EmmaWell Privacy Policy

EmmaWell (“EmmaWell”, “we”, or “us”) is committed to respecting the privacy of users of our Site and Service. This Privacy Policy (“Privacy Policy”) is intended to describe how EmmaWell collects, uses and discloses information in order to provide you with one or more services through www.emmawell.com, and our mobile applications (the “Site”) (collectively, the “Service”), and your rights in connection with that information.

The Service provides individuals accessing it with general information on health care and other general content pertaining to health and wellness topics, health and wellness education services, and access to wellness professionals and facilities offering their services via the Service (the “Practitioners”). This Privacy Policy applies to anyone accessing our Site or Service (collectively, “you”), including (a) casual visitors to our Site who do not sign up for an account (“Site Visitors”) and (b) individuals who have registered to use our Site or Service (“Registered Users”). This Privacy Policy is incorporated into our Terms of Use, as applicable, and your use of the Service and acceptance of the Terms of Use constitutes acceptance of this Privacy Policy and consent to uses and disclosures of your information as described herein. Terms used in this Privacy Policy that have been previously defined will have the same meanings as provided in our Terms of Use, as applicable. As with our Terms of Use, we may make changes to this Privacy Policy at any time.  If we make any changes to our Privacy Policy, we will post the revised Privacy Policy to the Site and update the “Last Updated” date of the Privacy Policy.

Certain Practitioners who may provide you with health care services through www.emmawell.com may be subject to the Health Insurance Portability and Accountability Act (“HIPAA”).  As such, access to, use and disclosure of your information by or to a Practitioner may be subject to a Practitioner’s “HIPAA Notice of Privacy Practices”.  If applicable to your Service, a Practitioner’s HIPAA Notice of Privacy Practices will be made available to you at the time of the Service. The HIPAA Notice of Privacy Practices will describe how that Practitioner may use and disclose your information in accordance with HIPAA. 

Please note that certain rights, requirements, and disclosures in this Privacy Policy may be subject to exemption or otherwise may not apply to you based, for example, on applicable law or regulations.

1. INFORMATION WE COLLECT

As described in this Privacy Policy, we may collect certain Personal Data from or about you in connection with your use of, or your submissions to, the Site and the provision of the Service. You are not required to provide all Personal Data identified in this Privacy Policy; however, please be advised that if you do not provide the Personal Data requested, we may be unable to provide some or all of the Services to you.

1.1 Categories of Personal Data

“Personal Data,” for purposes of this Privacy Policy, generally includes information that may be used to identify you. We may collect the following categories of Personal Data:

  • Identifiers: Name, home and work address, phone number, email address, username and password, signature, employee or member identification number, policy or plan number, IP address.

  • Medical and health insurance information: Information related to your wellness background, weight, height, lifestyle information, medication history, healthcare providers you visited, your reason for requesting a telehealth visit with a Practitioner, date of visit, medical history and condition, images or videos, diagnoses, treatment plans, prescription information, laboratory results, and other health-related information in order to provide the Service (“Health and Wellness Data”). We may also collect certain payment data and insurance information, such as insurance carrier, health plan eligibility, enrollment, and coverage, and information regarding your dependents (“Payment and Insurance Data”).

  • Service information: Services purchased, obtained, and considered and Service history and tendencies.

  • Biometric information: Physiological, biological, and behavioral characteristics, and genetic and health information.

  • Internet or similar network activity: Browsing history, search history, clickstream patterns, session information, browser and operating system type, navigation paths, date/time stamps, cookie identifiers, language preferences, and other information about device characteristics and how you interact with our Site.

  • Geolocation data: Physical location or device location, including zip code and Global Positioning System (“GPS”) data.

  • Sensory data: Audio recordings, videos, images, and photographs which you may make available to us.

  • Professional or employment-related information: Employer details and contact information, job title, office location, employee identification number.

  • Inferences from other Personal Data: Preferences, behaviors, characteristics, number of persons in household, location.

1.2 Special Categories of Personal Data. 

Certain categories of Personal Data may be subject to additional protections under applicable state or federal laws (“Special Categories”). We generally do not require you to submit Special Categories of Personal Data in order to visit our Site. However, as our Service provides general information on health care and other general content pertaining to health and wellness topics, we may need to collect certain Special Categories of Personal Data, such as individually identifiable health information, in order to provide the Service. We will comply with applicable laws when collecting, using and disclosing such Special Categories.

1.3 Precise Location Data. 

As set forth in the chart above, we may collect certain location data about you, such as to connect you with Practitioners in your area. We may obtain information regarding your location or the location of your device through which you access our Service. For example, we collect general location data when you provide us with your zip code. In addition, if you use our mobile applications, our Service may obtain precise information about the location of your device with your express consent. Once you have consented to the collection of the precise location of your device, you may revoke this consent by managing your location services preferences through the settings of your device.

 

1.4 Cookies and Similar Technologies. 

We may collect certain Personal Data using cookies and other technologies, such as web beacons, device IDs, geolocation, HTML5 local storage, Flash cookies, and IP addresses, as described further in this Privacy Policy. We specifically use browser cookies for different purposes, including cookies that are strictly necessary for functionality and cookies that are used for personalization, performance/analytics, and advertising. When you visit the Site, we may also automatically collect certain data about your device, including information about your web browser, IP address, time zone, language preferences, and information regarding your device and browser, including device identifiers. Additionally, as you browse the Site, we may collect information about the individual web pages or services that you view, what websites or search terms referred you to the Site, and information about how you interact with the Site. Our “Use of Cookies and Similar Technologies” section contains more information and options to control or opt-out of certain data collection or uses related to cookies and similar technologies.

 

1.5 De-identified and Anonymous Data. 

We may create de-identified or anonymous data from Personal Data by removing any data components (such as your name, email address, or linkable tracking ID) that makes the data personally identifiable to you or through obfuscation or through other means. For example, we may use de-identified or anonymized data for product or business research and development pursuant to applicable law. Our use of de-identified or anonymized data is not subject to this Privacy Policy. Once de-identified or anonymized, this data is no longer considered Personal Data.

