Welcome to Empathic Health! Your use of this website, http://www.empathichealth.community and

related websites, applications and services (collectively, the “Services”) owned, utilized or

operated by Empathic Health, LLC, a Delaware Limited Liability Company (“Empathic”), is

subject to these Terms of Use (the “Terms”) and our Privacy Policy. By accessing or using the

Services, or clicking to accept or agree to the Terms of Use when this option is made available to

you, you accept and agree to be bound by all the terms and conditions of these Terms, and

represent and warrant that you have the right, authority, and capacity to agree to be bound by

these Terms. If you do not agree or do not have the right, authority, and capacity to enter into

these Terms, then you may not access or use the Services.

 

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.

 

If you have any questions about these Terms, please contact Team@empathic.health.

 

1. DEFINITIONS

A. Account. “Empathic Account” means an account you created to access and use the

Services for your specific purposes.

B. 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.

C. 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.

D. 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.

 

2. 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 make a

material change to the Terms, we will make reasonable efforts to notify you. 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.

 

3. 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 service

or portion thereof, and any use of new service 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.

 

4. ACCOUNTS

Portions of the Services can be viewed without an Empathic Account. To receive the full benefit

of the Services we offer, you must create an Empathic Account and provide certain basic

information about yourself. If you do provide us with any information about yourself, you

authorize Empathic to use and disclose it as described in our Privacy Policy.

You agree to keep your Empathic Account information accurate, complete, and current. You are

responsible for the use of your account and shall keep your login credentials confidential and not

let anyone else use it. If you suspect unauthorized activity, please contact us at

Team@empathic.health or through our help center.

You may deactivate your Empathic Account, and thus terminate your access and use of the

Services, at any time for any reason . Empathic reserves the right to deactivate or disable any

user name, password, or other identifier, whether chosen by you or provided by us, at any time in

our sole discretion for any or no reason, including if, in our opinion, you have violated any

provision of these Terms of Use. Empathic may, but is not obligated to, reactivate an Empathic

Account upon written request to Team@empathic.health.

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.

 

5. 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, 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.

 

6. 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.

 

7. 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 s, 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.

 

8. 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.

● Violate the legal rights (including the rights of publicity and privacy) of others or contain

any material that could give rise to any civil or criminal liability under applicable laws or

regulations or that otherwise may be in conflict with these Terms of Use and our Privacy

Policy.

● 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

organization.

● 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.

 

9. YOUR RESPONSIBILITIES

A. 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.

 

B. Prohibited Uses

You may use the Services only for lawful purposes and in accordance with these Terms of Use.

You agree not to use the Services:

 

● 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 send, knowingly receive, upload, download, use, or re-use any material that does not

comply with the Content Standards set out in these Terms of Use.

● 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 manual process to monitor or copy any of the material on the Services, or for any

other purpose not expressly authorized in these Terms of Use, without our prior written

consent.

● 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.

 

C. 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.

 

10. 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.

 

A. 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.

 

Third Party Materials are provided for your convenience only and we are not responsible for

them, including their accuracy, completeness, timeliness, validity, copyright compliance, legality,

decency, quality or any other aspect thereof. You acknowledge and agree that we are not

responsible or liable for the content or accuracy of these Third Party Materials. Third Party

Materials may be subject to and governed by their own terms of use and privacy policies.

Although we attempt to provide accurate and trustworthy Third Party Materials, it is possible

that they may contain materials that are objectionable, unlawful, or inaccurate and we will not be

responsible or liable for the legality or decency of material contained in or accessed through third

party websites, apps or service.

 

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 all 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.

 

B. 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 third 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.

 

11. DISCLAIMER

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 OR 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, OR 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 HER MUST HAVE

MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

 

12. TERMINATION

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 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.

 

13. INDEMNIFICATION

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.

 

14. 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.

 

A. 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.

 

B. 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.

 

C. 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.

 

D. 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.

 

E. 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 is entitled to arbitration;

instead all claims and disputes will be resolved in a court as set forth in (G) below.

 

F. Opt-out. You may opt out of the provisions of this Section by sending written notice of

your decision to opt out to Team@empathic.health, 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.

 

G. Exclusive Venue. If you send the opt out notice pursuant to Section 14 F, 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.

 

15. SEVERABILITY

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.

 

16. MISCELLANEOUS

 

A. 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:

 

i. A physical or signature of a person authorized to act on behalf of the owner of an

exclusive right that is allegedly infringed;

 

ii. 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;

 

iii. 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;

 

iv. Information reasonably sufficient to permit the service provider to contact you, such

as an address, telephone number, and, if available, an electronic mail;

 

v. 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

 

vi. 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.

 

You may send such DMCA notices to our designated agent to Team@empathic.health or:

 

Empathic, Inc.

Attn: DMCA Designated Agent

1020 Granville Avenue

Apartment 205

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.

 

C. Severability

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.

 

D. 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.

 

E. Entire Terms; Waiver

These Terms and any supplemental terms, policies, rules and guidelines posted through the

Services, each of which are incorporated herein by reference, including the Privacy Policy and

the Community Standards, constitute the entire agreement between you and us and supersede all

previous written or oral agreements. To the extent that anything in or associated with the

Services is in conflict or inconsistent with these Terms of Use, these Terms of Use shall take

precedence. The failure of either party to exercise in any respect any right provided for herein

shall not be deemed a waiver of any further rights hereunder.

 

F. Headings

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.

 

G. Assignment

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.

 

H. Eligibility

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: June 24, 2021