EMOJILIKE TERMS OF SERVICE, Effective as of May 14, 2018
By accessing, operating, downloading, installing, registering, or otherwise continuing to use the Sites, or by clicking an “I Accept” or “Continue” or other similarly worded “button” or entry field associated with this Agreement, You (or your authorized agent, if applicable), expressly and explicitly acknowledge and agree as follows:
- You understand and intend that this Agreement is a legally binding agreement and the equivalent of a signed, written contract;
- You will use the Sites in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by Emojilike from time to time;
- You understand, accept, and have received this Agreement and its terms and conditions, and acknowledge and demonstrate that you can access this Agreement;
- You are over the age of 18 years old or an emancipated minor, or possess a legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set for the in this Agreement; and
- If you are an employee or other representative entering into this agreement on behalf of an entity, you hereby represent and warrant to Emojilike that you are;
- authorized to enter into this agreement on behalf of the entity and bind the entity to the terms and conditions contained in this Agreement; and
- you are over the age of 18 years old, in which case the terms "you" or "your" shall refer to such entity and its affiliates.
Emojilike reserves the right, at any time and from time to time, with or without notice to you, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on Your use of the Sites. We further reserve the right to add or remove functionality or features, and We may suspend or stop a particular feature altogether. We also reserve the right to charge a fee for any of our features at any time. If you don’t like any changes, you can stop using our Sites at any time.
Emojilike strongly recommends checking Terms of Service periodically. If you disagree with the provisions of the Terms of Service at any time, your sole remedy is to terminate your use of the Services and inform us of such termination as described in the Terms of Service. Continued use of the Services constitutes your agreement to the Terms of Service in effect. Emojilike will communicate material changes to this Agreement by posting the new version of the Agreement on its website at http://www.likemoji.com or other relevant Sites, or as otherwise determined by Emojilike in its sole discretion, or as otherwise required by applicable law, at which time such updated Agreement will be immediately effective.
Your use of the Sites may be provided by Emojilike to you pursuant to a separate manually or digitally-executed agreement. Those additional terms become part of your agreement with Emojilike, if you use the Sites. In the event of any conflict between these additional terms and this Agreement, the additional terms will control.
You also warrant that any registration information and all other information that you submit to Emojilike is true, correct and complete.
Whenever used in this Agreement, the capitalized terms quoted below will have the meaning ascribed to them in this section:
- “Communication” shall have the same meaning set forth in the Section titled “Rights in Information Submitted by You”, herein below.
- "Content" shall mean text, images, photos, audio, video, location data, and all other forms of data or communication.
- “Channel Operator” shall mean the person or entity creating, operating, or managing a Site channel.
- “Channel Operator Communication” shall mean the text messages, audio messages, photos, videos and other communications concerning a Channel Operator or Channel Location Encounter transmitted to You through the Sites.
- “Channel Location Encounter” shall mean Your Interaction at a Channel Location during which such Interaction utilizes the Sites to make Communications available to, or receive Channel Operator Communications from, Channel Operator representatives and agents concerning the Channel Location Encounter.
- “Emojilike Content" shall have the same meaning set forth in the Section titled “Your Account”, herein below.
- “Healthcare Interaction” shall have the same meaning set forth in the Section titled “Patient Consent”, herein below.
- “HIPAA” shall have the same meaning set forth in the Section titled “Patient Consent”, herein below.
- “Interaction” shall mean interactions at one more Channel Operator locations.
- “Patient” means a medical patient engaging in a Channel Location Encounter at a Channel Operator Location who has authorized the Channel Operator to receive Patient Communications via the Sites and to send communications during and after the Patient’s Channel Location Encounter to one or more representatives or agents of the Channel Operator.
- “Application Content" shall mean all of the Content that is made available in connection with the Application, including Your Content, User Content, Third Party Content, and Emojilike Content.
- "Third Party Content" shall mean Content that originates from parties other than Emojilike or its users, which is made available in connection with the Sites.
- "User Content" shall mean Content that users submit or transmit to, through, or in connection with the Sites.
