Effective Date: 14 February 2022
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERM FOR SUCH SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT EMOTOUS’ THEN-CURRENT FEES FOR SUCH SERVICES UNLESS YOU [DECLINE TO RENEW YOUR SUBSCRIPTION] IN ACCORDANCE WITH SECTION 10.8 (AUTOMATIC RENEWAL) BELOW. PLEASE NOTE THAT CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER WILL BE RESOLVED AS OUTLINED IN SECTION 19 OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR ASSERTED PRIOR TO THIS AGREEMENT. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF SOUTH AUSTRALIA, CONSISTENT WITH AUSTRALIAN ARBITRATION LAWS, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
1. Use of the Services and Emotous Properties.
The Services, Websites, Applications, and the information and content available with our Services, on Websites and in the Applications (as these terms are defined herein) (collectively, the “Emotous Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Emotous grants you a limited license to reproduce portions of the Emotous Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Emotous in a separate license, your right to use any Emotous Properties is subject to the Terms. 1.1 Our Services. We provide Services to individuals and organizations. Our Services include: leadership development, emotional intelligence, and other self development course offerings; access to the Emotous behavioural assessment, which measures emotional intelligence, behaviours, and a variety of different competencies equips people with a frameworks for behavioural change and self-improvement and; our Applications that provides Registered Users (as defined below) with access to learning events, resources and proprietary materials; and an online function to facilitate the purchase of our and our partner’s products and services (“Products”).
1.2 Application License. Subject to your compliance with the Terms, Emotous grants you a limited non-exclusive, non-transferable, non sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple or Andriod App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application and use the Application as permitted by the “Usage Rules” set forth in the App Store Terms of Service.
1.3 Updates. You understand that the Emotous Properties are evolving. As a result, Emotous may require you to accept updates to the Emotous Properties that you have installed on your computer or mobile device. You acknowledge and agree that Emotous may update the Emotous Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Emotous Properties.
1.4 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, or otherwise commercially exploit Emotous Properties or any portion of the Emotous Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Emotous Properties (including images, text, page layout or form) of Emotous; (c) you shall not use any metatags or other “hidden text” using Emotous’ name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Emotous Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Emotous Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Emotous Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other
proprietary markings contained on or in the Emotous Properties. Any future release, update or other addition to the Emotous Properties shall be subject to the Terms. Emotous, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Emotous Properties terminates the licenses granted by Emotous pursuant to the Terms.
1.5 Third-Party Materials. As a part of the Emotous Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Emotous to monitor such materials and that you access these materials at your own risk.
2.1 Registering Your Account. In order to access certain features of the Emotous Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website or other third party platform supporting Emotous’ services (“Account”), has a valid account on the social networking service (“SNS”) through which the User has connected to the Website or other third party platform supporting Emotous’ services (each such account, a “Third-Party Account”), or has an account with the provider of the Application for the User’s mobile device.
2.2 Access Through a SNS. If you access the Emotous Properties through a SNS as part of the functionality of the Website, the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing Emotous to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Emotous and/or grant Emotous access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Emotous to pay any fees or making Emotous subject to any usage limitations imposed by such third-party service providers. By granting Emotous access to any Third-Party Accounts, you understand that Emotous may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Emotous Properties (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Emotous Properties via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Emotous Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Emotous’ access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Emotous Properties. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND EMOTOUS DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Emotous makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Emotous is not responsible for any SNS Content.
2.3 Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Emotous Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Emotous Properties by minors. You are responsible for any use of your credit card or other payment instrument (e.g., PayPal) by minors. You may not share your Account or password with anyone, and you agree to (y) notify Emotous immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Emotous has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Emotous has the right to suspend or terminate your Account and refuse any and all current or future use of the Emotous Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Emotous reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Emotous Properties if you have been previously removed by Emotous, or if you have been previously banned from any of the Emotous Properties.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Emotous.
2.5 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Emotous Properties, including but not limited to, a mobile device that is suitable to connect with and use the Emotous Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Emotous Properties.
