Terms of Use

Dear user,

Here you’ll find the terms which govern the use of our Site, App, and other Services (as such terms are defined below).

The Empathy Project Inc. (and its affiliates) (collectively, “Empathy”, “us”, ”our“, or “we”) welcomes you (the “User(s)” or “you”) to our marketing website at: www.empathy.com (and its subdomains) (the “Site”), which offers general information regarding Empathy and its services, and to our mobile and web applications (the “App”), which provides an online platform for dealing with aspects of loss. These Terms govern all services provided through our Site and App and all other related services detailed hereunder (collectively, the “Services”, as further described below). Each of the Site’s, App’s and Services Users may use it in accordance with the terms and conditions hereunder.

Please review Section ‎25 (“Dispute Resolution”) carefully. For U.S. residents, these Terms require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. These Terms limit Empathy’s liability and the remedies available to you in the event of a dispute.

1. ACCEPTANCE OF THESE TERMS

By entering, connecting to, accessing or using the Site and by entering, connecting to, accessing, using, installing and/or downloading the App or otherwise use the Services , you acknowledge that you have read and understood the following Terms of Service, including the terms of our Privacy Policy available at: empathy.com/legal/privacy (the “Privacy Policy”) (collectively, the “Terms”), and you agree to be bound by the Terms, to comply with all applicable laws and regulations regarding your use of the Site and/or the App, and you acknowledge that these Terms constitute a binding and enforceable legal contract between Empathy and you. If you do not agree to these Terms, please do not enter, connect to, access or use the Services in any manner, do not install the App and/or promptly uninstall the App.

Our Services are available only to individuals who (a) are at least eighteen (18) years old; and (b) possess the legal capacity to enter into these Terms and to form a binding agreement under any applicable law. Therefore, you hereby represent and warrant that you are of legal age in your jurisdiction to form a binding contract and that you possess the legal authority and capacity to enter into these Terms, to use the Services in accordance with these Terms, and to fully perform your obligations hereunder. Important Note:

The right to access and utilize the App and Services (with the exception of the Site), as detailed herein, may be provided to you on behalf of an independent third party, including but not limited to your employer, insurance carrier, consultant or advisor, which may be subject to separate terms between you and such third party (the “Third Party Provider”) containing independent terms and conditions (the “Provider Terms”). By way of illustrative example, you may be granted the right to access and utilize the App and Services in conjunction with an insurance policy purchased by you, as a component of a bereavement benefit, in your status as beneficiary of an insurance policyholder, as an employment benefit, or in a similar capacity. Your access to and utilization of the App and Services is subject to your acceptance of and compliance with the Provider Terms. In addition, where Services are provided on behalf of a Third Party Provider, the provision of the Services shall be subject to an agreement between Empathy and the Third Party Provider (the “Empathy Services Agreement”). In the event of any conflict or inconsistency between the terms herein and the Provider Terms or the Empathy Services Agreement in connection with the Services, the terms herein shall prevail and govern. For the avoidance of doubt, it is hereby clarified that Empathy is not a party to the Provider Terms, and as such neither Empathy nor anyone on its behalf shall have any responsibility or liability for your engagement with any Third Party Provider, and these Terms form the sole and exclusive agreement between yourself and Empathy with respect to the App and Services provided hereunder.

2. THE APP, SITE AND SERVICES

The Site provides information regarding Empathy and our products and services, and allows Users to contact us.

In addition, Empathy operates a platform for coping with bereavement, through which various services are offered to Users, including but not limited to guidance regarding recommended courses of action and assistance in performing requisite tasks attendant to the loss of a loved one. By electing to utilize said Services, users may receive consultations (including via live-chat), recommendations, supportive tools, comprehensive informational resources designed to facilitate completion of such requisite tasks and an option to scan and upload relevant documents to their personal Account. Certain Services may be provided outside of the App, namely support services through telephone calls with Empathy’s representatives (the “Care Team”, as further detailed below).

Empathy reserves the right, in its sole discretion, to furnish Users with some or all of the aforementioned Services, as well as with additional services, from time to time, whether through the App or otherwise, depending on whether the User has purchased the right to use the App and Services directly from Empathy or through a Third Party Provider, and the relevant Provider Terms and Empathy’s Services available from time to time. To the extent a User has purchased or otherwise acquired the right to access and use the App and/or Services from a Third Party Provider, the nature and scope of Services available to such User shall be subject to the terms of the separate agreement existing between Empathy and the pertinent Third Party Provider, and further subject to the Provider Terms.