2. SOURCES OF INFORMATION AND PURPOSES OF COLLECTION

The following is intended to describe the various sources through which we may collect Personal Data and the purposes for which we collect it:

2.1 Sources of Personal Data: 

  • Registration Forms and Account Creation - We may collect Personal Data from you, your family members, or your authorized representatives during the account creation or registration process, through other forms or applications, or through discussions we have with you, your family, or your authorized representatives.

  • Communications and Interactions with Us - We may collect Personal Data from you or your authorized representative when you communicate with us, including when you contact customer support, submit inquiries, request information from us, or participate in a promotion or survey.

  • Use of Our Web and Mobile Applications - We may collect Personal Data from you or your device when you visit or interact with our applications.

  • Visiting Our Marketing Website: We may collect Personal Data when you visit or interact with our marketing site.

  • Social Media, Online Forums, and Advertisements - We may collect Personal Data from third-party platforms and sites, when you engage with our social media pages, online communities and forums, and when you mention us on your own or other social media pages, online communities, or forums, or when you interact with advertisements related to our services. Please note that online forums may be publicly accessible and other users may view information you post in the forums. We encourage you to exercise care in deciding what information and content you wish to disclose on the areas of the Sites that are accessible to the general public.

  • Affiliates - We may collect Personal Data from our subsidiaries, joint ventures, and other companies under our common control (collectively, "Affiliates").

  • Business Partners and Service Providers - We may collect Personal Data from our business partners and service providers. We may also collect Personal Data from other third parties who are authorized to act on our behalf.

  • Practitioners - We may collect Personal Data from Practitioners, such as telehealth visit information, in order to provide the Service.

  • Employers - We may collect Personal Data about you and your dependents, if applicable, from your employer to verify your eligibility to participate in and to provide the Service.

  • Publicly-available Sources - We may collect Personal Data from publicly-available sources.

  • Health Plans/ Payors - We may collect Personal Data from your health plan, insurer, or payor in order to assist you with verifying your eligibility for reimbursement of an applicable EmmaWell Service and to process claims and payment.

2.2 Purpose and Use of Personal Data Collection

​We collect and use the sources and types of Personal Data as described above in order to operate the Site and perform the Service. This includes the following activities: 

  • Provide, perform, and enhance the Service – for example, we may collect and use Personal Data in order to create an account for you so that you may use the Service, de-identify or anonymize data for analytics purposes, or otherwise operate the Service. 

  • Verify eligibility for, and process claims and payment for the Service – for example, we may collect payment information from you, or information about your employer wellness program in order to determine your eligibility for, or process payment for the Service. 

  • Personalize the Service – for example, we may collect and use Personal Data in order to provide customized health and wellness content for you. 

  • Customer and technical support – for example, if you have trouble with your account or mobile application, if you contact us with questions, or for other technical support matters.

  • Protect against unauthorized access, security incidents, fraud, and other malicious or illegal activity

  • Comply with legal and regulatory obligations

  • Market, advertise, and promote the Service

  • Other purposes/uses described in this Privacy Policy or which we may obtain your consent for.

3. USE OF COOKIES AND SIMILAR TECHNOLOGIES

In order to help improve the Site and the Service, the Site may use cookies and similar technologies such as to improve user experience, for performance and analytics, and to improve our content and the Service. A “cookie” is a small text file that a web server stores in browser software. The purpose of cookies is to remember the browser over time and distinguish one browser instance (or user) from all others. Some cookies and other technologies may serve to track Personal Data previously entered by a web user on the Site. Cookies can remember login information, preferences, and similar information. We may use cookies to collect certain information about you and your use of our Service, such as IP addresses, domain names, and the type of device and operating system being used. We may also use cookies to identify your device when you revisit our Service to, for example, recall your authentication information or to track statistical information related to navigation throughout the Site.

 

Cookies, as well as other tracking technologies, such as HTML5 local storage, and Local Shared Objects (such as “Flash” cookies), and similar mechanisms, may record information such as a unique identifier, information you enter in a form, IP address, and other categories of data. We may also use web beacons or “pixels,” and in certain circumstances may collect, or our vendor may collect, IP address, screen resolution and browser software and operating system types, clickstream patterns, dates and times that our site is accessed, and other categories of data. Most browsers allow you to control cookies, including whether or not to accept them, and how to remove them. You may adjust your browser to refuse to accept cookies, remove cookies, or notify you when a cookie is set by editing your web browser preferences or options. (Each browser is different, so you should refer to the settings menu on your browser to change your cookie preferences.) Please note that if you choose to erase or block your cookies, you may not be able to use some features of the Service, or certain features may not function properly.

4. HOW WE SHARE THE INFORMATION WE COLLECT

We may process, use and disclose Personal Data for a variety of different purposes as set out in further detail in this Privacy Policy, including to provide the Service. In some cases, we may ask for your consent so that we may process, use and disclose your Personal Data. However, in certain circumstances, applicable data protection laws allow us to process, use and disclose your Personal Data without needing to obtain your consent. Subject to applicable law, the purposes for which we disclose Personal Data, and the legal basis for such processing, are set forth below. To the extent applicable law would prohibit sharing of certain categories of Personal Data in the manner described below, such as individually identifiable health information, or require your additional consent, we will comply with such laws.  Once we share Personal Data, it is no longer subject to this Privacy Policy except as otherwise expressly indicated below.

4.1 Categories of Third Parties with Whom We Share Personal Data

  • Affiliates - We may share Personal Data with our Affiliates. Where we share Personal Data with our Affiliates, we will require our Affiliates to honor this Privacy Policy.

