Emphatic Health Terms of Service
Last Updated: April 29, 2021
Effective Date: 9/29/2022
THESE TERMS ARE A LEGAL BINDING AGREEMENT BETWEEN YOU AND EMPATHIC. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS AS DETAILED BELOW.
- Account. “Empathic Account” means an account you created to access and use the Services for your specific purposes.
- Cohort Program. “Cohort Program” means the two-week orientation that all new Empathic Account holders must complete before accessing the Services.
- Content. “Content” means text, images, graphics, photos, audio, video, articles, scheduling availability, guidance, advertisements, information, and all other forms of data, communication, or materials. Content may originate from Empathic, a User (as defined below), or a third party.
- Founding Members. “Founding Members” means Users who have completed the Cohort Program prior to July 22, 2022.
- Parties. “You” and “your” refer to you, a user of the Services. A “User” is someone who accesses, visits, or in any way uses the Services whether or not such person registered for an Empathic Account (defined below). “Empathic,” “we,” “us,” and “our” refer to Empathic Health, LLC, and its subsidiaries or affiliates.
- Personal Information. “Personal Information” means, without limitation, your name, mailing address, email address, birthdate, social security number and contact information, medical history and current medical needs, billing information, and other personally identifiable information.
- CHANGES TO TERMS
We may change these Terms at any time without prior notice. The updated Terms will be effective as soon as it is posted here. You agree to review these Terms periodically. If we update these Terms, we will notify you by updating the Effective Date of these Terms listed above. You must accept these changes in order to continue using the Services. You should stop using the Services if you disagree with any changes to the Services or these Terms. By continuing to access and/or use the Services after we post the updated Terms, you agree to be bound by the updated Terms, and if you do not agree to the updated Terms, you must stop using and/or accessing the Services. Any disputes under these Terms will be governed by the version of Terms in effect at the time of the first event that gave rise to the dispute. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
- EMPATHIC’S SERVICES
Empathic’s Services provide products and services, which include without limitation, message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, blogs, comment areas, direct messaging, webinars, functionalities to create, share, rate, review, or otherwise provide feedback on content, other interactive features, and payment processing functionalities. We may from time to time add new features to the Services, substitute a new service for one of the existing services, or discontinue or suspend one or any part of the existing services. Under no circumstances will Empathic be liable for any suspension or discontinuation of any of the services or portion thereof, and any use of new services will be governed by these Terms.
Empathic does not provide, sell, offer to sell, coordinate, or solicit sales or any transactions of psychoactive substances, nor does it make any recommendations or endorsements for any type of therapy or intervention. All content provided through the Services are for general informational purposes only. The Services may be limited or not available at all in some places due to local law or other regulatory restrictions.
You expressly acknowledge and agree that Empathic (i) is a technology company providing certain Services; (ii) does not provide any therapeutic or medical services to individuals; (iii) does not provide, endorse, or recommend any therapeutic or medical services, providers, or substances used in connection with such services.
Once you create an Empathic Account, you shall be deemed an “Empathic Account Holder” and as such you agree to keep your Empathic Account information accurate, complete, and current. You are responsible for the use of your Empathic Accountand shall keep your login credentials confidential and not let anyone else use it. If you suspect unauthorized activity, please contact us at email@example.com or through our help center.
If your Empathic Account is deactivated, then: (a) these Terms will continue to apply and be binding upon you with regard to your prior use of the Services (as well as any subsequent and unauthorized use of the Services), including your indemnification obligations as described herein; and (b) any rights or licenses granted to us under these Terms will survive such termination.
- MEMBER INVESTMENT
For the first two (2) weeks of use of the Services, new Empathic Account Holders will be eligible for a free trial of the Services if you are participating in the Cohort Program. If a new Empathic Account Holder completes the Cohort Program, you will be given the option to subscribe to the Services, via your Empathic Account, by submitting a Member Investment. The Member Investment is a subscription fee that will be billed annually. If you do not complete the Cohort Program, you will not be able to subscribe to the Services and your Empathic Account will be terminated. You will be deemed to have completed the Cohort Program based on our sole discretion.