- "Your Content" shall mean Content that you submit or transmit to, through, or in connection with the Sites, such as ratings, reviews, compliments, invitations, check-ins, messages, and information that you publicly or privately display or displayed in your account profile.
- YOUR ACCOUNTS
You may be required to create an account and specify a password in order to use certain services or features on the Sites. To create an account, you must be at least 18 years old and you must provide truthful and accurate information about yourself. Do not attempt to impersonate anyone else when you create your account. If your information changes at any time, please update your account to reflect those changes.
In some cases, an account may be assigned to you by an administrator, such as your employer. If you are using or logging into an account assigned to you by an administrator, additional terms may apply to your use of the Sites. Moreover, your administrator may be able to access or disable your account without our involvement.
You may not share your account with anyone else. Please keep your password confidential, and try not to use it on other websites. If you believe that your account has been compromised at any time, please notify your system administrator or Emojilike immediately.
For purposes of this Agreement, "Content" means text, images, photos, audio, video, location data, and all other forms of data or communication. "Your Content" means Content that you submit or transmit to, through, or in connection with the Sites, such as ratings, reviews, compliments, invitations, check-ins, messages, and information that you publicly or privately display or displayed in your account profile. "User Content" means Content that users submit or transmit to, through, or in connection with the Site. "Emojilike Content" means Content that We create and make available in connection with the Site. "Third Party Content" means Content that originates from parties other than Emojilike or its users, which is made available in connection with the Sites. "Site Content" means all of the Content that is made available in connection with the Sites, including Your Content, User Content, Third Party Content, and Emojilike Content.
- RIGHTS IN INFORMATION SUBMITTED OR POSTED BY YOU
We may provide opportunities for You or others to post certain Content on the Sites. You can only post Content if You own all the rights to that Content, or if another rights holder has given you permission. Once published, your Content cannot always be withdrawn.
By posting Content, You understand, acknowledge and expressly grant Us, Our agents, licensees, and assigns an irrevocable, perpetual, worldwide, royalty-free, assignable, sublicensable, transferable, nonexclusive right and license to reproduce, encode, store, copy, transmit, publish, post, broadcast, display, publicly perform, adapt, modify, create derivative works of, exhibit, aggregate, and otherwise use Your Content for any purpose, and any copyright rights, trademark rights, and other intellectual property rights contained therein (collectively, the "Rights") (in whole or in part) and/or to incorporate such Content, including commentaries, reviews, notes, or other information in other works in any form, media, or technology now known or later developed, for the full term of any Rights that may exist in such Content. You acknowledge that without these Rights, We could not offer our Sites. Please note that this license continues even if you stop using Our Sites.
You expressly agree that the burden of determining whether any Content You provide is protected as a copyright, trademark, trade secret, or other proprietary right rests solely with You, and You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, trade secrets, or other proprietary rights, or any other harm resulting from your submission. You agree to indemnify, release, and hold us harmless from any all liability, claims, actions, loss, harm, damage, injury, cost or expense arising out of any Content you post. You assume all risks associated with your Content, including anyone's reliance on its quality, accuracy, or reliability, or any disclosure by you of information in your Content that makes you personally identifiable.
You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
Any communications or material of any kind relating to the Site and Site functionality that you email, post, or otherwise transmit to Emojilike using the Site or any other media, including, without limitation, data, questions, responses to surveys or questionnaires, comments, or suggestions (individually and collectively your “Communication(s)“) will become the sole property of Emojilike. To the extent it is determined Emojilike is not the owner of such Communications, You hereby grant to Us and our affiliates a worldwide, perpetual, irrevocable, royalty-free license to Emojilike to use and incorporate into the Site any ideas, suggestions, enhancement requests, recommendations, corrections, concepts, know-how, or techniques contained in your Communications for any purpose including, but not limited to, developing and marketing products using such information. Emojilike will be entitled to the unrestricted use and dissemination of such Communication for any purpose, commercial or otherwise, without acknowledgement or compensation to you. You hereby waive any rights you may have to the Communication (including, without limitation, copyrights or moral rights). Please do not share your ideas with Emojilike if you expect to be paid or want to continue to own or claim rights in them.