3. Emotous Communications.
3.1 Generally. You may have the opportunity to provide us with your e-mail address. By providing your email address to us, you consent to receiving email communications from Emotous. Communications from us and our affiliated companies may include communications about your use of the Services, updates concerning new and existing features of the Services, and news concerning Emotous and industry developments. If you subscribe to our mailing list, newsletter or otherwise opt-in to receive marketing or promotional communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SERVICES.
3.2 Electronic Communications. The communications between you and Emotous use electronic means, whether you use the Website or send us emails, or whether Emotous posts notices on the Website or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Emotous in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Emotous provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
4. Responsibility for Content.
4.1 Types of Content. You acknowledge that all Content, including the Emotous Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Emotous, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Emotous Properties (“Your Content”), and that you and other Users of the Emotous Properties, and not Emotous, are similarly responsible for all Content they Make Available through the Emotous Properties (“User Content”).
4.2 No Obligation to Pre-Screen Content. You acknowledge that Emotous has no obligation to pre-screen Content (including, but not limited to, User Content), although Emotous reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content. In the event that Emotous pre-screens, refuses or removes any Content, you acknowledge that Emotous will do so for Emotous’ benefit, not yours. Without limiting the foregoing, Emotous shall have the right to remove any Content that violates the Terms or is otherwise
objectionable. In addition, Emotous reserves the right to: (a) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Emotous Properties or the public, or could create liability for Emotous; (b) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Emotous Properties; and/or (d) terminate or suspend your access to all or part of the Emotous Properties for any or no reason, including without limitation, any violation of these Terms.
4.3 Storage. Unless expressly agreed to by Emotous in writing elsewhere, Emotous has no obligation to store any of Your Content that you Make Available on the Emotous Properties. Emotous has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Emotous Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Emotous retains the right to create reasonable limits on Emotous’ use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Emotous in its sole discretion.
5.1 Emotous Properties. Except with respect to Your Content and User Content, you agree that Emotous and its suppliers own all rights, title and interest in the Emotous Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Emotous Properties.
5.2 Trademarks. EMOTOUS owns and retains all right title and interest in our trademarks, graphics, logos, service marks, trade names and other brand elements (collectively “Trademarks”) used on or in connection with the Emotous Properties or in connection with the Services. Such Trademarks may not be used without permission, including in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Emotous Properties are the property of their respective owners.
5.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Emotous Properties.
5.4 Your Content. Emotous does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Emotous Properties, you represent that you own and/or have all rights and perpetual, irrevocable licenses necessary to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed.
5.5 License to Your Content. Subject to any applicable account settings that you select, you grant Emotous a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Emotous Properties to you and to our other Users. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Emotous, are responsible for all of Your Content that you Make Available on or in the Emotous Properties.
5.6 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Emotous Properties, you hereby expressly permit Emotous to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
5.7 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
5.8 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Emotous (“Feedback”) is at your own risk and that Emotous has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Emotous a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, modify, create derivative works of, and otherwise exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Emotous Properties.
6. User Conduct.
6.1 As a condition of use, you agree not to use the Emotous Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through the Emotous Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Emotous’ prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Emotous; (vi) interferes with or attempts to interfere with the proper functioning of the Emotous Properties or uses the Emotous Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engages in, any potentially harmful acts that are directed against the Emotous Properties, including but not limited to violating or attempting to violate any security features of the Emotous Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Emotous Properties, introducing viruses, worms, or similar harmful code into the Emotous Properties, or interfering or attempting to interfere with use of the Emotous Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Emotous Properties.
Emotous may, but is not obligated to, monitor or review the Emotous Properties and Content at any time. Without limiting the foregoing, Emotous shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Emotous does not generally monitor user activity occurring in connection with the Emotous Properties or Content, if Emotous becomes aware of any possible violations by you of any provision of the Terms, Emotous reserves the right to investigate such violations, and Emotous may, at its sole discretion, immediately terminate your license to use the Emotous Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
8. Interactions with Other Users.
8.1 User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Emotous reserves the right, but has no obligation, to intercede in such disputes. You agree that Emotous will not be responsible for any liability incurred as the result of such interactions.