Subject to the Empathy Services Agreement (as applicable), Users may invite third parties, such as family members, to open an Account on the App and share certain information with them. Users may also export certain data from the App. By inviting third parties to use the App, sharing information or exporting information and materials from the App, you acknowledge and confirm that: (a) such third parties may access your User-Generated Content (as defined below) and use it at their discretion and that Empathy cannot control the actions of such third parties; (b) any data that you share with others, may be used and controlled by them, including by way of integrating it with other information, modifying, transferring or sharing it with third parties; and (c) you are solely responsible for adding such third parties to your Account and any sharing of data is at your own risk. Empathy takes no responsibility and assumes no liability for any actions and information made available by you to any third party, or for any loss or damage related thereto.

Please note that, to the extent applicable, certain anonymized and aggregated data which is collected and produced as part of your use of the App and the related Services may be made available to relevant Third Party Provider for its own independent use, at its discretion. You hereby acknowledge and consent to such sharing of anonymized data.

The Site and the App also provide comprehensive information related to Empathy including, but not limited to, an overview of, and news regarding, Empathy and the Services, blog, job opportunities, including any other content related thereto, such as contact information, videos, text, files, logos, button icons, images, data compilations, links, other specialized content, technical data, documentation, know-how, specifications materials, designs, data, the “look and feel” of the Site and the App, algorithms, source and object code, interface, GUI, interactive features and related graphics, illustrations, drawings, animations, and other features obtained from or through the Site and the App (collectively, the “Content”).

The Site and/or the App may include the sending of push notifications, messages, emails and alerts via various means of communication. ALL RIGHTS IN AND TO THE CONTENT AVAILABLE ON THE SITE AND/OR SERVICES AND/OR THE APP ARE RESERVED TO EMPATHY. TO THE EXTENT LEGALLY PERMISSIBLE, THE SITE AND/OR THE APP AND/OR THE CONTENT AND/OR SERVICES AND/OR THE USER-GENERATED CONTENT AVAILABLE THEREIN ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EMPATHY WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED BY YOU OR ANY OTHER PERSON AS A RESULT OF OR IN CONNECTION WITH YOUR USE OF THE SITE AND/OR THE APP AND/OR THE SERVICES AND/OR THE CONTENT AND/OR THE USER-GENERATED CONTENT AVAILABLE THEREIN.

THE SITE AND/OR THE APP AND/OR THE SERVICES AND/OR CONTENT ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO CONSTITUTE PROFESSIONAL ADVICE, INCLUDING WITHOUT LIMITATION LEGAL, TAX, FINANCIAL, MENTAL HEALTH OR MEDICAL ADVICE, OR ANY OTHER ADVICE WHICH REQUIRED PROFESSIONAL LICENSURE (SUCH AS SERVICES PROVIDED BY PSYCHOLOGISTS OR SOCIAL WORKERS). YOUR USE OF THE SERVICES (INCLUDING THE SITE, THE APP, THE CONTENT AND/OR THE USER-GENERATED CONTENT AVAILABLE THEREIN) AND YOUR RELIANCE ON ANY INFORMATION AVAILABLE TO YOU AS PART OF THE SERVICES (INCLUDING ANY MATERIALS, ADVICE OR RECOMMENDATIONS PROVIDED TO YOU) IS ENTIRELY AT YOUR OWN RISK. FOR THE AVOIDANCE OF DOUBT, YOU AGREE THAT EMPATHY IS NOT LIABLE FOR ANY RECOMMENDATIONS ITS REPRESENTATIVES PROVIDE TO USERS.

THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR COURSE OF PERFORMANCE. EMPATHY DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE INFORMATION PROVIDED VIA THE SITE, APP OR SERVICES. EMPATHY DOES NOT REPRESENT OR WARRANT THAT IT WILL MAINTAIN BACKUPS OF ANY DATA UPLOADED TO THE APP OR OTHERWISE PROCESSED BY EMPATHY AS PART OF PROVIDING THE SERVICES, AND AS SUCH, YOU ARE SOLELY RESPONSIBLE FOR BACKING UP SUCH DATA (WHICH INCLUDES ANY DATA, RECORDS AND MATERIALS THAT YOU UPLOAD TO THE APP AND YOUR ACCOUNT AND YOUR USER-GENERATED CONTENT). EMPATHY DOES NOT PROVIDE ANY ARCHIVE SERVICES FOR STORING SUCH DATA. IN ADDITION, YOU AGREE THAT EMPATHY SHALL NOT BE RESPONSIBLE FOR ANY UNAUTHORIZED ACCESS, USE OR OTHER SECURITY INTRUSIONS, FAILURE TO STORE, AND ANY OTHER DAMAGE OR LOSS TO SUCH DATA, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

INFORMATION OR DATA YOU SUBMIT TO EMPATHY SHALL REMAIN CONFIDENTIAL AND SHALL ONLY BE DISCLOSED BY EMPATHY IN MANNERS PERMITTED UNDER THE PRIVACY POLICY.

ALL USER-GENERATED CONTENT SUPPLIED TO EMPATHY BY THE RELEVANT USER, IS NOT VERIFIED BY EMPATHY AND DOES NOT BIND EMPATHY IN ANY FORM.

