arrangement or layout of the Website or Application, EM:RAP Content, Computer Code, images, logos, videos, audio or trademarks found in the Website or Application or any portion of or derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and EM:RAP reserves the right to take action accordingly.
EM:RAP hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to print and download extracts from the Services (including but not limited to EM:RAP Content) as permitted by the functionality of the Services for your personal, non-commercial use, subject to the intellectual property conditions of this section, and the following further restrictions:
- You agree not to modify digital or hard copies of any material printed or downloaded from the Services in accordance with this section;
- You will ensure EM:RAP’s distinction as the author and/or owner of material printed or downloaded from the Services is always acknowledged and referenced, if ever presented to a third party;
- You may not use any materials (including but not limited to EM:RAP Content) on the Services (or the Services itself) for any commercial purposes without first obtaining a license from EM:RAP.
b. Prints and Downloading
Through the Website, EM:RAP makes certain photographs and other images available for download (each a “Print”). This subsection of the TOU outlines the rules associated with downloading and using Prints.
EM:RAP does not claim any ownership rights or Intellectual Property Rights in the Prints, which are licensed from third parties (the “Print Copyright Holders”) for the purposes as outlined in this subsection. EM:RAP on behalf of the Print Copyright Holder grants you permission to download and use any Print for non-commercial, educational, research, or private study purposes. This permission is worldwide, nonexclusive, and nontransferable.
You agree to credit the Print Copyright Holder when using the Print for the purposes specified in these TOU. The exact copyright credit that must be used by you is listed next to each Print on the Website.
You agree to defend, indemnify, save, and hold harmless EM:RAP, its employees, officers, and designates from any and all costs, expenses, damages, and liability arising because of any claim whatsoever that may be presented by anyone for loss or damage or other relief occasioned or caused by the use of the Print by you.
EM:RAP’s interest is to protect the integrity of the original Print. EM:RAP will not allow for any manipulation of the original Print (except for allowable cropping), unless a request for modification is made in writing and such request is approved by the Print Copyright Holder.
Availability of the Print on the Website does not imply that EM:RAP endorses any product, enterprise, or opinions. Nor does it confirm the accuracy of any content on or related to the Print.
EM:RAP reserves the right to refuse permission for Print reproduction and/or download to anyone who has not complied with the terms of these TOU. You are also responsible for conforming with the laws of libel, publicity rights, and copyright which may be involved in the use of the Print.
c. Submitted Information
If you choose to communicate to EM:RAP (via any means) positive feedback or suggestions for improvements to the Website, Application, Services, EM:RAP Content or EM:RAP and / or its businesses generally (collectively, “Feedback”), EM:RAP shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to EM:RAP and waive in favor of EM:RAP, its successors and assigns all your moral rights in the Feedback, and agree to provide EM:RAP such assistance as EM:RAP may require to document, perfect, and maintain EM:RAP’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to EM:RAP, you are not entitled to any compensation or reimbursement of any kind from EM:RAP under any circumstances.
Apple and iOS are registered trademarks of Apple Inc. Android is a registered trademark of Google, LLC.
12. Interruption of Service
From time to time, the Services may be unavailable for brief periods of time for maintenance and / or modifications to the Services. While we will endeavour to make this unavailability as brief as possible, EM:RAP and its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Services, and disclaims any responsibility thereto.
13. Termination of the Services and the TOU
You agree that EM:RAP, in its sole discretion, with or without cause, has the right (but not the obligation) to block your IP address, revoke your account credentials or otherwise terminate your access to or use of the Services (or any portion thereof), immediately and without notice, for any reason, including, without limitation, if EM:RAP believes that you have acted inconsistently with the letter or spirit of the TOU including but not limited to the User Content Policy.
EM:RAP may also, in its sole discretion and at any time, discontinue providing the Services, or any portion thereof, with or without notice. You agree that EM:RAP shall not be liable to you or any third party for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from termination of your access to the Services, or from EM:RAP’s termination of the Services, or any portion thereof.