Although We reserve the right to review, monitor, remove, or edit any of the information submitted, posted to, or contained within the Sites, at Our sole discretion, You acknowledge Emojilike is under no obligation to do so, and shall have no liability for any information made available via the Sites. You acknowledge that any opinions, statements, recommendations, offers, advice, or other information presented or disseminated via the Sites are those of their respective authors who are solely responsible and liable for such Content. Likewise, You are solely responsible for the content of your postings posted to the Sites. Emojilike reserves the right, in its sole discretion, to refuse to post or to remove any material submitted or posted on or to the Sites.
In order to help us provide You with valuable advertising, discount offers, or other commercial or sponsored content from time to time, You give us permission to use your name, uploaded images, content, and information in connection with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. This means, for example, that you permit a business or other entity to pay us to display your name, or uploaded images with your content or information, without any compensation to you. If you are under the age of eighteen (18), you represent that a parent or legal guardian also agrees to this section on your behalf. We further give your consent to share your content or information to advertisers. You understand that we may not always identify paid services and communications as such.
As between you and Emojilike, you own Your Content. We own the Emojilike Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of User Content and other Site Content, computer code, products, software, aggregate user review ratings, and all other elements and components of the Site excluding Your Content, User Content and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world ("IP Rights") associated with the Emojilike Content and the Site, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Emojilike Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Site and the Emojilike Content are retained by us.
User Content (including any that may have been created by users employed or contracted by Emojilike) does not necessarily reflect the opinion of Emojilike. We reserve the right to remove, screen, edit, or reinstate User Content from time to time at our sole discretion for any reason or no reason, and without notice to you. For example, we may remove a review if we believe violates our Content guidelines. We have no obligation to retain or provide you with copies of Your Content, nor do we guarantee any confidentiality with respect to Your Content.
- CONTENT SUBMITTED OR POSTED BY OTHERS
We are not responsible for, and do not endorse, Content posted by any other person. Accordingly, we may not be held liable, directly or indirectly, for any loss or damage caused to you in connection with any Content posted by another person or user. Your use of the Site is at your own risk, including the risk that you might be exposed to Content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate
- HYPERLINKS AND USE OF THIRD PARTY SERVICES
The Sites may contain links to other sites. Emojilike does not control such other sites, and Emojilike and its affiliates and agents make no representations whatsoever concerning the content, accuracy, security or privacy of those sites. The fact that Emojilike has provided a link to a site is not an endorsement, authorization, sponsorship, or affiliation with respect to such site, its owners or its providers. There are risks in using any information, software, or products found on the Internet, and Emojilike cautions you to make sure you understand these risks before retrieving, using, relying upon, or purchasing anything via the Internet. You agree that under no circumstances will you hold Emojilike or its affiliates or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on other sites.
All transactions using the Sites are between the transacting parties only. The Sites may contain features and functionalities linking You or providing You with certain functionality and access to third party content, including web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. You acknowledge that Emojilike is not responsible for such content or services. We may also provide some third-party content to You as part of the Sites. However, Emojilike is not an agent of any transacting party, nor are We a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between You and the applicable third-party. Similarly, We are not responsible for any third-party content you access with the Sites, and You irrevocably waive any claim against Us with respect to such sites and third-party content. Emojilike shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third-party. You should make whatever investigation You feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for Your dealings with any third party related to the Sites, including the delivery of and payment for goods and services. Should You have any problems resulting from your use of any third-party services, or should you suffer data loss or other losses as a result of problems with any of Your other service providers or any third-party services, We will not be responsible.
- YOUR USE OF THE SITES
Please do not use the Sites in a way that violates any laws, infringes on anyone’s rights, is offensive, or interferes with the Sites or any features on the Sites (including any technological measures we employ to enforce these Terms). You are responsible for the accuracy, quality and legality of Content you submit and the means by which You acquired such Content, and only using the Sites in accordance with applicable laws and government regulations, including, without limitation, any laws requiring registration or filings with local authorities, and the payment of any taxes.