WE RESERVE OUR RIGHT TO REFUSE PROVISION OF THE SERVICES TO ANYONE, FOR ANY REASON OR FOR NO REASON, ALL SUBJECT TO APPLICABLE LAW. You hereby acknowledge and agree that you may be charged for Internet, maintenance of network connection and data usage charges made through use of the Site and/or the App, according to the applicable rates charged by your respective third-party internet and data usage service provider as may be updated by such provider from time to time.

3. CONSENT TO RECEIVE PROMOTIONAL TEXT MESSAGES AND CALLS FROM EMPATHY

Consent. You hereby consent to receive Services-related text messages and calls (including by using artificial or prerecorded voice, live operator, and/or autodialing) from Empathy. These messages will be sent to the telephone number provided at the time of your opt-in. Text message frequency varies based on your use of the Services and interaction with Empathy. You hereby acknowledge that message and data rates may apply, and you agree that Empathy and any third-party provider of text messaging services are not liable to you for violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), or any related rules, regulations, or Federal Communications Commission Orders.

Empathy is committed to being compliant with the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”) and the TCPA. In the event you receive electronic communications from us which you do not believe are fully compliant with these laws, please contact us through the contact details below.

b. Empathy Opt-Out and Assistance. To opt-out of any future text messages, reply “STOP” to stop receiving text messages from Empathy. For further assistance email us at [email protected]. You may receive an additional mobile message confirming your decision to opt out. To opt out of future calls, ask the prerecorded message or live agent to be added to the Do Not Call list. You understand and agree that the foregoing options are the only reasonable methods of opting out of such communications.

c. Update Mobile Telephone Number. You agree to provide Empathy with a valid mobile telephone number. You agree to promptly update your mobile telephone number upon any change or deactivation of your mobile telephone number and to opt-out of receiving text message communications using your previous mobile telephone number before changing your mobile telephone number applicable to the Services. To the extent permitted by applicable law, you agree that Empathy shall not be liable for failed, delayed, or misdirected delivery of any information sent through the text message program, any errors in such information, and/or any action you may or may not take in reliance on the information or Services.

4. REGISTRATION AND USER ACCOUNT

In order to use the mobile App, you must download the mobile App from the applicable mobile application marketplace.

In order to access and use the Services, you must register and create an account (the “Account“) by completing the registration process on the App, which requires you to share with us certain personal information such as your mobile phone number, as further detailed in our Privacy Policy. When you create an Account with us, you represent and warrant that you are over the age of 18, that you are of legal age in your jurisdiction to form a binding contract, that you possess the legal authority and capacity to enter into these Terms and to form a binding agreement under any applicable law, to use the Services in accordance with these Terms, and to fully perform your obligations hereunder. You represent and warrant that the information you provide us is accurate, complete, and current at all times, and that you are legally authorized to disclose such information to us. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your Account.

You are responsible for maintaining the confidentiality of your Account and password, including but not limited to the restriction of access to your computer, mobile device and/or Account. You agree to accept responsibility for any and all activities or actions that occur under your Account and/or password. You also agree to ensure that you exit from your Account at the end of each session. You should use particular caution when accessing your Account from a public or shared computer so that others are not able to view or record your password or other personal information. You may not assign or transfer your rights or delegate your duties under the Account without the prior written consent of Empathy. You must notify Empathy immediately of any unauthorized use of your Account or any other breach of security, and in such event you must change your password immediately via the settings in the App. We cannot and will not be liable for any loss or damage arising from any failure of yours to comply with these Terms (e.g., if someone else accesses your Account through the registration information they have obtained from you or through a violation by you of these Terms, or for any unauthorized use of your password or Account or any other breach of security).

If you wish to cancel and remove your Account, please use the applicable functionality within the App or send us an email of your request to: [email protected]. Your Account will terminate within a reasonable time period following your request, and from that date of termination you will no longer be able to access your Account.

CANCELING YOUR ACCOUNT MAY CAUSE THE LOSS OF CERTAIN INFORMATION YOU PROVIDED TO US (INCLUDING DOCUMENTS YOU UPLOADED TO THE APP AND YOUR USER-GENERATED CONTENT) AND/OR THE CAPACITY OF YOUR ACCOUNT. YOU AGREE THAT EMPATHY IS NOT LIABLE FOR ANY LOSS OF DATA DUE TO THE TERMINATION OR CANCELATION OF YOUR ACCOUNT.

We have the right to disable any Account access credentials, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.

To the extent that the Service is provided to you pursuant and subject to Provider Terms and/or the Empathy Services Agreement, then the Account you create on the App is intended to remain active for a minimum of twelve (12) months, in accordance with the Empathy Services Agreement, and subject to the terms set forth in these Terms. Notwithstanding the foregoing, Empathy reserves the right to deactivate or terminate your Account at any time, for any reason, with or without cause.