You may also choose to terminate your access to the Services by cancelling your account. If you wish to cancel your account, please contact us at firstname.lastname@example.org or follow the instructions in the Services when you are a Logged-in User.
Termination of the Services or your access to the Services shall terminate the present TOU as between you and EM:RAP. All provisions of these TOU which by their very nature should survive termination of these TOU shall survive termination, including without limitation, intellectual property provisions, disclaimers, indemnity and limitations of liability.
14. External Links
In no way will EM:RAP or its Representatives be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Website or Application or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.
15. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES, THE INFORMATION THEREON (WHETHER PROVIDED BY EM:RAP OR THIRD PARTIES, INCLUDING BUT NOT LIMITED TO EM:RAP CONTENT) OR ANY ACTIVITY ARISING FROM YOUR USE OF THE SERVICES OR THE INFORMATION THEREON OR THE MATERIALS STREAMED OR DOWNLOADED THEREFROM IS AT YOUR SOLE RISK. THE SERVICES, ANY MATERIALS STREAMED OR DOWNLOADED THEREFROM (INCLUDING BUT NOT LIMITED TO EM:RAP CONTENT), OR ANY THIRD PARTY MATERIALS, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD, STREAM OR ACCESS OF ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICES OR ANY OTHER FUNCTIONALITIES OF THE SERVICES, OR LOSSES OR DAMAGES (FINANCIAL OR OTHERWISE) RESULTING FROM (I) YOUR USE OF THE SERVICES THE INFORMATION THEREON, ANY MATERIALS STREAMED OR DOWNLOADED THEREFROM (INCLUDING BUT NOT LIMITED TO EM:RAP CONTENT), OR (II) ANY ACTIVITY ARISING FROM THE USE OF THE SERVICES, THE INFORMATION THEREON OR ANY MATERIALS STREAMED OR DOWNLOADED THEREFROM (INCLUDING BUT NOT LIMITED TO EM:RAP CONTENT).
THE INFORMATION OR RESOURCES PROVIDED THROUGH THE SERVICES (INCLUDING BUT NOT LIMITED TO EM:RAP CONTENT), WRITTEN OR PRODUCED BY EM:RAP STAFF, FREELANCE WRITERS OR OTHER SUBCONTRACTORS ARE KNOWN TO BE AS ACCURATE AS POSSIBLE AT THE TIME OF WRITING OR PRODUCTION, AND EVERY EFFORT HAS BEEN MADE TO ENSURE THAT THE INFORMATION FROM THE WEBSITE OR SERVICES IS AS ACCURATE AND UP-TO-DATE AS POSSIBLE. HOWEVER, CERTAIN INFORMATION MAY CHANGE, AND ERRORS OR OMISSIONS MAY OCCUR, AND EM:RAP SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, FINANCIAL OR OTHERWISE, RESULTING FROM CHANGES OR ERRORS IN INFORMATION, OR ANY OMISSION, ON THE WEBSITE OR THROUGH THE SERVICES.
EM:RAP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: WARRANTIES OF TITLE AND NON-INFRINGEMENT; WARRANTIES THAT THE SERVICES, THE INFORMATION THEREON OR ANY MATERIALS STREAMED OR DOWNLOADED THEREFROM (INCLUDING BUT NOT LIMITED TO EM:RAP CONTENT), AND ANY THIRD-PARTY MATERIALS WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE AND FREE FROM VIRUS AND OTHER HARMFUL COMPONENTS; AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EM:RAP, AND ITS REPRESENTATIVES DO NOT WARRANT THAT: (I) THE WEBSITE OR SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS OR OMISSIONS WILL BE CORRECTED; (III) ANY CONTENT(INCLUDING BUT NOT LIMITED TO EM:RAP CONTENT) OR SOFTWARE AVAILABLE AT OR THROUGH THE WEBSITE OR SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE WEBSITE OR SERVICES OR ANY CONTENT STREAMED OR DOWNLOADED THEREFROM (INCLUDING BUT NOT LIMITED TO EM:RAP CONTENT) WILL MEET YOUR REQUIREMENTS.