8.2 Content Provided by Other Users. The Emotous Properties may contain User Content provided by other Users. Emotous is not responsible for and does not control User Content. Emotous has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
9. Third-Party Services.
9.1 Third-Party Websites, Applications & Ads. The Emotous Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Emotous Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Emotous. Emotous is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Emotous provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Services, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and Emotous and not with the App Store. Emotous, not the App Store, is solely responsible for the Emotous Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Emotous Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Emotous Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
10. Fees and Purchase Terms.
10.1 General Purpose of Terms: Sale of Service, not Software. The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Emotous’ software, and, furthermore, any use of Emotous’ software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
10.2 Orders and Fees. You may place an order for Services or Products sold through our Website (each an “Order”).
10.4 Service Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Fee”) at the time you create your Account and select your monthly or annual package (each, a “Service Commencement Date”). Except as set forth in the Terms, all fees for the Services are non-refundable. No contract will exist between you and Emotous for the Services until Emotous accepts your Order by a confirmatory e mail or other means of communication. By subscribing to a Service for which Emotous charges monthly fees during your subscription term, you authorize Emotous to charge your Payment Method now, and again at the beginning of each month during such subscription term.
10.5 Taxes. Emotous’ fees are net of any applicable GST/ Sales Tax. If any Services, or payments for any Services, under the Terms are subject to GST/ Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Emotous, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Emotous for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Emotous is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
10.6 Withholding Taxes. You agree to make all payments of fees to Emotous free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Emotous will be your sole responsibility, and you will provide Emotous with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
10.7 Automatic Renewal. In some cases, your subscription will continue indefinitely until terminated in accordance with the Agreement. After the Initial Term, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Emotous’ then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Company that your subscription will be automatically renewed, you will have thirty (30) days from the date of the Company notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page or by notifying Emotous at “email@example.com if an account that you can log into does not exist. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Emotous at firstname.lastname@example.org. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of
any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Emotous to charge your Payment Method now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Emotous does not receive payment from your Payment Method, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Emotous may either terminate or suspend your subscription and continue to attempt to charge your Payment Method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
10.8 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: email@example.com.
10.9 Cancellation Period. If you are a resident of the United Kingdom then this Section 10.9 applies to you. You have a legal right to cancel your subscription (including any renewal subscription) until 14 days after the day on which the subscription was entered into. This means that during that period if you change your mind or decide for any other reason that you do not want to continue receiving the Services, you can notify us of your decision to cancel your subscription and receive a refund. Advice about your legal right to cancel your subscription terms as described in the previous sentence is available from your local Citizens’ Advice Bureau or Trading Standards office. To cancel a subscription, you just need to let us know that you have decided to cancel. The easiest way to do this is to email us. If you cancel your subscription we will refund you the price paid for the subscription.
11. Terms of Sale.
These Terms shall govern any purchase Products you make through the Website, or through any other Service offering.
11.1 Order Acceptance. When you place an Order, we will confirm your address by sending an email to the email address you have provided and/or calling you to verify your Order. Your placement of an Order through our Website is an offer to purchase the Products ordered and we may accept your Order by processing your payment and shipping the Product(s) (if applicable). Your receipt of an electronic or other form of Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. Your Order will be deemed accepted by Emotous upon our delivery of the Products that you have ordered. We may require additional verifications or information before accepting any Order.
11.2 Shipping. Emotous ships the Products purchased to street addresses and PO Boxes worldwide except for countries where international purchases and shipping from the United States is not allowed by law. Not all delivery options are available in all areas. Not all Products are available in all areas. The risk of loss and title for items you purchase pass to you upon our delivery of the items to the carrier. Replacement of Products and credits for shipped Products claimed as not received are subject to investigation, which may include notifying the carrier. Your Product shipment will be delivered via UPS or any other carrier we may engage. You will receive email confirmation(s) as your order ships from Emotous or a third party authorized by us. We do not allow address changes after we send such email confirmation of your order shipment
11.3 Tracking your order. As your Order ships, we will send you an email providing the shipment tracking number(s). To see the detailed progress of your shipment, click on the tracking number link provided in your email. Please note that tracking detail may not be active immediately with FedEx or any other carrier we engage; in that case, check back in several hours or the following day.
11.4 Return Policy. All Orders are non-refundable. You may request a return for the Product by emailing us at Info@emotous.com.