In the event that your Account is deactivated or terminated due to the expiration of the term of your Account, or in the event that Empathy ceases to operate the Services or any part thereof, Empathy shall make commercially reasonable efforts to notify you using the contact information provided in your Account. However, Empathy shall not be liable for any failure to notify you or for any consequences resulting from the deactivation or termination of your Account.

You acknowledge and agree that upon deactivation or termination of your Account, Empathy may, in its sole discretion, delete or destroy any or all of the information and documents associated with your Account, and Empathy shall have no liability to you or any third party for such deletion or destruction.

By using the Services, you signify your understanding and agreement to the terms outlined in this section regarding the term and potential deactivation of your Account.

5. CARE TEAM

To the extent Care Team Services are furnished to you under the Empathy Services Agreement (and solely to such extent), you may obtain certain Services by engaging with Empathy’s Care Team, including via telephonic communications to Empathy’s call center. The scope and nature of Services furnished by the Care Team is subject to the Empathy Services Agreement and may be subject to modification by Empathy periodically and at its sole discretion. All calls between you and the Care Team shall be recorded by Empathy for purposes of: (i) furnishing the relevant Services to Users; (ii) retaining requisite records; (iii) legal defense against claims; and (iv) improving Empathy’s products and services. By using the Care Team Services, you agree and consent to such recordings for the foregoing purposes and uses. The Care Team and call center shall be operational only during regular business hours, as may be modified by Empathy from time-to-time. Empathy does not guarantee maximum wait times to access the Care Team or call center.

THE CARE TEAM AND CALL CENTER SERVICES ARE NOT INTENDED FOR USE IN ANY EMERGENCY SITUATION OR FOR ADDRESSING MEDICAL OR HEALTH RELATED ISSUES. USERS SHOULD CONTACT EMERGENCY SERVICES OR USERS’ PHYSICIAN, AS APPLICABLE. EMPATHY DISCLAIMS ALL LIABILITY IN CONNECTION WITH USERS’ FAILURE TO SEEK APPROPRIATE EMERGENCY OR MEDICAL ASSISTANCE.

ANY ASSISTANCE FURNISHED TO USERS BY PERSONNEL OF THE CARE TEAM IS INTENDED SOLELY FOR INFORMATIONAL PURPOSES AND SHALL NOT CONSTITUTE PROFESSIONAL ADVICE, INCLUDING WITHOUT LIMITATION LEGAL, TAX, FINANCIAL, MENTAL HEALTH OR MEDICAL ADVICE, OR ANY OTHER SPECIALIZED ADVICE REQUIRING PROFESSIONAL LICENSURE (SUCH AS SERVICES OFFERED BY PSYCHOLOGISTS OR SOCIAL WORKERS). USERS’ UTILIZATION OF AND RELIANCE UPON ANY ADVICE OR INFORMATION FURNISHED BY THE CARE TEAM IS ENTIRELY AT USERS’ OWN RISK.

6. CONSIDERATION

The use of our Site is currently offered free of charge. We reserve the right to charge fees for any use of our Services (including the Site) in the future, at any time and at our sole discretion.

If you have gained access to the App or are using the App directly (and not pursuant and subject to Provider Terms), then use of our App (and other Services) may be subject to the purchase of a subscription and the payment of fees, as further detailed on the Site and/or App (the "Subscription" and “Subscription Terms”, respectively). The applicable Subscription Terms are incorporated into these Terms by reference.

We may (but are not obligated to) provide a free trial Subscription or other benefits from time to time, at our sole discretion. The specific period for such free trial Services will be stipulated on our Site, App or otherwise agreed with you in writing. We may impose, at any time, with immediate effect and at our sole discretion, restrictions on the use of App and the Services under a free trial Subscription, including limitation on the availability of certain features of the Services, limitations on the period of the trial period and so forth. We may terminate free trial Subscriptions at any time and at our sole discretion.

Following the trial period, if applicable, the fees for the Subscription shall be automatically billed in advance and periodically thereafter, in accordance with the applicable Subscription Terms. If you do not provide your credit card or other payment information before the expiration of any free trial period, access to your Account may be limited (at our sole discretion) until payment information and charge authorization are provided.

We may change the Subscription Terms, including any fees due with respect to the Subscription, for any subsequent Subscription renewal term, provided that we notify you of such change at least 30 days prior to the expiration of any Subscription term, and such change will not affect your then existing Subscription term. Your failure to notify us of cancellation of your Subscription prior to its renewal will constitute your consent to the renewal of the Subscription under the new Subscription Terms, as notified to you.

To the extent permitted under applicable consumer laws, all fees and other amounts paid hereunder are irrevocable and non-refundable. Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including VAT, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying Taxes except those assessable against Empathy based on its revenue. We will invoice you for such Taxes if we believe we have a legal obligation to do so.