You acknowledge that You are solely responsible for obtaining and maintaining any equipment or ancillary services needed to access or use the Sites, including, without limitation, mobile devices, modems, hardware, software, and long distance or local telephone service. You are responsible for ensuring that such equipment or ancillary services are compatible with the Services.
You shall not (except as and only to the extent that any restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Application):
- copy the Sites, a portion of the Sites, or any part, feature, function or user interface thereof except as expressly permitted by this Agreement;
- modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Sites;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Sites or any features or functionality of the Sites, to any third party for any reason, including by making the Sites available on a network where it is capable of being accessed by more than one device at any time; or
- remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Sites;
- write a fake or defamatory review, trade reviews with other businesses, or compensate someone or be compensated to write or remove a review;
- record, process, or mine information about other users;
- access, retrieve or index any portion of the Sites for purposes of constructing or populating a searchable database of business reviews;
- use the Sites for any commercial purpose not expressly approved by Emojilike in writing, such as to upload, post, email, or otherwise transmit any advertising or promotional materials, including without limitation, “junk mail,” “surveys,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or unauthorized communication;
- collect, store, upload, post, email, or otherwise transmit any data you receive through the Sites, whether in the form of a text, audio communication, photograph, video file, or otherwise;
- upload, post, reproduce, take screenshots, or distribute any information, software, or other material protected by any applicable law including, without limitation, HIPAA and related health information protection laws, copyright and any other intellectual property rights (as well as laws and rights of publicity and privacy) without first obtaining the permission of the owner of such rights or otherwise obtaining the permission of the persons such laws were enacted to protect.
- take screenshots on your mobile device, or take pictures of your phone, while utilizing the Sites;
- make any Sites, portion of a Sites, or Emojilike Content available to, or use any Sites, portion of any Sites for the benefit of, anyone other than You or, if you are a Site Channel Operator, Your patrons, patients, customers, or guests;
- sell, resell, license, sublicense, distribute, rent or lease the Sites, portion of any Sites, or Emojilike Content, or include any Sites in a service bureau or outsourcing offering;
- use the Sites to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
- use the Sites to store or transmit malicious code;
- interfere with or disrupt the integrity or performance of the Sites or third-party data contained therein;
- take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on Emojilike’s technology infrastructure or otherwise make excessive traffic demands;
- attempt to gain unauthorized access to the Sites, portion of any Sites, Emojilike Content, or its related systems or networks;
- permit direct or indirect access to or use of the Sites, portion of the Sites, or Emojilike Content in a way that circumvents a contractual usage limit;
- copy Emojilike Content except as permitted herein;
- access the Sites, portion of the Sites, or Emojilike Content in order to build a competitive product or service;
- decompile, reverse engineer, disassemble, modify, or create derivative works of the Sites, or portion of the Sites;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Sites, including any copy thereof;
- post any Content, commentary, or other information in relation to the Sites unless such information is truthful, and factual, and;
- enter, upload, post, or transmit to the Sites:
- commercial content or other materials or other marketing solicitations unless expressly approved by Us in advance;
- materials, pictures or other content that infringes or potentially violates any copyright, trademark, patent right or other proprietary right of any third party;
- unlawful, defamatory, abusive, threatening, libelous, obscene, pornographic, or other materials, pictures or content that would violate rights of publicity and/or privacy or that would violate any law;
- information that infringes upon the publicity or privacy rights of any person or entity;
- unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other similar materials;
- material that contains a virus or any other thing intended to destroy, limit, or otherwise impair the functionality of any computer software, hardware, or other equipment; and
- information that:
- defames, disparages, or libels a person, company, entity, or service or depicts such person, company, entity, or service in a false light;
- falsely states an affiliation with a person or entity, impersonates any person or entity, or uses an identity that is confusingly similar to another person's identity;
- manipulates identifying factors to disguise the origin of any posted content; iv) Intentionally or unintentionally violates any applicable local, state, federal, or international law;
- harms minors in any way; or
- collects or store personal data about any other user(s) without prior authorization.