11.5 Restriction on Resale. You acknowledge that the Services are only intended to be used to purchase Products for your own personal or internal business use. Products sold on the Website are not authorized for resale. Emotous reserves the right to decline any Order that we deem to possess characteristics of reselling.
You agree to indemnify and hold Emotous, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Emotous Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Emotous Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Emotous reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Emotous in asserting any available defenses. This provision does not require you to indemnify any of the Emotous Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Emotous Properties.
13. Disclaimer of Warranties and Conditions.
13.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE EMOTOUS PROPERTIES IS AT YOUR SOLE RISK, AND THE EMOTOUS PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND NO GUARANTEES REGARDING OUTCOMES. EMOTOUS PARTIES EXPRESSLY DISCLAIM ALL TERMS, WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. This Section 13 (Disclaimer of Warranties and Conditions) does not affect in any way our return policy or limited warranty for Products purchased through the Services. If for any reason you are not satisfied with a purchase you make on the Website, please contact us via email at firstname.lastname@example.org about a return.
(a) EMOTOUS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE EMOTOUS PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE EMOTOUS PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE EMOTOUS PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE EMOTOUS PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE EMOTOUS PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. (c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. EMOTOUS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM EMOTOUS OR THROUGH THE EMOTOUS PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, Emotous may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Emotous’ sole discretion. The provisions of this section apply with full force to such features or tools.
13.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT EMOTOUS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD EMOTOUS PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE WEBSITE, AND THAT THE ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
13.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE EMOTOUS PROPERTIES. YOU UNDERSTAND THAT EMOTOUS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE EMOTOUS PROPERTIES.
14. Limitation of Liability.
14.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE EMOTOUS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE EMOTOUS PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT EMOTOUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE EMOTOUS PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE EMOTOUS PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE EMOTOUS PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE EMOTOUS PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE EMOTOUS PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A EMOTOUS PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A EMOTOUS PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A EMOTOUS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. NOTWITHSTANDING THE FOREGOING, YOU MAY ONLY SEEK PUNITIVE DAMAGES FOR ANY ACTIONS BY A EMOTOUS PARTY ACTUATED BY MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED.
14.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL EMOTOUS PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Emotous by you during the TWELVE (12) month period prior to the act, omission or occurrence giving rise to such liability and (B) ONE HUNDRED US DOLLARS ($100.00 USD). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A EMOTOUS PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A EMOTOUS PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A EMOTOUS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EMOTOUS AND YOU.
15. Procedure for Making Claims of Copyright Infringement.
It is Emotous’ policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Emotous by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Emotous Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Emotous Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Emotous’ Copyright Agent for notice of claims of copyright infringement is as follows: John Dare at email@example.com.
16.1 Violations. If Emotous becomes aware of any possible violations by you of the Terms, Emotous reserves the right to investigate such violations. If, as a result of the investigation, Emotous believes that criminal activity has occurred, Emotous reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Emotous is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Emotous Properties, including Your Content, in Emotous’ possession in connection with your use of the Emotous Properties, to (1) comply with applicable laws, legal process or governmental request, (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Emotous, its Users or the public, and all enforcement or other government officials, as Emotous in its sole discretion believes to be necessary or appropriate.
16.2 Breach. In the event that Emotous determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Emotous Properties, Emotous reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Emotous) that you have violated the Terms;
(b) Delete any of Your Content provided by you or your agent(s) to the Emotous Properties;
(c) Discontinue your registration(s) and subscription with the any of Emotous Properties, including any Services or any Emotous community; (d) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (e) Pursue any other action which Emotous deems to be appropriate.
17. Term and Termination.
17.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Emotous Properties, unless terminated earlier in accordance with the Terms.
17.2 Prior Use. Notwithstanding the foregoing, if you used the Emotous Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Emotous Properties (whichever is earlier) and will remain in full force and effect while you use the Emotous Properties, unless earlier terminated in accordance with the Terms.
17.3 Termination of Services by Emotous. You will have thirty (30) days from the Service Commencement Date, for any Services hereunder, to cancel such Service, in which case Emotous will refund your Service Subscription Fee, if already paid pursuant to Section 10.3 or 10.4, for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if Emotous is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), Emotous has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Emotous’ sole discretion and that Emotous shall not be liable to you or any third party for any termination of your Account.