Payments for your Subscription will be processed through the Platform Provider (as defined below), such as Google Play or Apple App Store, from which you originally downloaded the App (an “In-App Purchase”). If you make such an In-App Purchase, then you enter into a direct relationship with the Platform Provider and the Platform Providers’ terms and conditions will also apply. If you have any payment-related issues with In-App Purchases, you must contact the Platform Provider directly for assistance. It is your responsibility to abide by all the terms specified by the Platform Providers in their terms of use and privacy policies. You acknowledge and agree that all payment processes are handled by the Platform Provider and are governed by such terms and policies. Please note that we do not control and are not affiliated with such Platform Providers. These Platform Providers are independent contractors and have no employment or agency relationship with Empathy. Empathy is not responsible in any way for the actions or performance (or lack thereof) of the Platform Providers. You acknowledge that you are fully assuming the risks of conducting any transactions via the Platform Providers.

7. USE RESTRICTIONS

There are certain activities and kinds of conduct that are strictly prohibited when using the App, Site and/or Services. Please read the following restrictions carefully. Failure to comply with any of the provisions set forth herein may result (at Empathy’s sole discretion) in the termination of your use of the App, Site and/or Services and may also expose you to civil and/or criminal liability.

You may not (and you may not permit any third-party to) unless otherwise explicitly permitted under these Terms: (a) use the Site and/or the App and/or the Content and/or the User-Generated Content and/or Services for any illegal, immoral, unlawful and/or unauthorized purposes (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); (b) use the Site and/or the App and/or the Content and/or the User-Generated Content and/or Services for non-personal or commercial purposes without Empathy’s express prior written consent; (c) frame or utilize framing techniques or caches to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) on the Site or App or remove or disassociate, from the Content and/or the Site and/or the App and/or the User-Generated Content any restrictions and signs indicating proprietary rights of Empathy or its licensors, including but not limited to any proprietary notices contained in such materials (such as ©,™, or ®), and you represent and warrant that you will abide by all applicable laws in this respect; (d) interfere with or violate Users’ rights to privacy and other rights, or harvest or collect personally identifiable information about Users without their express consent, whether manually or with the use of any robot, spider or crawler, or any search or retrieval application, or use other manual or automatic device, process or method to access the Site and/or the App and retrieve, index and/or data-mine information; (e) interfere with or disrupt the operation of the Site and/or the App or the servers or networks that host the Site and/or the App, or disobey any laws, regulations, requirements, procedures or policies of such servers or networks; (f) impersonate or attempt to impersonate, falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that Empathy endorses you, your site, your business or any statement you make, or present false or inaccurate information about the Services; (g) take any action that imposes, or may impose, an unreasonable or disproportionately large load on our platform infrastructure, as determined by us; (h) bypass any measures we may use to prevent or restrict access to the Site and/or the App or the server on which the Site or App is stored, or any server, computer, or database connected to the Site or the App; (i) copy, modify, alter, adapt, replicate, make available, translate, port, reverse engineer, decompile, or disassemble the App and/or Site and/or/or Services and/or any portion of the Content made available by Empathy on or through the Site and/or the App and/or Services, or publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use such Content and/or User-Generated Content; (j) copy, distribute, display, execute publicly, make available to the public, reduce to human readable form, decompile, disassemble, adapt, sublicense, make any commercial use of, sell, rent, transfer, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of any material that is subject to Empathy’s proprietary rights, including the App, the Site and the Content and including Empathy’s Intellectual Property (as such term is defined below), in any way or by any means, unless expressly permitted in the Terms and/or under any applicable laws which expressly permits such actions; (k) make any use of the Content and/or Use-Generated Content on any other site or networked computer environment for any purpose without Empathy’s prior written consent; (l) create a browser or border environment around Empathy’s Content (no frames or inline linking is allowed); (m) sell, license or exploit for any commercial purposes any use of or access to the Site and/or the App and/or Services and/or the Content and/or the User-Generated Content; (n) frame or mirror any part of the Site and/or the App without Empathy’s prior express written authorization; (o) create a database by systematically downloading and storing all or any of the Content and/or User-Generated Content from the Site and/or the App; (p) transmit or otherwise make available in connection with the Site and/or the App any virus, worm, trojan horse, time bomb, web bug, spyware, or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other actually or potentially harmful, disruptive or invasive code or component; (q) use the Services for any purpose for which the Site and/or the App and/or the Services are not intended; (r) infringe and/or violate any of the Terms; (s) transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any "junk mail," "chain letter," "spam," or any other similar solicitation ; and/or (t) engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Site, the App, and/or the Services, or which, as determined by us, may harm us or users of the Site, App and/or Services or expose them to liability.

8. PRIVACY POLICY

We believe that you have a right to know our practices regarding the information we collect when you connect to, access or use the Site and/or the App and/or Services. Our policy and practices and the type of information collected are described in detail in our Privacy Policy, which is provided hereinafter and also at: www.empathy.com/legal/privacy. If you intend to connect to, access or use the Site and/or the App and/or Services, you must first read and understand the Privacy Policy.