16. Limitation of Liability
EM:RAP SHALL NOT BE LIABLE AND ASSUMES NO RESPONSIBILITY FOR ANY LOSS OR DAMAGES (WHETHER FINANCIAL OR OTHERWISE) ARISING FROM OR IN RELATING TO THE INFORMATION ON THE SERVICES OR STREAMED OR DOWNLOADED THEREFROM (INCLUDING BUT NOT LIMITED TO EM:RAP CONTENT), THE USE OF THE SERVICES, ACTIVITIES ARISING FROM YOUR USE OF THE SERVICES, OR ANY THIRD-PARTY MATERIALS ON THE WEBSITE OR AVAILABLE THROUGH THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EM:RAP OR ITS REPRESENTATIVES: (I) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF OR RELATING TO THE SERVICES OR YOUR USE, MISUSE OR INABILITY TO USE THE SERVICES, EVEN IF EM:RAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TOU, WHERE PERMITTED BY LAW IN NO EVENT WILL EM:RAP’S AGGREGATE LIABILITY FOR ANY CLAIMS IN CONNECTION WITH YOUR USE OF THE SERVICES BE THE TOTAL PAID BY YOU FOR YOUR SUBSCRIPTION(S) IN THE PREVIOUS 6 MONTHS.
18. Governing Laws and Jurisdiction; WAIVER OF JURY TRIAL AND WAIVER OF CLASS ACTION
These TOU, and your use of the Website or Services shall be governed by and construed in accordance with the laws of the State of California in force at the time without regard to conflict of law provisions. Regardless of where you access the Website or Services, you agree that any action at law or in equity arising out of or relating to the TOU or your use of the Website or Services shall be filed and adjudicated only in the State or Federal Courts located in the State of California, in Los Angeles County, and any appellate courts therefrom, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction and venue of such court over any suit, action or proceeding arising out of the TOU or your use of the Website or Services. Notwithstanding the foregoing, EM:RAP shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by the Los Angeles County court will, or may not be, enforced by the jurisdiction in which you reside or are located; or (iii) to enforce in your jurisdiction a judgment obtained against you in the Los Angeles County court.
You and EM:RAP expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods and any legislation implementing such Convention will not apply to these TOU, your use of the Website or Services nor to any dispute arising therefrom.
YOU ACKNOWLEDGE AND AGREE THAT ANY DISPUTE WHICH MAY ARISE UNDER THESE TOU OR YOUR USE OF THE SERVICES IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TOU OR YOUR USE OF THE WEBSITE OR SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT YOU AND EM:RAP WILL RESOLVE ANY DISPUTES, CLAIMS OR CONTROVERSIES ON AN INDIVIDUAL BASIS, AND THAT ANY CLAIMS BROUGHT UNDER THESE TOU OR YOUR USE OF THE WEBSITE OR SERVICES WILL BE BROUGHT IN AN INDIVIDUAL CAPACITY, AND NOT ON BEHALF OF, OR AS PART OF, ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT EM:RAP AND YOU SHALL NOT PARTICIPATE IN ANY CONSOLIDATED, CLASS, OR REPRESENTATIVE PROCEEDING (EXISTING OR FUTURE) BROUGHT BY ANY THIRD PARTY ARISING UNDER THESE TOU OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES.
19. Miscellaneous Provisions
b. EM:RAP shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond EM:RAP’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation, or any force majeure event.
d. The rights granted in these TOU may not be assigned or transferred by either you or EM:RAP without the prior written approval of the other party. Where a third party uses the Application installed on your Device with your permission, you are legally responsible for that third party's use and are bound by these TOU. Neither you nor EM:RAP are permitted to delegate their responsibilities or obligations under these TOU without the prior written approval of the other party.
e. The information provided on the Website or within the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject EM:RAP to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Services or any portion of the Services, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, Services or other feature that EM:RAP provides.
f. The failure of EM:RAP to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to EM:RAP.
© EM:RAP, Inc. 2020