17.4 Termination of Services by You. If you want to terminate the Services provided by Emotous, you may do so by (a) notifying Emotous at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Emotous’ address set forth below.
17.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Emotous will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
17.6 No Subsequent Registration. If your registration(s) with or ability to access the Emotous Properties, or any other Emotous community is discontinued by Emotous due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access the Emotous Properties or any Emotous community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Emotous Properties to which your access has been terminated.
18. International Users.
Emotous Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Emotous intends to announce such Services or Content in your country. Emotous Properties are controlled and offered by Emotous from its facilities in Australia and the United States of America. Emotous makes no representations that the Emotous Properties are appropriate or available for use in other locations. Those who access or use the Emotous Properties from other countries do so at their own volition and are responsible for compliance with local law.
19. Dispute Resolution.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Emotous and limits the manner in which you can seek relief from us.
19.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Emotous, will be resolved by binding arbitration, rather than in court, except that (a) if in the United States of America (“USA”), you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Emotous may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
19.2 Arbitration Rules and Forum. The USA Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent. The arbitration will be conducted by JAMS, if JAMS is unable to provide arbitration services in Australia the arbitration will follow the Australian Disputes Centre guidelines for Mediation and all mediation will be provided by an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Emotous will have the option to pay them for you. In addition, Emotous will have the option to reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
19.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Emotous. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
19.4 Waiver of Jury Trial. YOU AND EMOTOUS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Emotous are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
19.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
19.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org with ‘read confirmation’ marked URENT, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Emotous username (if any), the email address you used to set up your Emotous account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
19.7 Severability. Except as provided in Section 19.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
19.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Emotous. 19.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Emotous makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Emotous at the following address: email@example.com.
20. General Provisions.
20.1 Release. You hereby release Emotous Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Emotous Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Emotous Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favour at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor”. The foregoing release does not apply to any claims,
demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Emotous Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
20.2 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Emotous’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
20.3 Force Majeure. Emotous shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. For residents of the UK, if a Force Majeure event occurs that affects Emotous’ performance of its obligations under these Terms, you may cancel the Services affected by a Force Majeure event which has continued for more than thirty (30) days. To cancel please contact Emotous.
20.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Emotous Properties, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
20.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Emotous agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Adelaide if in Australia and Contra Costa County, California, if in the USA.
20.6 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of SOUTH AUSTRALIA if in Australia and CALIFORNIA if in the USA, consistent with the USA Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
20.7 Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. These Terms, and any contract between us, are only in the English language.
20.8 Notice. Where Emotous requires that you provide an e-mail address, you are responsible for providing Emotous with your most current e-mail address. In the event that the last e-mail address you provided to Emotous is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Emotous’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Emotous at the following address: email@example.com with receipt confirmation or by mail to 110 Hutt Street, South Australia, 5000, Australia. Such notice shall be deemed given when received by Emotous by confirmed receipt email or letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
20.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
20.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
20.11 Export Control. You may not use, export, import, or transfer the Emotous Properties except as authorized by the laws of the jurisdiction in which you obtained the Emotous Properties, and any other applicable laws. In particular, but without limitation, the Emotous Properties may not be exported or re-exported (a) into any United States or Australian embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List or anyone sighted by Australia’s equal government departments lists as a Specially Designated Nationals or Denied Person’s. By using the Emotous Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. or Australian Government embargo, or that has been designated by the U.S. or Australian Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. or Australian Government list of prohibited or restricted parties. You also will not use the Emotous Properties for any purpose prohibited by U.S. law. You acknowledge and agree that products, services or technology provided by Emotous are subject to the export control laws and regulations of the United States and Australia. You shall comply with these laws and regulations and shall not, without prior U.S. or Australian government authorization, export, re-export, or transfer Emotous products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
20.13 Consumer Complaints. In accordance with California Civil Code §1789.3 if in the USA, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210 and if in Australia, you may report complaints to the relevant Ombudsman.
20.14 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
21. International Provisions.
The following provisions shall apply only if you are located in the countries listed below.
21.1 United Kingdom. A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
21.2 Germany. Notwithstanding anything to the contrary in Section 13, Emotous is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).