9. USER-GENERATED CONTENT

User-Generated Content

The App and Services may allow you to upload, post, publish and make available through it your own information and materials such as documents, photos, certificates, images, literary works, text material and any other materials (collectively, “User-Generated Content”). Please be sure that while you use the App and Services, you respect the proprietary rights, including any intellectual property and privacy rights, of third parties who have any rights with respect to the User-Generated Content you uploaded to the App. You agree that Empathy will not bear any liability for any loss, damage, cost or expense that you may suffer or incur as a result of or in connection with uploading any User-Generated Content.

Such User-Generated Content shall remain, at all times and to the extent permitted by law, the sole and exclusive property of the User.

You understand and agree that you are solely responsible for your User-Generated Content and the consequences of posting or publishing such material on the App in any way.

You represent and warrant that you are the rightful owner of the User-Generated Content you upload to the App or that you have (and will continue to have) all the necessary licenses, rights, consents and permissions from the rightful owners of such User-Generated Content and that such User-Generated Content does not infringe any third party’s intellectual property rights or other rights (including, without limitation, any privacy rights, publicity rights, copyrights, or any other intellectual property rights).

IT IS YOUR RESPONSIBILITY TO OBTAIN ANY AND ALL FORMS OF CONSENT REQUIRED UNDER ANY APPLICABLE LAWS REGARDING THE POSTING OF ANY PERSONAL INFORMATION OF OTHERS THAT IS PART OF THE USER-GENERATED CONTENT, AND TO ADHERE TO ANY APPLICABLE LAWS REGARDING SUCH INFORMATION.

Restrictions

Except as expressly permitted herein, you expressly agree that the User-Generated Content will not include any unsolicited promotions, advertising, contests or raffles.

You agree that you will not post or upload any User-Generated Content containing content that is unlawful for you to possess, post or upload under the jurisdiction in which you reside, or that would be unlawful for Empathy to use or possess in connection with the Site and/or the App (including but not limited to any content that is defamatory, libelous, pornographic, indecent, harassing, threatening, discriminatory, abusive or fraudulent).

Although Empathy has no obligation to screen, edit or monitor any of the User-Generated Content, Empathy explicitly reserves the right, at its sole discretion, to remove or edit, without giving any prior notice, any User-Generated Content available on the App at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User-Generated Content you post or store on the App at your sole expense.

License

When you upload, post, publish or make available any User-Generated Content on the App, you grant to Empathy and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, fully sub-licensable and worldwide license to use such User-Generated Content, as reasonably necessary to provide you with the Services. This includes the right to display, process, transmit and store the User-Generated Content. Empathy shall not bear any liability for any use by any third party of the User-Generated Content. 

EMPATHY TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR ANY USER-GENERATED CONTENT UPLOADED, POSTED, PUBLISHED OR MADE AVAILABLE BY YOU OR ANY THIRD PARTY IN THE APP, OR FOR ANY LOSS OR DAMAGE THERETO, NOR IS EMPATHY LIABLE FOR ANY MISTAKES, DEFAMATION, LIBEL, FALSEHOODS, OBSCENITIES OR PORNOGRAPHY YOU OR ANY OTHER THIRD-PARTY MAY ENCOUNTER VIA THE SITE AND/OR THE APP.

10. MISCONDUCT AND COPYRIGHT VIOLATION

Empathy respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or if you believe that any Content in the Site and/or the App (including User-Generated Content) is violating your privacy rights and/or is inappropriate, offensive or contains pornography, please send us a notification of such infringement containing the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the material that you claim to be infringing or to be the subject of infringing activity, and information sufficient to permit Empathy to locate the material; (iv) information that will allow Empathy to contact you, including  your address, telephone number, or email address; (v) a statement that you believe that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi)  a statement by you at the bottom of your notification exactly as follows: “I hereby declare, under penalty of perjury, that the above information is accurate and that I am the copyright or intellectual property owner or authorized to act on behalf of the copyright or intellectual property owner”. Please send us the notification as follows:

The Empathy Project Inc.