In order to maintain your Empathic Account, you must submit your Member Investment upon completion of the Cohort Program. You may choose any amount to pay for your annual Member Investment. The foregoing notwithstanding, Founding Members shall submit their Member Investments twelve (12) months after their initial payment thereof, and every twelve (12) months thereafter. For clarity, the resubmission of a Member Investment shall be due twelve (12) months following the payment of your initial Membership Investment, and every twelve (12) months thereafter (the “Renewal Date”) for all Users. If you do not resubmit your Member Investment by the Renewal Date, your Empathic Account will be suspended until you resubmit for Member Investment.
If you do not want to resubmit your Member Investment, you may email and request deactivation of your Empathic Account.
- LICENSE AND ACCESS
Empathic grants you a limited, non-exclusive, revocable, non-sub-licensable, non-transferable license to use the Services in accordance with these Terms for personal, non-commercial purposes. You may use the Services only as permitted by these Terms and applicable law. All rights not expressly granted in these Terms are reserved and you acknowledge that all intellectual property rights, including without limitation, copyrights, trademarks, trade secrets, patent, and any other rights therein, in the Services are owned by Empathic. You may print, download, and store information from the Services for your own convenience, but you may not copy, distribute, republish, sell, or exploit any of the Content, or exploit the Services in whole or in part, for any commercial gain or purpose whatsoever; use data mining, robots or similar data gathering or extraction tools to gather Content from the Services without explicit permission, or otherwise misuse the Services. Any trademarks, logos, service marks, or company or product names displayed through the Services are trademarks of Empathic or third parties, and no right or license is granted to use them. The license to use the Services will terminate if you do not comply with these Terms.
- WE DO NOT PROVIDE MEDICAL ADVICE
Empathic is not a healthcare or medical services provider. Content provided by Empathic, including any information that is health or medically related, is for informational, educational, and payment purposes only. You expressly acknowledge, agree, and understand that any health or medically related statements or content provided on the Services have not been evaluated or approved by the Federal Food and Drug Administration.
WHILE WE HOPE THE CONTENT IS USEFUL IN YOUR HEALING JOURNEY, IT IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. THE SERVICES ARE NOT FOR EMERGENCY MEDICAL OR MENTAL HEALTH NEEDS. IF YOU EXPERIENCE A MEDICAL OR MENTAL HEALTH EMERGENCY, ARE CONTEMPLATING SUICIDE, OR TAKING ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS, IMMEDIATELY CALL A HEALTHCARE PROFESSIONAL AND/OR 911. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. NOTHING STATED, POSTED, OR AVAILABLE THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR OTHER PROFESSIONAL HEALTHCARE ADVICE, OR THE PROVISION OF MEDICAL CARE.
Empathic is not a referral service and does not in any way refer, recommend, or endorse any particular practitioner, healthcare provider, entity, therapeutic modality, procedure, opinion, or other information that may appear through the Services. If you rely on any such Content, you do so solely at your own risk. We encourage you to independently confirm any Content relevant to you with other sources, including but not limited to a healthcare provider, medical associations relevant to the applicable specialty, clinical studies, and the appropriate licensing or certification authorities to verify listed credentials and education.
- CONTENT FOR GENERAL PURPOSES
The Services provide Content for general informational purposes to all Users. While we make reasonable efforts to provide you with accurate Content, we make no guarantees, representations, or warranties, whether expressed or implied, with respect to the timeliness, quality, suitability, accuracy, or completeness of any Content, including but not limited to descriptions of professional qualifications, expertise, quality of work, pricing, or other information. In no event shall we be liable to you or anyone else for any decision made or action taken by you in reliance on any such Content.
Therapies, products, services, or psychoactive substances discussed and/or marketed through the Services are not applicable to all individuals. Any therapy, product, service or psychoactive substance represented through the Services, either paid or unpaid, are presented for your awareness and do not necessarily imply, and we make no claims as to, safety or appropriateness for any particular individual or prediction of effectiveness, outcome, or success. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of its contents.
