Terms of Use

TERMS OF USE

(Last Updated: Mar 6, 2017)

PLEASE READ THESE TERMS OF USE AND OUR PRIVACY POLICY CAREFULLY. BY ACCESSING, BROWSING OR OTHERWISE USING OUR SERVICES YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE, PLEASE DO NOT USE OUR SERVICES.

[NOTE REGARDING EMOTEYLY IOS BETA: USAGE OF THE EMOTELY IOS BETA IS SUBJECT TO THESE TERMS. IN ADDITION, COMMUNITY AND USAGE GUIDELINES ARE BEING FURTHER DEVELOPED DURING THE BETA PERIOD AND YOU SHOULD EXPECT THESE TERMS TO CHANGE PRIOR TO BEING RELEASED TO THE IOS APP STORE. ANY AND ALL INFORMATION YOU PROVIDE, INCLUDING YOUR USERNAME, MAY BE DELETED AT THE CONCLUSION OF THE BETA PERIOD.]

SECTION 1. GENERAL

Emotely, Inc. (“Emotely”, “we”, or “our”) provides its mobile applications, websites, emails, text messages, blogs and social media accounts (collectively, “Services”) to you subject to the notices, terms, and conditions set forth in these Terms of Use (the "Terms"). Emotely reserves the right to change the Services, the Terms and the Privacy Policy at any time.

SECTION 2. PRIVACY POLICY

Our Privacy Policy, which also governs your use of the Services and is incorporated herein by reference, explains our practices with respect to the collection, use, and protection of your personal information.

SECTION 3: YOUR ACCOUNT

To access certain areas and features of the Services, you will be required to register an account. By registering for any Emotely Service you agree to provide true, accurate, current, and complete information about yourself as prompted, and you further agree to update such information as needed to keep it true, accurate, current, and complete. Your account is void where prohibited by law. Emotely reserves the right to revoke or prohibit your account for any reason at any time, without notice, but, in particular, upon any violation of any of these Terms or the Privacy Policy.

SECTION 4. USE OF THE SERVICES

Emotely hereby grants you a limited, revocable, non-transferable and non-exclusive license to access and use the Services subject to the following conditions:

You represent and warrant that you are at least 13 years old.

You may not reproduce, download, publish, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise distribute or exploit the Services or any portion thereof unless expressly permitted in writing by Emotely in advance.

You may not deep-link to the Services for any purpose, unless specifically and expressly authorized to do so in writing by Emotely in advance;

YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THE SERVICES BY ANYONE USING THE PASSWORD AND IDENTIFICATION ORIGINALLY ASSIGNED TO YOU, WHETHER OR NOT SUCH ACCESS TO AND USE OF THE SERVICES IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE, AND YOU AGREE TO INDEMNIFY , DEFEND AND HOLD EMOTELY AND ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ALL DAMAGES ARISING FROM SUCH ACCESS AND/OR USE. You are solely responsible for protecting the security and confidentiality of the password and identification assigned to you. You must immediately notify Emotely of any unauthorized use of your password or identification or any other breach or threatened breach of this Services’ security.

SECTION 5. INTELLECTUAL PROPERTY

All information and content included in Services (such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software), the compilation of all content on the Services and all software used in the Services (collectively, the "Content") are the property of Emotely or its content suppliers and are protected by U.S. and international copyright laws. You may not copy, modify, transmit, create derivative works from, or make use of any Content without first obtaining permission from Emotely, or in the case of licensed content, the applicable content owner.

SECTION 6. SUBMITTED CONTENT

The Terms apply to any images, graphics, photographs, illustrations, text, recommendations, reviews, opinions, logos, information, data, software, messages, ideas, comments, questions, or other materials received by Emotely from you (collectively "Submitted Content").