If We are required by a third-party to remove Content, or receive information that Content provided by You or to You may violate applicable law or third-party rights, We may so notify You and in such event, You will promptly remove such Content from Your systems. If You do not take required action in accordance with the above, We may disable the applicable Content and/or Service until the potential violation is resolved.
If We, in our sole discretion, determine that you have acted inappropriately, we reserve the right to take down Content, terminate your account, prohibit you from using the Sites, and take appropriate legal actions.
We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.
- INTELLECTUAL PROPERTY
Using our Sites does not give you ownership of any intellectual property rights to the content You access. Other than Your Content, You may not use Content obtained via Our Sites unless you obtain permission from Us or the Content owner, or unless You are otherwise permitted by law.
Title, ownership and all rights and interest including, without limitation, patents, copyrights, trademarks, trade secrets and other intellectual property rights, in and to the Sites and any authorized copies made by You remain with Us and Our licensors. All text, content, and documents on the Sites, any names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other intellectual property appearing on the Sites, and the organization, compilation, look and feel, illustrations, artwork, software and other works on the Sites, excluding Your Content (collectively, included in the "Emojilike Content") are owned by Emojilike and its affiliates or are used with permission or under license from a third party (hereinafter collectively referred to as the "Owner") and are protected under copyright, trademark and other intellectual property and proprietary rights laws. As between Emojilike and You, all right, title and interest in and to the Emojilike Content will at all times remain with Emojilike and/or its Owners. The words "Emojilike" and “Likemoji,” the Emojilike and Likemjoi logo, and other marks, logos and titles are registered and/or are common law trade names, trademarks or service marks of Emojilike. With respect to any logos or marks of any persons, entities, and/or companies commented upon or submitted by users of the Sites, and any copyrighted material submitted by users, such use is at the sole responsibility of such users and is stored upon Emojilike’s servers and/or system solely at the direction of such user, and subject to the protections afforded to Emojilike as an online service provider under Section 512(c) and/or 512(d) of the Digital Millennium Copyright act of 1998. See below for more details on Emojilike’s policies and procedures regarding any issues related thereto.
The structure, organization, and code of the Services are valuable trade secrets of Emojilike and its licensors and You shall keep such trade secrets confidential. The software used to deliver the Sites is neither licensed nor sold. The Emojilike Sites are protected by one or more pending or issued patents.
You acknowledge that at all times, We will remain the owner of all de-identified, raw transactional data and any other de-identified data collected, generated or otherwise derived by Emojilike in the course of providing the Sites, including usage data (“Historical Data”). To the extent it is commercially reasonable to do so, all retained Historical Data will be de-identified in a manner reasonably likely to prevent re-identification.
- ELECTRONIC SIGNATURES
You agree to be bound by any affirmation, assent, or agreement you transmit to Eomjilike using the Application or any other media, including but not limited to any consent you give to receive communications from Eomjilike solely through electronic transmission. You agree that, when in the future you click on an “I agree,” “I consent” or other similarly worded “button” or entry field in the Application, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
- CARRIER CHARGES
Emojilike does not charge you for the Application, but your carrier’s data rates may apply to your use of the Application. You acknowledge that Wi-Fi Internet connectivity or data coverage may be required for the Application to function properly. Emojilike is not responsible for providing such Wi-Fi connectivity or data coverage, and you hereby agree to hold Emojilike complete harmless for any interruption in, and/or for your inability to obtain, Wi-Fi Internet connectivity or data coverage at an Emojilike Channel Operator location or at any other location.
- SECURITY OF DATA TRANSMISSION AND STORAGE
The security of your personal information is important to us. We follow generally accepted industry standards to protect the personal information submitted to us, both during transmission and once we receive it. No method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, we cannot guarantee its absolute security.