- CONTENT YOU PROVIDE
You may provide Personal Information, communications, listings, event postings, and other content on the Services pursuant to these content standards (collectively, “Content Standards”). User content must comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, content from Users must not:
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
- YOUR RESPONSIBILITIES
- Your Responsibilities Generally
You are responsible for your use of the Services, including keeping your Empathic Account information accurate, complete, and current, and protecting the confidentiality of your Empathic Account credentials. You may only use the Services for lawful purposes; any unlawful use is unauthorized use of the Services. You may not use the Services in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Services. You may not attempt to gain unauthorized access to any of the Services, user accounts, or computer systems or networks, through hacking, password mining, or any other means. You may not accumulate or index, directly or indirectly, any Content or portion of the Services for any purpose whatsoever. You must also review and comply with the terms set forth in our Community Standards.
In addition to our rights in these Terms, we may take any legal action and implement any technological measures to prevent violations of the restrictions hereunder and to enforce these Terms and our Community Standards.
- Prohibited Uses
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm the Company or Users of the Services, or expose them to liability.
Additionally, you agree not to:
- Use the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
- Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
- Use any device, software, or routine that interferes with the proper working of the Services.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Services.
- Disputes Between Users
If there is a dispute between Users arising out of a transaction hereunder, or between Users and any third party, you agree that Empathic is under no obligation to become involved. In the event that you have a dispute with one or more other Users or third party, you release Empathic, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
- THIRD-PARTY LINKS AND SERVICES
If the Services contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to these Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
- Third-Party Materials
Empathic does not review, examine, verify, warrant, or endorse any Content, product, or service from third parties (collectively, “Third-Party Materials”), whether accessible by or through third-party websites, apps, or service, to which the Services link, display, include, or otherwise make available.
Your interactions with entities and/or individuals found on or through our Services, including payment and delivery of goods or service, and any other terms, conditions, warranties, or representations associated with such dealing, are solely between you and such entities and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction in connection with any Third-Party Materials.
By using the Services, you hereby release and hold Empathic, including its officers, employees, agents, successors, and assigns, harmless from any past, present, and future dispute, claim controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature, that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any transactions or dealings in connection with your use of Third-Party Materials.
- Third-Party Software
We may incorporate third-party software as part of certain of the Services, including without limitation open source third-party software. Your use of such hird-party software is subject to any and all applicable additional terms and conditions governing such use provided by the third-party software provider. Where applicable, we may provide additional notices relating to the third-party software, such as attribution and disclaimer notices applicable to the third-party software.
We created Empathic to be a warm and welcoming online community for sharing information, and we want your experience with Empathic to be exceptional. While we work hard to make that happen, you acknowledge that we have no control over, and no duty to take any action regarding: (a) which users gain access to the Services, (b) what Content you access, (c) what effect the Content may have on you, (d) how you may interpret or use the Content, or (e) what actions you may take as a result of having been exposed to the Content. You release us from all liability for your use or inability to use any Content. We and our partners, parent, subsidiaries, or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives, and agents, and each of their respective successors and assigns (Empathic and all such parties together, the “Empathic Parties”) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services, and the Empathic Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We have no special relationship with or fiduciary duty to you.
ALL MATERIALS ON THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WE MAKE NO EXPRESS OR IMPLIED WARRANTY OR GUARANTEES OF ANY KIND. TO THE EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE, OR ACCURATE OR WILL MEET YOUR REQUIREMENTS OR NEEDS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF INFORMATION PROVIDED BY USERS OF THE SERVICES OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EMPATHIC MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE, AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. EMPATHIC DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED, ERROR-FREE, BUG-FREE, OR FREE FROM DEFECTS, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICES OR SOFTWARE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS.