Emotely does claim ownership of any of your Submitted Content. Rather, if you provide Submitted Content, you agree to grant Emotely a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, publish, translate, create derivative works from, distribute, or display such Submitted Content in any form or technology, now known or hereafter created, subject to the terms of our Privacy Policy which explains how Emotely may use your Submitted Content.

Emotely shall have the right (but not the obligation) to, from time to time monitor and review Submitted Content and any other information transmitted or received through the Services and reserves the right to censor, edit, remove or prohibit the transmission or receipt of any information that Emotely deems inappropriate or in violation of the Terms. During monitoring, the Submitted Content may be examined, recorded or copied, and your use of the Services constitutes your consent to such monitoring and review.

You agree not to upload, distribute, or otherwise publish through the Services any Submitted Content that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, harassing, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties; or (d) publicizes or promotes any third party commercial activities.

You agree that you are responsible for the Submitted Content, and Emotely disclaims any responsibility and assumes no liability with respect to Submitted Content. By providing Submitted Content, you warrant that: (a) you are the owner of such Submitted Content, or have been granted all the rights necessary from the owner thereof to provide such Submitted Content to Emotely and for the use by Emotely as stated herein, and (b) the use of such Submitted Content by Emotely will not infringe the intellectual property rights of or otherwise violate the rights of any third party. You shall be solely liable for any damages resulting from any infringement of copyright, trademark, or other proprietary right or any other harm resulting from your use of the Services.

SECTION 7. REPORTING COPYRIGHT INFRINGEMENTS

If you are a copyright owner or an agent thereof and believe that any Submitted Content or Content infringes upon your copyright, you may submit a written notification pursuant to the Digital Millennium Copyright Act ("DMCA") (see 17 U.S.C. 512(c)(3) for further information) by providing our Copyright Agent (listed below) with the following information: (i) an electronic or physical signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) a description of the copyrighted work claimed to have been infringed or if multiple copyrighted works are covered by a notification, a representative list of such works; (iii) a description of the location in the Services of the allegedly infringing material(s); (iv) your address, telephone number, and email address; (v) a written statement that you have a good faith belief that use of the material(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a written statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Emotely’s designated Copyright Agent for notice of claims of infringement is:

By Mail: Miguel J. Vega, Cooley LLP, 500 Boylston Street Boston, MA 02116-3736
By Email: notices@emotely.com

If you believe that any Submitted Content of yours that was removed is not infringing, or that you have the appropriate rights from the copyright owner or third party, or pursuant to the law, to post and use the material in your Submitted Content, you may send a counter notification containing the following information to the Copyright Agent: (i) your physical or electronic signature; (ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled; (iii) a statement (under penalty of perjury) that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the material; and your name, address, telephone number, and e-mail address, along with a statement that you consent to the jurisdiction of the federal court in the State of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter notification is received by the Copyright Agent, Emotely may send a copy of the such counter notification to the original notifying party. The original notifying party shall have ten (10) business days to file an action for copyright infringement and seek a court order against the content provider or user posting such material. If no such infringement action is filed within such 10 business days, Emotely may, in its sole discretion, reinstate the removed material or cease disabling such material.

In accordance with the DMCA and other applicable law, Emotely may, in appropriate circumstances, terminate access, at Emotely’s sole discretion, of any registered user that Emotely finds to be a repeat infringer of others copyrights. Emotely may also, in its sole discretion, limit or fully terminate access to any Service of any user infringing the intellectual property rights of others, regardless of whether such user is repeat offender or not.

SECTION 8. INTERNATIONAL ACCESS

The Services may be accessed from countries other than the United States. However, if you access and use the Services outside the United States you are responsible for complying with all laws and regulations applicable in that jurisdiction, and you may not be protected by consumer protections and data privacy regulations applicable in your home jurisdiction. By registering for and using the Service you consent to the transfer of your information to the United States.

SECTION 9. LINKS

The Services may contain links to other sites on the Internet that are owned and operated by third parties. These third party websites may have terms of use and privacy policies that differ from ours. You acknowledge and agree that we are not responsible for the operation of or content located on or through any such third party website.