  • Practitioners - We may disclose Personal Data to Practitioners in order to provide the Service. For example, we may share information with Practitioners to schedule and fulfill telehealth and other appointments and for the Practitioners to provide you with health care services and for other treatment, payment, or healthcare operations purposes. In addition, when you communicate with us or submit information through the Site or Service, we may share that information with Practitioners to enable them to communicate with you. Please note that a Practitioner’s HIPAA Notice of Privacy Practices may apply to the Practitioner’s use and disclosure of your information, and will be made available to you at the time of the Service, if applicable to you. 

  • Technical and Operational, Service Providers, and Business Partners - We may engage third parties to perform certain functions on our behalf. To do so, we may disclose Personal Data to our third-party business partners and service providers in order to maintain and operate the Site and Service and provide, improve, and personalize the Service, including to fulfill requests for the Service, to host the Site and Service, for payment processing, for customer service and communications, and for other technical and processing functions, such as sending e-mails on our behalf, fulfilling orders, and technical support. We may also share Personal Data to service providers or other third parties to detect, protect against, and respond to security incidents or other malicious, deceptive, illegal or fraudulent activity or other threats and for legal compliance purposes or pursuant to legal process.

  • Clearinghouse Entities and Program Administrators - We may share limited Personal Data with certain third parties, such as clearinghouse entities, in connection with your participation in employer wellness programs, if applicable to you and your employer, and for statistical and analytic purposes. 

  • Analytics Providers - We may share Personal Data with third-party providers for data analytics purposes.

  • Marketing and Advertising – We may share Personal Data collected from your interactions with our Marketing website, Social Media, Online Forums and Advertising websites with marketing and advertising developers and third party, such as related to promoting a Service you may be interested in.   

  • Social Media Networks - We may use widgets and tools from social networks to enable sharing and other functions through social networks. For additional information on the use of social network sharing widgets, please refer to the “Social Network Widgets” section of this Privacy Policy.

  • Employers - In the event that your access to the Site and use of the Services are offered in connection with a program offered or supported by your employer, we may disclose certain group health results with your employer. Except as otherwise permitted by applicable law, the information we share with employers is aggregated and not personally identifiable to individual employees. 

  • Business Transactions - Subject to applicable law, we reserve the right to transfer some or all Personal Data in our possession to a successor organization in the event of any reorganization, merger, sale, joint venture, assignment, transfer, liquidation, or other disposition of all or any portion of our business, assets, or stock. If any such transaction occurs, the purchaser will be entitled to use and disclose the Personal Data collected by us in the same manner that we are able to, and the purchaser will assume the rights and obligations regarding Personal Data as described in this Privacy Policy. With respect to transfers to third party agents of EmmaWell under the Privacy Shield, the Privacy Shield requires that EmmaWell remain liable should those agents process your information in a manner inconsistent with the Privacy Shield Principle.

  • Health Plans/ Payors - We reserve the right to share Personal Data with your health plan, insurer, or payer in order to verify eligibility for EmmaWell telehealth services and to process payment or submit claims

4.2 Categories of Personal Data We Share

  • Identifiers

  • Medical and health insurance information

  • Service information

  • Biometric information

  • Internet or similar network activity

  • Geolocation data

  • Sensory data

  • Professional or employment-related information

  • Inferences from other Personal Data

5. AMENDMENTS / WITHDRAWING YOUR CONSENT

You may update or correct certain information in the Site, such as update your demographics in your account.  If you need to update or amend any health information that you provided to or that was provided by a Practitioner, you should contact the Practitioner directly to request any such updates or amendments.  

In most cases, we need to process certain of your Personal Data in order to fulfill our contractual obligations to you and for our legitimate interests. In some cases, you may have a right to object to the processing of your Personal Data. Please note that, subject to applicable law, we may continue to process your Personal Data even where you object under certain circumstances. Where consent is the basis of processing, you may at any time stop using the Service and withdraw the consent you provided for the processing of your Personal Data for the purposes set forth in this Privacy Policy by contacting us at hello@emmawell.com, provided that we are not required by applicable law or professional standards to retain such information.

 

If you would like to stop receiving our maternal guidance app text messages or other notifications and updates, you may do so by following the unsubscribe instructions that appear in these communications, or you may contact us at hello@emmawell.com to opt out. Please be advised that you may not be able to opt-out of receiving certain service or transactional messages from us, including legal notices. Please note that if you do not provide consent, if you withdraw your consent or object to processing, or if you choose not to provide certain Personal Data, we may be unable to provide some or all of the Services to you.

6. DO-NOT-TRACK

Do-Not-Track is a public-private initiative that has developed a “flag” or signal that an Internet user may activate in the user’s browser software to notify websites that the user does not wish to be “tracked” by third-parties as defined by the initiative. Please note that the Site does not alter its behavior or use practices when we receive a “Do Not Track” signal from browser software.

 

7. SOCIAL NETWORK WIDGETS

Our Site may include social network sharing widgets that may provide information to their associated social networks or third-parties about your interactions with our web pages that you visit, even if you do not click on or otherwise interact with the plug-in or widget. Information is transmitted from your browser and may include an identifier assigned by the social network or third party, information about your browser type, operating system, device type, IP address, and the URL of the web page where widget appears. If you use social network tools or visit social networking sites, we encourage you to read their privacy disclosures to learn what information they collect, use, and share.

8. USE BY MINORS

Our Service is intended for use by individuals 18 years of age or older. We do not knowingly collect information from individuals under the age of 13 years without parental consent. However, if you are a parent, legal guardian, or personal representative of a minor child, you may, in compliance with the Terms of Use, use our Service on behalf of such minor child. Any information you provide us on behalf of your minor child will be treated in accordance with this Privacy Policy. If we learn that we have received any information from an individual under the age of 13 without parental consent, we will take steps to remove the data as permitted by law. If you believe an individual under 13 years of age has provided us with Personal Data without parental consent, please contact us at hello@emmawell.com.