EMPATHIC MAKES NO REPRESENTATION OR WARRANTY AS TO WHETHER IT IS LEGAL FOR YOU TO ACCESS OUR SITE OR USE OUR SERVICES. EMPATHIC DOES NOT ENCOURAGE ILLEGAL ACTIVITY, INCLUDING BUT NOT LIMITED TO THE ILLEGAL SALE, PURCHASE, OR USE OF CONTROLLED SUBSTANCES. USING THE SERVICES FOR ANY SUCH ACTIVITY IS A VIOLATION OF THESE TERMS AND SHALL RESULT IN TERMINATION OF THE EMPATHIC ACCOUNT OR ACCOUNTS ASSOCIATED WITH SUCH ACTIVITY AND LEGAL ACTIONS AS REQUIRED BY LAW.
GENERAL LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL ANY OF THE EMPATHIC PARTIES BE LIABLE TO YOU, OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ANY SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, MEDICAL MALPRACTICE OR NEGLIGENCE OF HEALTHCARE PROVIDERS UTILIZED THROUGH USE OF THE SERVICES, OR ANY MATTER BEYOND OUR REASONABLE CONTROL, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED IN ACCORDANCE HEREIN TO THE EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
If you’re not using the Services in accordance with these Terms, we reserve the right to terminate, suspend, and/or deactivate your Empathic Account immediately, without notice, if there has been a violation of these Terms, our Community Standards, or other policies and terms posted through the Services by you or by someone using your Empathic Account with your authorization. We may also terminate, suspend, or deactivate your Empathic Account for any other reason, including inactivity for an extended period. Empathic shall not be liable to you or any third party for any termination, suspension, or deactivation of your access to the Services. Further, you agree not to attempt to use the Services after any such termination, suspension, or deactivation, except where deactivation is due solely to inactivity, and you are permitted to create another Empathic Account. Account termination may result in the destruction of any Content associated with your Empathic Account. These Terms will continue to apply and be binding upon you with regard to your prior use of the Services, as well as any subsequent and unauthorized use of the Services, including any other provisions that, by their nature, should survive termination of these Terms shall survive any termination or expiration of these Terms.
Empathic reserves the right to investigate and, at our discretion, take appropriate legal action against anyone who violates these Terms, including without limitation, removing any offending communication or information from the Services, terminating the Empathic Account of such violators, and/or blocking your use of the Services.
You agree to defend, indemnify, and hold harmless the Empathic Parties from all liabilities, claims, damages (actual and consequential), demands, and expenses, including reasonable attorney’s fees, that arise from or are related to (a) your use of the Services; (b) the Content you provided; (c) your violation of these Terms (including without limitation these Terms and the Community Standards); (d) the violation of any intellectual property or other right of any person or entity; or (e) by any person using your Empathic Account without authorization or other misuse of the Services. The foregoing indemnification obligation does not apply to liabilities, claims, and expenses arising as a result of our own gross negligence or intentional misconduct.
- ARBITRATION AGREEMENT
We hope that we can work out any disagreements you may have with Empathic. If there is a dispute that needs to be further resolved, that process will take place according to this section. Please read the following ARBITRATION AGREEMENT carefully, because it requires you to arbitrate certain disputes and claims with Empathic and limits the manner in which you can seek relief from Empathic. Both you and Empathic acknowledge and agree that for the purpose of any dispute arising out of relating to the subject matter of these Terms, Empathic’s officers, directors, employees, and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right, and will be deemed to have accepted the right, to enforce these Terms against you as a third-party beneficiary hereof.
- Arbitration Rules; Applicability of Arbitration Terms. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Los Angeles County, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
- Costs. The Rules will govern payment of all arbitration fees. Empathic shall seek its attorneys’ fees and costs in arbitration if the arbitrator determines that your claim is frivolous and to the extent permitted by law.
- Small Claims Court; Infringement. Either you or Empathic may assert claims, if they qualify, in small claims court in Los Angeles County, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
- Waiver of Jury Trial. You and Empathic waive all rights to have a trial in front of a judge or jury. Instead, you and Empathic are choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Empathic over whether to vacate or enforce an arbitration award, you and Empathic waive all rights to a jury trial and elect instead to have the dispute adjudicated by a bench trial.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Empathic are entitled to arbitration; instead, all claims and disputes will be resolved in a court as set forth in (G) below.