SECTION 10. NO INTERFERENCE

You agree not to use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Services or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Services or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Services.

You agree not to attempt to gain unauthorized access to any portion or feature of the Services, or any other systems or networks connected to the Services or to any Emotely server, by hacking, password "mining" or any other illegitimate means.

You agree not to probe, scan or test the vulnerability of the Services or any network connected to the Services, nor breach the security or authentication measures on the Services or any network connected to the Services. You agree not to reverse look-up, trace or seek to trace any information on any other user of or visitor to the Services, or any other customer of Emotely to its source, or exploit the Services or any information made available or offered by or through the Services, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Services.

You agree not to take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or networks, or any systems or networks connected to the Services.

You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Services, or with any other person's use of the Services.

SECTION 11. DISCLAIMER AND LIMITATION OF LIABILITY

THE SERVICES AND THE CONTENT IS PROVIDED BY EMOTELY EXCLUSIVELY ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EMOTELY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EMOTELY MAKES NO WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF THE CONTENT, WHETHER SUPPLIED BY EMOTELY, ITS AFFILIATES, LICENSORS OR ANY OTHER SOURCES. EMOTELY MAKES NO WARRANTY THAT USE OF THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT USE OF THE SERVICES OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU.

Some jurisdictions may not allow the exclusion of implied warranties, and such exclusions may therefore not apply to you. In such instances, we grant the minimum express or implied warranties as required by law.

UNDER NO CIRCUMSTANCES WILL EMOTELY BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON CONTENT OBTAINED THROUGH THE SERVICE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SERVICE.

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER EMOTELY, ITS AFFILIATES, NOR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS OR REPRESENTATIVES SHALL BE LIABLE FOR (1) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THE USE, MISUSE, OR INABILITY TO USE THE SERVICES OR THE CONTENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE), (2) DAMAGES IN EXCESS OF AMOUNTS ACTUALLY PAID BY YOU TO EMOTELY THROUGH THE USE OF THE SERVICES.

SECTION 12. ARBITRATION OF DISPUTES

We require your agreement to the following dispute resolution provisions if you wish to use the Services. We do this in order to ensure a quick, fair and cost-effective mechanism to resolve any disputes that might arise. If you would prefer to reserve your rights to have any disputes with your social media service provider resolved by a court (other than a small claims court), or a jury, or to bring a class action to assert claims, please use other social media services.

You and Emotely agree that all disputes or controversies between you and Emotely, and the issue of arbitrability, shall be resolved by final and binding arbitration under the rules of the American Arbitration Association (the "AAA") applicable to consumer related disputes, and in accordance with the Federal Arbitration Act. If you give Emotely written notice of a claim before you start an arbitration, and Emotely does not settle your claim in a manner satisfactory to you, Emotely will bear (or reimburse you for) all filing fees and other fees of the AAA, unless the arbitrator determines that your claims are frivolous. You will have the right to choose the office of the AAA where any hearings will be held, whether the arbitration is brought by you or by Emotely. In accordance with the rules of the AAA, you may choose to bring a claim instead in a small claims court having jurisdiction, but in that case Emotely will not have any obligation to bear or reimburse you for court fees, except as determined by the court.

SECTION 13. MISCELLANEOUS

The Terms and their interpretation shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of laws provisions.

The Terms contain the sole and entire agreement between the parties with respect to the Services and supersedes any and all other prior written or oral agreements between them.

No waiver on the part of Emotely of any of the Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of Emotely.

We reserve the right to change, modify, add to, subtract from, or otherwise amend the Terms at any time. Such amendments shall be effective upon posting on this web page. You agree to review the Terms periodically to become aware of such revisions. We may also email you regarding changes to the Terms in certain circumstances. If at any time the Terms are no longer acceptable to you, you must immediately cease all use of the Services.