9. LINKS TO OTHER SITES

Our Site may contain links or otherwise provide access to another website, mobile application, or Internet location (collectively “Third-Party Sites”). For example, when you choose to visit or contact a medical professional or other third party through its website in response to your request for a recommendation, you may be providing information (including Personal Data) directly to Third-Party Sites outside of EmmaWell. Please note that we have no control over and are not responsible for Third-Party Sites, their content, or any goods or services available through the Third-Party Sites. Our Privacy Policy does not apply to Third-Party Sites. We encourage you to review the Notice of Privacy Practices of each Practitioner who provides you with services and the privacy policies of any website or application with which you interact.

 

10. SECURITY OF INFORMATION

We implement technical and organizational security measures designed to safeguard Personal Data. Please note, however, we cannot fully eliminate security risks associated with the storage and transmission of Personal Data. You also must keep your password secure and your account confidential. If you have reason to believe that the security of your account has been compromised, please notify us immediately in accordance with the “Contacting Us” section below.

 

11. DATA RETENTION

We will retain your Personal Data for as long as is necessary to fulfill the purposes for which we obtained the Personal Data, including to provide the Service, or for such longer period as may be required or permitted by applicable law. We will also retain your Personal Data as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.

 

12. TRANSFER OF DATA TO THE U.S.

Please note that if you are visiting the Site from outside of the United States, your information may be transferred to, stored, and/or processed in the United States. The data protection and other laws of the United States and other countries might not be as comprehensive as those in your country. If you are located outside of the United States, the transfer of Personal Data may be necessary to provide you with the requested information and Service and/or to perform any requested transaction. By using any portion of the Site, you acknowledge and consent to the transfer of your information to our facilities in the United States.

 

13. UPDATES TO THIS POLICY

We may update this Privacy Policy from time to time. The most recent version of the Privacy Policy is reflected by the version date located at the top of this Privacy Policy. We encourage you to review this Privacy Policy often to stay informed of how we may process your information.

14. CONTACTING US

If you have any questions about this Privacy Policy, please contact us by email at hello@emmawell.com or by postal mail at:

EmmaWell

P.O. Box 807 
Ardmore, PA 19003

 

EmmaWell Terms of Use

These terms of use are entered into by and between you and Emmawell, Inc. (“Company,” “we” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use”), govern your access to and use of our website at www.emmawell.com or any of our services, such as our mobile application, along with any related software or Company servers (collectively, the “Platform”), including any content, functionality and services offered on or through the foregoing, whether as a guest or a registered user.

 

These Terms of Use will be effective as of the date that you request an appointment or create your account with us. PLEASE READ THE TERMS OF USE CAREFULLY. BY CLICKING “I ACCEPT” AND USING THE PLATFORM, YOU AGREE TO BE BOUND AND ABIDE BY THE TERMS SET FORTH HEREIN AND OUR PRIVACY POLICY FOUND AT http://www.emmawell.com/privacytermsofuse (THE “PRIVACY POLICY”), WHICH IS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF USE OR PRIVACY POLICY, YOU MAY NOT USE THE PLATFORM. IF YOU ARE USING THE PLATFORM ON BEHALF OF A BUSINESS OR SOME OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO GRANT ALL LICENSES SET FORTH IN THESE TERMS OF USE AND TO AGREE TO THESE TERMS OF USE ON BEHALF OF THE BUSINESS OR ENTITY.

 

If you are not eighteen (18) years of age, you are required to have your parents or legal guardians review and agree to these Terms of Use prior to using any of the Platform. By installing, copying and/or otherwise using the Platform you are signifying your acknowledgement, acceptance and agreement to these Terms of Use.

 

THESE TERMS OF USE APPLY TO ALL USERS OF THE PLATFORM, INCLUDING USERS WHO ARE ALSO CONTRIBUTORS OF CONTENT, INFORMATION, AND OTHER MATERIALS. IF YOU DO NOT AGREE TO THE TERMS OF THESE TERMS OF USE, YOU ARE NOT PERMITTED TO ACCESS, INSTALL, COPY OR OTHERWISE USE THE PLATFORM OR ANY PORTION THEREOF. YOUR REMEDY FOR DISSATISFACTION WITH THE PLATFORM OR ANY PRODUCTS, CONTENT, OR OTHER INFORMATION MADE AVAILABLE BY OR THROUGH EMMAWELL, IS TO STOP USING THE PLATFORM. YOUR AGREEMENT WITH EMMAWELL REGARDING COMPLIANCE WITH THE THESE TERMS OF USE BECOMES EFFECTIVE IMMEDIATELY AS OF THE DATE THAT YOU CLICK “I ACCEPT” OR UPON COMMENCEMENT OF YOUR USE OF THE PLATFORM, WHICHEVER SOONER. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS SET FORTH IN THESE TERMS OF USE AND THE PRIVACY POLICY, DO NOT DOWNLOAD OR USE THE PLATFORM, AND EMMAWELL SHALL NOT GRANT TO YOU THE LICENSE TO INSTALL AND USE THE PLATFORM.

 

1. USER’S ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS

The Platform is offered subject to your compliance with all of the terms and conditions contained herein and all other operating rules, policies and procedures. In addition, some applications offered through or in connection with the Platform may be subject to additional terms and conditions promulgated by EMMAWELL from time to time. We may revise and update these Terms of Use from time to time in our sole discretion and without prior notice, except that we will notify you of any material changes relating to the dispute resolution, arbitration and governing law and jurisdiction provisions set forth herein (“Material Changes”).  Any modifications to these Terms of Use will be posted on http://www.emmawell.com/privacytermsofuse and will be effective immediately, and will apply to disputes arising under these Terms of Use from the date of posting forward, except that Material Changes will not apply to any disputes that arise prior to the date that you have actual notice of such Material Changes. Your continued use of the Platform after a modification has been made to these Terms of Use constitutes your acceptance of such modification.

 

When you register for an account, you will provide an email address and create a password (your “Credentials”). You should keep your Credentials private and not share them with anyone else. You must immediately notify us if your Credentials have been stolen or compromised by reaching us at hello@emmawell.com. You are responsible for all use of your Credentials, including use by others to whom you have given or made available your Credentials.