Emojilike and, in Emojilike’s sole discretion, Emojilike Channel Operators (and their affiliates, and agents) are permitted, but not obligated, to review or retain your Communications. Emojilike may monitor your Communications and Emojilike Channel Operator communications to evaluate the quality of service you receive, your compliance with the Agreement, the security of the Application, or for other reasons, such as, by way of example only, improving or modifying the Application and its features. You agree that such monitoring activities will not entitle you to any cause of action or other right with respect to the manner in which Emojilike or its affiliates or agents, or Emojilike Channel Operators monitor your Communications, or enforce or fail to enforce the terms of the Agreement. In no event will Emojilike or any of its affiliates or agents be liable for any costs, damages, expenses, or any other liabilities incurred by you as a result of monitoring activities by Emojilike or its affiliates or agents, or by Emojilike Channel Operators.
- 10. DISCLAIMER
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF EMOJILIKE TO YOU. THIS SECTION ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE SITE. BY ACCESSING OR USING THE SITE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SITES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SITES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SITES, THAT THE FUNCTIONS CONTAINED IN OR SITES PERFORMED BY THE SITES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SITES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SITES WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SITES WILL BE CORRECTED, OR THAT THE SITES WILL BE COMPATIBLE OR WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EMOJILIKE OR A EMOJILIKE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SITES AND THEIR FUNCTIONALITY IN THE USERDOCUMENTATION OR ANY COMMUNICATION WITH YOU CONSTITUTE TECHNICAL INFORMATION AND NOT AN EXPRESS WARRANTY OR GUARANTEE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
EMOJILIKE MAKES NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS LISTED ON THE SITE OR THE SITE'S USERS. ACCORDINGLY, EMOJILIKE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS OR OMISSIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER OR BUSINESS MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES OR ADVERTISERS LISTED OR FEATURED ON THE SITE. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE SITE IS AT YOUR OWN DISCRETION AND RISK.
- 11. LIMIATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL EMOJILIKE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SITES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF EMOJILIKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SITE.
EMOJILIKE’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SITE OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO EMOJILIKE IN CONNECTION WITH THE SITE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $100.
BY CONSENTING TO THE TERMS OF THIS AGREEMENT AND USE OF THE SITES, YOU EXPRESSLY CONSENT TO THE LIMITATION OF LIABILITY SET FORTH ABOVE IN THIS PROVISION AND ACKNOWLEDGE AND CONSENT TO THE FOLLOWING:
- Communication through the Sites has certain limitations and may not be as effective as an in person visit to a Channel Operator Location or direct phone call with a Channel Operator representative or agent. Accordingly, this Application is not intended to substitute for such appointments or calls.
- This Application is not intended to be used, nor should it be used for emergency purposes. In the event of an emergency, you shall call 911 or go directly to an emergency provider.
- In the case of use or communication with healthcare associated Channel Operators, Emojilike is not validating, affirming, providing or issuing medical advice, and any communication received or transmitted by you through the Sites should not be construed as such. Furthermore, Emojilike is not responsible for your decision to seek or not seek medical care or choice of specific treatment based on your use of the Sites.
- Delay, interruption or failure may occur in communication through use of the Sites. You shall not hold Emojilike liable for any injury resulting from such delay or failure, for whatever reason, and expressly assume such risk through your use of the Sites.
- 12. INDEMNIFICATION
You shall indemnify, defend, and hold harmless Emojilike and its Affiliates’ directors, officers, employees, contractors and agents (“Indemnified Parties”) from and against any and all claims, suits, proceedings, investigations or actions (collectively, “Claims”) and all resulting losses payable to third parties, settlements, judgments, awards, damages payable to third parties, and any and all legal, accounting and other fees, costs and expenses reasonably incurred in connection with investigating, mitigating or defending any such Claims (collectively, “Losses”), to the extent such Losses are sustained or incurred by any of them and arise out of violation of this Agreement or your access to or use of the Sites. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Content, or Your use of any Sites in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense. Under no circumstances, including but not limited to a negligent act, will Emojilike or its affiliates or agents be liable for any damages of any kind that result from the use of, or the inability to use, the Sites.