- Opt-out. You may opt out of the provisions of this Section by sending written notice of your decision to opt out to firstname.lastname@example.org, postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of the arbitration agreement in these Terms.
- Exclusive Venue. If you send the opt out notice pursuant to Section 14, and/or in any circumstances where the foregoing arbitration agreement permits either you or Empathic to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Empathic agree that any judicial proceeding, other than small claims actions, will be brought in the state or federal courts located in, respectively, Los Angeles County, California, or the federal district in which that county falls.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section will be null and void. This arbitration agreement will survive the termination of your relationship with Empathic.
- Copyright Disputes.
If you are a copyright owner of an agent thereof, and believe in good faith that a user may be infringing upon your copyrights, you can notify us of such a claim pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. Sec. 512(c), by providing our designated agent with a written notice containing the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A 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.
Attn: DMCA Designated Agent
1020 Granville Avenue
Los Angeles, CA 90049
Such notices and counter-notices must meet statutory requirements imposed by the DMCA, so we suggest you consult with a legal advisor before filing a notice. Please be aware that there are penalties for false claims under the DMCA.
You acknowledge and are aware that upon receiving a notice for a claim of copyright infringement, we may immediately remove or disable access to the identified materials without liability to you or any other party. We may, in our sole discretion, terminate the Services for any repeat copyright infringers or users who receive repeat claims of copyright infringement.
- B. Limitation of Claims
No action arising under or in connection with these Terms, regardless of the form, may be brought by you more than one (1) year after the cause of action arose; actions brought thereafter are forever barred.
In the event any one or more of the provisions of these Terms shall for any reason be held to be invalid, illegal, or unenforceable, the remaining provisions of these Terms shall be unimpaired. Further, the invalid, illegal, or unenforceable provision shall be replaced by a provision that comes closest to the intention of the parties that underlie the invalid, illegal, or unenforceable provision, except to the extent no such provision is valid, legal, and enforceable, in which case such invalid, illegal, or unenforceable provision shall be limited or eliminated to the minimum extent necessary so that the other provisions of these Terms remain in full force and effect and enforceable.
- Governing Law
Empathic may be accessed from all 50 states and other countries. By accessing and using the Services, you agree that these Terms shall be deemed to have been entered into and shall be construed and enforced in accordance with the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without giving effect to the state’s conflicts of law statute.
- Entire Terms; Waiver
The headings of the sections of these Terms are for convenience only, do not form a part hereof, and in no way limit, define, describe, modify, interpret, or construe the meaning, scope, or intent of these Terms or any terms or conditions therein.
We may assign these Terms at any time, including, without limitation, to any parent, subsidiary, or any affiliated company, or as part of the sale to, merger with, or other transfer of our business or any assets to another entity. You may not assign, transfer, or sublicense these Terms to anyone else and any attempt to do so in violation of this section shall be null and void.
You must be 18 years of age or over, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to create an Empathic Account or use the Services on your own. Those under the age of 13 may not use the Services. If you are between the ages of 13 and 18 or the applicable legal age in your jurisdiction, you can use the Services only under the supervision of your parent or guardian who has agreed to these Terms. By using the Services on behalf of a minor child, you represent and warrant that you are the parent or legal guardian of such child, and that all references in these Terms to “you” shall refer to such child or such other individual on whose behalf you have authorization to enter into these Terms and you in your capacity as the parent or legal guardian of such child or as the authorized party of such individual.
If you do not qualify under these Terms, you may not use the Services. Use of the Services is void where prohibited by applicable law, and the right to access the Services is revoked in such jurisdictions. By using the Services, you represent and warrant that you have the right, authority, and capacity to enter into these Terms. The Services are administered in the U.S. and intended primarily for U.S. users only; any use outside of the U.S. or use related to activities outside of the U.S. is prohibited and at the user’s own risk. Users are responsible for compliance with any local, state, or federal laws applicable to their use of the Services.
Last Updated: September 29, 2022