2. LIMITED USE LICENSE

Subject to your compliance with these Terms of Use, EMMAWELL hereby grants you a non-exclusive, nonsublicensable, non-transferable, limited, revocable right and license to access and use one (1) copy of the Platform solely in accordance with instructions provided by EMMAWELL.  These Terms of Use shall also apply to any patches or updates you may obtain for the Platform. IN ACCORDANCE WITH AND NOT INTENDING TO LIMIT ANY OF THE PROVISIONS OR PROTECTIONS SET FORTH HEREIN, DUPLICATION, COPYING OR ANY FORM OF REPRODUCTION OF ANY PORTION OF THE PLATFORM OR RELATED INFORMATION, MATERIALS OR OTHER CONTENT TO ANY OTHER SERVER OR LOCATION FOR THE PURPOSES OF DUPLICATION, COPYING OR ANY OTHER FORM OF REPRODUCTION IS EXPRESSLY AND EXPLICITLY PROHIBITED. This license does not give you any title or ownership in the Platform, and should not be construed as a sale or transfer of any intellectual property rights to the Platform. All rights not specifically granted under these Terms of Use are hereby reserved by EMMAWELL and, as applicable, by its licensors.

 

3. COMPLIANCE

Each party represents and warrants to the other party that its activities hereunder shall comply with all applicable laws, regulations and other governmental requirements and shall not violate or infringe any valid United States intellectual property or privacy rights of a third party.  

 

To the extent you are utilizing the clinician version of the Platform (a “Clinical User”) for use in conjunction with your end customers, you shall obtain all consents to the extent required by applicable law as necessary for EMMAWELL to collect, use, and share information relating to each applicable end customer’s use of the Platform.  Use of the clinician version of the Platform may result in the storage, processing or transmission of Protected Health Information (“PHI”), as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and may require that you enter into a Business Associate Agreement (“HIPAA BAA”) with EMMAWELL. Any PHI that EMMAWELL creates, accesses or receives in connection with you as a Clinical User under these Terms of Use will be used, disclosed and treated in accordance with the HIPAA BAA between the parties entered into on the Effective Date of such BAA. To the extent that we enter into a HIPAA BAA with you, such HIPAA BAA is made part of these Terms of Use and will remain in effect for the duration of these Terms of Use. If the provisions of the HIPAA BAA conflict with the general terms and conditions of these Terms of Use, the provisions of the HIPAA BAA will control with respect to use and disclosure of PHI.


If you are a Clinical User, you represent and warrant that you have not been excluded from and are not aware of any proceeding or investigation which may result in exclusion from federal or state health care programs, including but not limited to Medicare and Medicaid, or otherwise placed on a federal or state watch-list.  You further represent and warrant as a Clinical User that you are duly licensed to practice medicine and in good standing in the state(s) in which you see patients.   

 

4. NO RIGHT TO OWNERSHIP

YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE PLATFORM, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL SUCH RIGHTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF EMMAWELL. Except as expressly licensed to you herein, all right, title, and interest in and to the Platform and any and all associated copyrights, trademarks and intellectual properties therein and/or related thereto and all copies thereof (including, but not limited to, any patches, updates, copies, derivative works, titles, computer code, themes, objects, characters, character names, stories, dialogs, catch phrases, locations, concepts, artwork, images, animation, sounds, musical compositions, audio-visual effects, text, methods of operation, moral rights, “applets” incorporated into the Platform, and any related documentation) are owned by EMMAWELL or EMMAWELL’s licensors.  The Platform is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws. All rights are reserved. The Platform contains certain licensed materials, and EMMAWELL and its licensors may protect their rights in the event of any violation of these Terms of Use.

 

5. NO SALE OR ASSIGNMENT

You may not give, purchase, sell, bargain, barter, market, trade, offer for sale, sell, license, assign or otherwise divest your rights, responsibilities or obligations with respect to the Platform, either in whole or in part, without the prior written consent of EMMAWELL. Any attempt to do so shall be void and of no effect.

 

6. LICENSE RESTRICTIONS

You agree to only use the Platform, or any portion thereof, in a manner that is consistent with these Terms of Use, and you SHALL NOT (a) exploit the Platform or any portion thereof commercially, including, but not limited to, at a cyber (Internet) café, computer gaming center or any other location where the Platform will be accessed or used by any third parties who have not purchased a license to use the Platform and agreed to be bound by the terms of these Terms of Use; (b) sell, rent, lease, license, distribute or otherwise transfer the Platform or any copies of the Platform; (c) reverse engineer, derive source code, modify, decompile, disassemble, copy, or create derivative works of the Platform, in whole or in part (except as the applicable law expressly permits, in which case all and any modifications, adaptations, copies, improvements, etc. shall belong to, vest in and be the exclusive property of EMMAWELL and/or its licensors on creation, in any event); (d) remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the Platform; (e) export or re-export the Platform or any copy or adaptation in violation of any applicable laws or regulations; or (f) create data or executable programs which mimic data or functionality in the Platform.  Furthermore, you agree that you shall abide by the information, instructions and relevant notices contained in any manual or other documentation accompanying the Platform.

 

7. PROTECTIONS

The Platform may include measures to control access to the Platform, suspend access to the Platform, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under these Terms of Use. If the Platform, including the Platform, permit access to additional online features, only one copy of the applicable Platform may access those features at one time (unless otherwise provided in the Platform documentation). Additional terms and registration may be required to access online services and to download updates and patches to the Platform. Only copies of the Platform subject to a valid license can be used to access online services, and download updates and patches. You may not interfere with such access control measures or attempt to disable or circumvent such security features. If you disable or otherwise tamper with the technical protection measures, the Platform will not function properly.