56 W. 22nd Street, 12th Floor, New York, NY 10010

Email: [email protected] 

In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of terminating accounts and/or pursuing other remedies, at our sole discretion, if we suspect that the account holder has infringed our intellectual property rights or any third party. 11. INTELLECTUAL PROPERTY RIGHTS

Subject to the terms hereof, including the Subscription Terms and, where applicable, the Provider Terms and the Empathy Services Agreement, Empathy hereby grants to you, and you accept, a limited, personal, nonexclusive, non-commercial, non-transferable, non-sublicensable and fully revocable limited license (i) to download and use the App on your authorized mobile phone, device or tablet that you own or control, solely for the limited purpose of using the App for your internal non-commercial use and for no other purpose, strictly in accordance with these Terms, the applicable Usage Rules (defined below), the Subscription Terms and where applicable the Provider Terms and Empathy Services Agreement (as applicable) and applicable law; and (ii) to use the Services and the Content provided on the Site and/or the App in accordance with the terms set forth in these Terms. Subject to the terms hereof, including the Subscription Terms and, where applicable, the Provider Terms and the Empathy Services Agreement, Empathy hereby grants to you, and you accept, a limited, personal, nonexclusive, non-commercial, non-transferable, non-sublicensable and fully revocable limited license (i) to download and use the App on your authorized mobile phone, device or tablet that you own or control, solely for the limited purpose of using the App for your internal non-commercial use and for no other purpose, strictly in accordance with these Terms, the applicable Usage Rules (defined below), the Subscription Terms and where applicable the Provider Terms and Empathy Services Agreement (as applicable) and applicable law; and (ii) to use the Services and the Content provided on the Site and/or the App in accordance with the terms set forth in these Terms.

The Site, the App, the Services, the Content and Empathy’s proprietary assets and any and all intellectual property rights pertaining thereto, including, but not limited to, inventions, patents and patent applications, trademarks, trade names, service marks, copyrightable materials and trade secrets, whether or not registered or capable of being registered (collectively, “Intellectual Property”), are owned by and/or licensed to Empathy and are protected by applicable copyright and other intellectual property laws and international conventions and treaties. All rights not expressly granted to you hereunder are reserved by Empathy and its licensors.

These Terms do not convey to you an interest in or to Empathy’s Intellectual Property, but only a limited revocable right of use in accordance with these Terms. Nothing in these Terms constitutes a waiver of Empathy’s Intellectual Property under any law.

To the extent you provide any feedback, comments or suggestions to Empathy regarding the Site and/or the App and/or the Services and/or the Content (collectively, the “Feedback“), Empathy shall have an exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into any of Empathy’s current or future products, technologies or services and to use such Feedback for any purpose, all without further compensation to you and without your approval. You agree that all such Feedback shall be deemed non-confidential. Further, you warrant that your Feedback is not subject to any license terms that would purport to require Empathy to comply with any additional obligations with respect to any of Empathy’s current or future products, technologies or services that incorporate any Feedback.

Empathy has no obligation to provide upgrades or new releases of the Site and/or the App under these Terms.

12. TRADEMARKS AND TRADE NAMES Empathy’s marks and logos and all other proprietary identifiers used by Empathy in connection with the Services (“Empathy Trademarks”) are all trademarks and/or trade names of Empathy, whether or not registered. All other trademarks, service marks, trade names and logos that may appear on the Site and/or the App belong to their respective owners (“Third-Party Marks”). No right, license, or interest to Empathy Trademarks and the Third-Party Marks is granted hereunder, and you agree that no such right, license or interest shall be asserted by you with respect to Empathy Trademarks or Third-Party Marks and therefore you will avoid using any of those marks. In addition, the look and feel of the Site and the App including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of ours and may not be copied, imitated or used, in whole or in part, without our prior written permission. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us or affiliation with us. 13. LINKS TO THIRD-PARTY SITES Certain links provided within the Site and/or the App permit our Users to leave the Site and/or the App and enter non-Empathy sites or services. These linked sites and services are provided solely as a convenience to you. These linked sites and services are not under the control of Empathy, and you agree that Empathy is not responsible for the availability of such external sites or services. Empathy does not endorse, and you agree that Empathy is not responsible or liable for, any content, including but not limited to content advertising, products or other information, on or available from such linked sites and services or any link contained in such linked sites or services. In addition, you agree that Empathy is not responsible or liable for such linked sites and services’ privacy practices and/or any other practices. Your access to, use of and reliance upon any such sites, services and content and your dealings with such third parties are at your sole risk and expense. Empathy reserves the right to terminate any link at any time. You further acknowledge and agree that Empathy shall not be responsible or liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with use of or reliance on any services, content, products or other materials available on or through such linked sites or resources. Most of these linked sites and services provide their own legal documents, including terms of use and privacy policies, governing the use thereof. It is always advisable, and we encourage you, to read such documents carefully before using those sites and services, among other reasons, in order to know what kind of information about you is being collected.

14. THIRD PARTY PLATFORMS’ TERMS To the extent that you are downloading the App from a third-party platform, service provider or distributor (“Platform Provider”), your use of the App may also be governed by usage rules that the Platform Provider may have established and that relate to your use of the App (“Usage Rules”). Certain Usage Rules are described below, but other Usage Rules may apply, and it is your responsibility to determine what other Usage Rules are applicable to your use of the App. You undertake to comply with all the applicable Platform Provider’s Usage Rules, and the Usage Rules applicable to your use of the App are incorporated herein by reference. In the event of a conflict between the Terms and the terms of any applicable Usage Rules that relates solely to the Platform Provider’s representations, warranties, restrictions on use of the App, obligations, limitation of liability (to the extent applicable to the Platform Provider) or other provisions that impose any responsibility on the Platform Provider, the terms of the applicable Platform Provider’s Usage Rules shall prevail. You represent that you are not prohibited by any applicable laws or Usage Rules from downloading and/or using the App. Any download and/or use of the App by anyone prohibited by any applicable laws or Usage Rules from downloading and/or using the App is expressly prohibited.