- PATIENT CONSENT
This Section, entitled “Patient Consent” pertains to users of the Sites that are Patients and parents, legal representatives, authorized healthcare surrogates, attorneys-in-fact, guardians and other legal caretakers of a Patient. If you are a Patient or the parent, legal representative, authorized healthcare surrogate, attorney-in-fact, guardian or other legal caretaker of a Patient, you hereby express your/the Patient’s wish to use the Sites in connection with one or more of your/the Patient’s interactions at one more Channel Operator locations (the “Healthcare Interaction(s)“). You understand that participation in the Channel Location Encounter is optional and that if you choose to participate in the Channel Location Encounter, confidential information about you/the Patient may be provided to the individuals designated by you/the Patient to receive such information. You hereby authorize Emojilike and the Channel Operator, their respective medical staff, agents, and employees, to disclose information about the Healthcare Interactions to Channel Operator representatives and agents. You hereby release Emojilike and the Channel Operator, and their respective medical staff, agents, officers, directors, and employees from any and all claims related to the release of information concerning you/the Patient to Channel Operator representatives and agents pursuant to this Consent. You hereby release Emojilike and the Channel Operator, and their respective medical staff, agents, officers, directors, and employees from any and all claims related to you/the Patient accidentally or intentionally consenting to release of information to someone other than a Channel Partner representative or agent. You understand that the information released pursuant to this Consent may constitute individually identifiable health information as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA“) and other laws and regulations. You understand that information that has been disclosed is subject to re-disclosure and is no longer protected.
- 14. GENERAL PROVISIONS
This Agreement is the entire agreement between You and Us regarding Your use of the Sites and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
You may not assign the Agreement or any rights or obligations hereunder without the prior written consent of Emojilike. Any such assignment without the prior consent of Emojilike shall be void. Emojilike may assign this Agreement or any rights or obligations hereunder in its sole discretion and without Your prior consent.
No delay or omission by Emojilike to exercise any right or power will impair any such right or power or be construed to be a waiver thereof. A waiver by any party of any of the covenants, conditions, or contracts to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or contract herein contained. No change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the party against which such change, waiver, or discharge is sought to be enforced.
Your access to the Sites as well as the terms and conditions and the agreement they create are governed and interpreted by the laws of the State of California, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of California. The parties hereto hereby consent and agree to the exclusive jurisdiction of the state courts of the State of California for any actions, suits or proceedings arising out of or relating to this Agreement and the matters contemplated hereby (and the parties agree not to commence any action, suit or proceeding relating thereto except in such courts). If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of this Agreement in any other jurisdiction. A printed version of the Emojilike Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service 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 use any Emojilike logo or trademark, whether or not such mark(s) are registered, without prior written approval from Emojilike. This includes use on printed materials of any kind as well as electronic mediums such as internet web pages or email. Furthermore, the use of the Emojilike name (or any derivative thereof) in Your URL, business name, or the names of any add-on products or services You may be offering independent of Emojilike is strictly prohibited. Additionally, using the Emojilike name in paid targeted keyword advertising campaigns on search engines is also prohibited. You shall not use Emojilike’s name, nor any adaptation or variation thereof, in any advertising, promotion or sales literature without Emojilike’s prior written consent in each instance.
Emojilike accepts and responds to any requests such as disclosure, correction, addition, or deletion and veto of use or provision of personal information (the “Disclosure Requests”) from the person who provided his/her personal information. You may update or change your personal information directly online, by emailing [email protected], or by calling (775) 464-1583. To discontinue your account and to have information you maintained in the Sites returned to you, please email [email protected] or call (775) 464-1583. Requests to access, change, or delete your information will be handled within 30 days.
If you believe that any material posted to the Sites constitutes an infringement of a copyright, please provide the following information to our designated copyright agent at [email protected]:
- a) a description of the copyrighted work that you claim has been infringed upon;
b) a description of the allegedly infringing material and where such material is located on the Site;
c) Your mailing address, telephone number, and email address;
d) a statement that You have a good faith belief that the disputed use of the material is not authorized by the copyright holder, its agent, or the law;
e) a statement made under penalty of perjury, that the information provided in the notice to the Site regarding the claimed copyright infringement is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf;
f) an electronic or physical signature of the copyright owner, or of a person designated to act on behalf of the copyright owner; and
g) the signatory's full legal name.