 

8. INTERNET CONNECTION

The Platform require an Internet connection to access internet-based features, authenticate the Platform, provide updates or patches from time to time, or perform other functions. In order for certain features of the Platform to operate properly, you may be required to have and maintain (a) an adequate Internet connection and/or (b) a valid and active account with an online service as set forth in the Platform documentation, including but not limited to EMMAWELL or an EMMAWELL affiliate. If you do not maintain such accounts, then certain features of the Platform may not operate or may cease to function properly, either in whole or in part. You are wholly responsible for the cost of all Internet connection fees, along with all equipment, servicing, or repair costs necessary to allow you access to the Platform.

 

9. UPDATES AND EVOLUTION OF PLATFORM

From time to time, without prior notice, EMMAWELL may in its sole discretion add new features to the Platform, remove existing features from the Platform, provide patches, updates or otherwise modify the Platform. We may provide updates that must be installed on your computer or mobile device in order for you to access and use the Platform. You hereby consent to EMMAWELL remotely installing updates to the Platform on your computer or mobile device without further notice.

 

You understand that the Platform, and the system specifications necessary to utilize the Platform, may continuously evolve over time as the result of patches and updates to the Platform. EMMAWELL reserves the right to modify or increase the system specifications necessary to operate the Platform at any time and without notice. You are responsible for purchasing any necessary additional technology, systems or services in order to access and operate the Platform.

 

10. PROHIBITED USES  

You may use the Platform only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Platform:

 

  • 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).

  • To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards (as defined below).

  • To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.

  • To impersonate or attempt to impersonate EMMAWELL, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen or account names associated with any of the foregoing).

  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined by us, may harm EMMAWELL or users of the Platform or expose them to liability.

 

Additionally, you agree not to:

 

  • Use the Platform in any manner that could disable, overburden, damage, or impair the Platform or interfere with any other party’s use of the Platform, including their ability to engage in real time activities through the Platform.

  • Set any bot, crawler, spider, scraper or other automatic device, process or means to access the Platform for any purpose, including monitoring, copying or transferring any of the material on the Platform.

  • Use any manual process to monitor, copy or transfer any of the material on the Platform or for any other unauthorized purpose without our prior written consent.

  • Use any device, software or routine that interferes with the proper working of the Platform.

  • Introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.

  • Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Platform, the server(s) on which the Platform is stored, or any server, computer or database connected to the Platform.

  • Attack the Platform via a denial-of-service attack or a distributed denial-of-service attack.

  • Otherwise attempt to interfere with the proper working of the Platform.

 

11. USER CONTRIBUTIONS  

 

The Platform may contain comments and reviews, personal profiles, forums and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Platform.

 

All User Contributions must comply with the Content Standards set forth herein.

 

You acknowledge that any User Contribution you and other users post to the Platform will be considered non-confidential and non-proprietary. By providing any User Contribution on the Platform, you hereby grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns an unlimited right and license to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose, including, but not limited to, as may be necessary to provide you and our other users with the features and functionality of the Platform and for the marketing and advertising purposes of EMMAWELL and its affiliates.

 

You represent and warrant that (a) you own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns; (b) all of your User Contributions do and will comply with these Terms of Use; and (c) you understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not EMMAWELL, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.

 

We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Platform.  We assume no liability for reviews or for any claims, liabilities or losses resulting thereof. 

 

12. MONITORING AND ENFORCEMENT; TERMINATION  

 

We have the right to (a) remove or refuse to post any User Contributions for any or no reason in our sole discretion; (b) take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates these Terms of Use, including the Content Standards (as defined below), infringes the intellectual property rights or other right of any person or entity, threatens the personal safety of users of the Platform or the public or could create liability for EMMAWELL; (c) 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; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Platform; and (e) terminate or suspend your access to all or part of the Platform for any or no reason, including without limitation, any violation of these Terms of Use.

 

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Platform. YOU WAIVE AND HOLD HARMLESS EMMAWELL AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS, FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY EMMAWELL/ANY OF THE FOREGOING PARTIES DURING, OR AS A RESULT OF, ITS INVESTIGATIONS, AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

 

We do not review all material before it is posted on the Platform, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

 

13. CONTENT STANDARDS  

 

All User Contributions must, in their entirety, comply with all applicable federal, state, local and international laws and regulations. In addition, the content standards set forth below (“Content Standards”) apply to any and all User Contributions and use of Interactive Services. Without limiting the foregoing, User Contributions must not:

 

  • Contain any material which 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, gender identity 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, including any violations of HIPAA.

  • Deceive or be likely to deceive any person.

  • Promote any illegal activity, or advocate, promote or assist any unlawful act.

  • Draw legal conclusions about the conduct of other users or the products or services of any third party listed on the Platform.

  • 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.

  • Promote 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.

 

In the event that we determine, in our sole discretion, that you are violating any of the Content Standards, we reserve the right to remove any applicable User Contributions, and/or terminate your access to the Platform.  In the event we determine that you are repeatedly infringing the copyrights of any third parties your account will be terminated and your continued access to the Platform will be denied in accordance with the Digital Millennium Copyright Act (“DMCA”).  

 

14. COPYRIGHT INFRINGEMENT  

 

If you believe that any content provided by Us (“Content”) or User Contributions violate your copyright, you may submit a notification pursuant to the DMCA by providing us with the following information in writing (collectively, a “Notice”) (see 17 U.S.C 512(c)(3) for further details):

 

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interests;

  • a description of the copyrighted work that you claim has been infringed, including the URL;

  • (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;

  • identification of the URL or other specific location on the Platform where the material that you claim is infringing is located;

  • your address, telephone number, and email address;

  • a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

  • 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.

 

All Notices must be sent to our copyright agent via email at admin@emmawell.com.  

 

You acknowledge that the Platform and Content and any underlying technology or software used in connection with therewith contain Our proprietary information. We give you permission to use the Content for personal, non-commercial purposes only and do not transfer any intellectual property rights to you by virtue of permitting your use of the Platform.

 

15. RELIANCE ON INFORMATION POSTED  

 

Certain information posted to the Platform may be provided by healthcare professionals, including but not limited to doctors, therapists and similar providers (“Healthcare Professionals”).  You acknowledge and agree that the availability of such information does not create a treating provider/patient relationship between Healthcare Professionals and other EMMAWELL users. Certain information posted to the Platform may be provided by or on behalf of EMMAWELL and is for informational purposes only. You are not permitted to use the Platform to schedule or request appointments for emergency or urgent care and should not avoid, delay or disregard medical advice received directly from a qualified healthcare professional. DO NOT USE THE PLATFORM FOR EMERGENCY MEDICAL NEEDS. CALL 911 IMMEDIATELY IF YOU EXPERIENCE A MEDICAL EMERGENCY. YOUR USE OF THE CONTENT IS SOLELY AT YOUR OWN RISK.

 

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 PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK, PRICE OR COST INFORMATION, INSURANCE COVERAGE OR BENEFIT INFORMATION, OR ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES. 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. FURTHERMORE, WE DO NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL OR ENTITY LISTED OR ACCESSIBLE THROUGH THE SERVICES. USE OF EMMAWELL IS NOT INTENDED AS AND SHALL NOT BE CONSTRUED AS MEDICAL ADVICE.

 

EMMAWELL makes reasonable efforts to ensure that Healthcare Professionals only participate in the Services if they hold all active licenses required by law to practice the specialties of the services offered by them. EMMAWELL, at its sole discretion, may exclude Healthcare Providers who have engaged in illegal, inappropriate or unprofessional conduct.   

 

Any insurance related Content may be intended for general reference purposes and for your convenience only. EMMAWELL strives to provide you with accurate information, however, we are not responsible for any inaccurate, incomplete or outdated insurance related Content.

 

Some Healthcare Professionals listed on the Platform may pay Us a fee to be listed on the Platform, including but not limited to “sponsored” results, or in connection with criteria established by your employer (to the extent applicable).  If you are a non-Clinical User, you understand that you (and not EMMAWELL) remain responsible for choosing a Healthcare Professional and all other health-related decisions.  

 

16. PURCHASES

 

Any fees for purchases you make on the Platform are due immediately and are non-refundable regardless of your decision to terminate your usage of the Platform, our decision to terminate your access to the Platform, planned and unplanned disruptions to the Platform, or any reason whatsoever. 

 

To the extent that any amounts owed are not payed when due, or in the event your credit card information is declined or is no longer valid, you will be charged for all applicable third party fees and/or charges that are incidental to the collection of amounts owed and/or chargebacks including, but not limited to, costs of collection (including reasonable attorneys’ fees), convenience fees and/or other third parties charges. 

 

You hereby explicitly agree that all communication in relation to unpaid fees will be made by electronic mail or by phone and that Company may rely on the services of a third party collection agent to makes such communications and engage in collection actions.  

 

17. LINKING TO THE PLATFORM 

 

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.

 

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Use. 

18. LINKS FROM THE PLATFORM 

 

If the Platform contain links to other Platform 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 Platform 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 site linked to by the Platform, you do so entirely at your own risk and subject to the terms and conditions of use for such site which may be different than these Terms of Use.

 

19. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

 

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW AND EXCEPT AS OTHERWISE MAY BE SET FORTH IN ANY HIPAA BAA BETWEEN YOU AND EMMAWELL, AS APPLICABLE, YOU EXPRESSLY AGREE THAT THE USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND EMMAWELL HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS DUE TO VARIATIONS IN HARDWARE, SOFTWARE, INTERNET CONNECTIONS AND INDIVIDUAL USAGE, EMMAWELL PARTIES DOES NOT WARRANT THE PERFORMANCE OF THE PLATFORM ON YOUR SPECIFIC COMPUTER OR MOBILE DEVICE. WITH RESPECT TO THE PLATFORM, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (B) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE PLATFORM WILL BE INTERAOPERABLE OR COMPATIBLE WITH OTHER SOFTWARE, OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE EFFECTIVE, ACCURATE OR RELIABLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EMMAWELL OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY. AT SOME POINT IN THE FUTURE THE PLATFORM MAY GO OUT OF DATE, AND EMMAWELL MAKES NO COMMITMENT TO UPDATE SUCH PLATFORM. THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE PLATFORM, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. THE USE OF THE PLATFORM OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH OR IN CONNECTION WITH THE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.

 

EMMAWELL MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE PLATFORM, INFORMATION AND/OR RELATED GRAPHICS PUBLISHED AS PART OF THE PLATFORM FOR ANY PURPOSE. THE PLATFORM, INFORMATION AND RELATED GRAPHICS PUBLISHED AS PART OF THE PLATFORM MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. YOU UNDERSTAND AND AGREE THAT TEMPORARY INTERRUPTIONS OF THE PLATFORM MAY OCCUR AS NORMAL EVENTS. YOU FURTHER UNDERSTAND AND AGREE THAT WE HAVE NO CONTROL OVER THIRD PARTY NETWORKS YOU MAY ACCESS IN THE COURSE OF THE USE OF THE PLATFORM, AND THEREFORE, DELAYS AND DISRUPTION OF OTHER NETWORK TRANSMISSIONS ARE COMPLETELY BEYOND EMMAWELL’S CONTROL. EXCEPT AS OTHERWISE MAY BE SET FORTH IN ANY HIPAA BAA BETWEEN YOU AND EMMAWELL, YOU ACKNOWLEDGE AND AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE WITH EMMAWELL IS TO STOP USING THE PLATFORM. IN NO CASE SHALL ANY LIABILITY OF EMMAWELL TO YOU EXCEED THE AMOUNT THAT YOU PAID TO EMMAWELL OR ITS AFFILIATES AND/OR DESIGNEES FOR THE APPLICABLE PLATFORM OR PORTION OF THE PLATFORM GIVING RISE TO ANY SUCH LIABILITY. IN NO EVENT SHALL EMMAWELL OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE PLATFORM, INCLUDING DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, EVEN IF EMMAWELL HAS BEEN ADVISED 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, THE LIABILITY OF EMMAWELL AND THE EMMAWELL PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. 

 

NON-CLINICAL USERS OF THE PLATFORM ARE RESPONSIBLE FOR ALL THEIR HEALTHCARE EXPENSES. YOU MUST RESOLVE ANY DISPUTE BETWEEN YOU OR ANY HEALTHCARE PROFESSIONAL ARISING FROM ANY HEALTH CARE ENCOUNTER OR TRANSACTION DIRECTLY WITH THAT HEALTHCARE PROFESSIONAL.

 

Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Software of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. California residents expressly agree to waive California Civil Code Sec. 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

 

20. INDEMNIFICATION

 

You agree to defend, indemnify, and hold EMMAWELL, its affiliates, and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successor and assigns harmless from all liabilities, damages, judgments, awards, claims, losses, costs and expenses, including attorney's fees, that arise from (a) your use of, or activities in connection with the Platform; (b) any violation of these Terms of Use by you; or (c) any allegation that any of your User Contributions infringe or otherwise violate the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party. EMMAWELL reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you or any person using your Credentials, in which event you will cooperate with EMMAWELL in asserting any available defenses.

 

21. INTERNATIONAL USE

 

Although the Platform may be accessible worldwide, we make no representation that the Platform or related materials are appropriate or available for use in locations outside the United States, and accessing them from territories where the content is illegal is prohibited. Those who choose to access the Platform from other locations do so on their own initiative, at their own risk and are responsible for compliance with local laws, if and to the extent local laws are applicable. Any offer and/or information made in connection with the Platform is void where prohibited. Without limiting the foregoing, the Platform may not be exported or re-exported (a) into (or to a national resident of) any U.S. 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 Denied Person's List or Entity List. By accessing and using the Platform, you represent and warrant that you are not located in, under control of, or a national resident of any such country or on any such list.

 

22. TERMINATION AND SURVIVABILITY OF TERMS

 

EMMAWELL, at its sole discretion, reserves the right to terminate, suspend and/or deactivate your account immediately, without notice, if there has been a violation of these Terms of Use or other policies and terms posted on the Platform by you or by someone using your Credentials. These Terms of Use continue to remain in full force and effect until such time as terminated by either party. You agree and acknowledge that you are not entitled to any refund for any amounts which were paid to EMMAWELL prior to any termination. You retain full discretion to end or terminate your account, if applicable, and discontinue use of the Platform at any time, pursuant to the terms of these Terms of Use. Without prejudice to any other rights of EMMAWELL, these Terms of Use shall terminate automatically if you fail to comply with its terms and conditions. Upon termination, you must delete or destroy (as applicable) all copies of the Platform. The provisions of Sections 4, 5, 6, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25 and 26 shall survive any termination of these Terms of Use.

 

23. INJUNCTION

 

Because EMMAWELL would be irreparably damaged if the terms of these Terms of Use were not specifically enforced, you agree that EMMAWELL shall be entitled, without bond or other security or proof of damages, to take such action as may be required, including seeking an injunction and other equitable remedies, in addition to any other remedies available to it under the applicable law.

 

24. ARBITRATION

 

Any dispute between the parties, whether or not arising from these Terms of Use or its performance, shall be determined by one arbitrator in binding arbitration administered by the JAMS, formerly Judicial Arbitration and Mediation Services, Inc., in Philadelphia, PA; provided, however, that EMMAWELL may seek to injunctive relief in a court of competent jurisdiction with respect to an allegation of infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.  Any witness more than 100 miles from the site of any hearing may testify via telephone, teleconference or other real-time telecommunication technology acceptable to the arbitrator. The arbitrator’s award shall be final and binding on the parties, and may be entered and enforced in any court of competent jurisdiction. 

 

You acknowledge and agree that you and EMMAWELL are each waiving the right to a trial by jury. You further acknowledge and agree that you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and EMMAWELL otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. 

 

In the event this “Arbitration” section is held unenforceable, then the entirety of this “Arbitration” section will be deemed void. Except as provided in the preceding sentence, “Arbitration” section will survive termination of these Terms of Use.

 

25. MISCELLANEOUS

 

These Terms of Use represents the complete agreement between you and EMMAWELL concerning the Platform and supersedes all prior agreements and representations, warranties or understandings between you and EMMAWELL (whether negligently or innocently made but excluding those made fraudulently), regarding the same subject matter. Except with respect to any HIPAA BAA entered into between you and EMMAWELL, EMMAWELL reserves the right to amend these Terms of Use at any time, at its sole discretion. If any part of these Terms of Use is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Use shall continue in effect. Any failure by us to enforce or exercise any provision of these Terms of Use or related rights shall not constitute a waiver of that right or provision.

 

EMMAWELL may assign these Terms of Use, in whole or in part, at any time. Notwithstanding, you may not assign, transfer or sublicense any or all of your rights or obligations under these Terms of Use without EMMAWELL’s express prior written consent. EMMAWELL’s performance of these Terms of Use is subject to existing laws and legal process, and nothing contained in these Terms of Use is in derogation of EMMAWELL’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Platform or information provided to or gathered by EMMAWELL with respect to such use. In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of the Platform arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, terrorism, fire, denial of service attack, internet outages, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above. The parties agree that all correspondence relating to these Terms of Use shall be written in the English language.

 

These Terms of Use represents the full agreement between the parties with respect to the subject matter hereof, and supersedes all prior negotiations and agreements between the parties regarding the same. 

 

These Terms of Use shall be governed by the law of the State of Delaware, without reference to conflicts of laws principles.  Notwithstanding the arbitration requirements set forth herein, to the extent that any legal suit, action or proceeding arises out of, or relates to, these Terms of Use, the Privacy Policy or the Platform, such suit shall be instituted exclusively in the federal courts of the United States or the state courts of the State of Pennsylvania, in each case located in Montgomery County, PA. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

 

26. CONTACT

 

You may contact EMMAWELL via the contact information available on the Platform, as may be updated from time to time.

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