Apple Inc.

The following applies to you if you download or have downloaded the App from the Apple App Store (“Licensed Application“): You acknowledge and agree that (i) the license granted herein is limited to a non-transferable license to use the Licensed Application on an Apple-branded device that you own or control, (ii) these Terms are solely between you and Empathy, not Apple Inc. (“Apple“), and that Apple has no responsibility for the Licensed Application or content thereof, (iii) your use of the Licensed Application must comply with Usage Rules established by Apple, as set forth in the App Store Terms of Service effective as of the date you enter into these Terms, except that such Licensed Application may be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing; and (iv) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.

In the event of any failure of the Licensed Application to conform to any applicable warranty, you may notify Apple, and Apple may refund you the purchase price you paid, if any, for the Licensed Application. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms of Use and any law applicable to Empathy as provider of the App.

You acknowledge that Empathy, and not Apple, is responsible for addressing any claims relating to the Licensed Application or your possession and/or use thereof, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation.You acknowledge that, in the event of any third-party claim that the Licensed Application or your possession and use thereof infringes that third party’s intellectual property rights, Empathy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Use, and that, upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third-party beneficiary thereof.

15. SOCIAL MEDIA FEATURES The App and Site may include social sharing and posting features and other integrated tools (for example the Facebook “Like” and “Share” buttons, sharing and posting content via Twitter, YouTube, Facebook, Google+ and email, etc.) (the “Social Features”).The Social Features are operated by or allow for social integration with certain third-party social networks or third-party platforms (“Social Network” or “Social Network Platform”). These are created and maintained by third parties that are not affiliated with and/or controlled by Empathy. If you enable this integration, your use of the Social Features is subject to the applicable third-party Social Network or Social Network Platform’s terms of use and privacy policies. If you do not agree to the practices described in such terms, you should disable the App’s integration with such Social Networks or Social Network Platforms; however, you may find that you are not able to enjoy all of the features available on our Services. Empathy is not responsible and has no liability for your use of such Social Networks or Social Network Platforms. 16. SPECIAL PROVISIONS RELATING TO THIRD-PARTY COMPONENTS

The Site and/or the App may use or include third-party software, files and components that are subject to open source and third-party license terms (“Third Party Components”). Your right to use such Third-Party Components as part of, or in connection with, the Site and/or the App is subject to any applicable acknowledgements and license terms accompanying such Third-Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third-Party Components and these Terms, the licensing terms of the Third-Party Components shall prevail in connection with the related Third-Party Components. These Terms do not apply to any Third-Party Components accompanying or contained in the Site and/or the App, and Empathy disclaims all liability related thereto. You acknowledge that Empathy is not the author, owner or licensor of any Third-Party Components, and that Empathy makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of Third-Party Components. Under no circumstances shall the Site and/or the App or any portion thereof (except for the Third-Party Components contained therein) be deemed to be “open source” or “publicly available” software.

17. AVAILABILITY 

The Site, App and Services’ availability and functionality depends on various factors, such as communication networks. Empathy does not warrant or guarantee that the Site, App and/or Services will operate and/or be available at all times without disruption or interruption, nor that it will be immune from unauthorized access or error-free. 18. CHANGES TO THE SITE AND/OR THE APP

Empathy reserves the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently, the Site and/or the App (or any part thereof, including but not limited to the Services provided and the Content) without notice, at any time. In addition, you hereby acknowledge that the Content provided on the Site and/or the App may be changed, extended in content or form, or removed at any time without any notice to you. You agree that Empathy shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site and/or the App or the Content included therein. You hereby agree that Empathy is not responsible for any errors or malfunctions that may occur in connection with performing such changes.

If Empathy supplies to you any updates, upgrades or new versions of the App (“Updates“) according to its then-current policies, it may include automatic updating or upgrading of the App with or without any additional notice to you, and the Terms will govern any such Updates, unless these are accompanied by a separate license agreement, which will prevail, and all references herein to the App shall include such Updates. For clarity, Empathy has no obligation to provide Updates.

19. DISCLAIMER OF WARRANTIES TO THE FULLEST EXTENT LEGALLY PERMISSIBLE, THE SITE AND/OR THE APP AND/OR THE CONTENT AND/OR THE USER-GENERATED CONTENT AND/OR THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND EMPATHY, INCLUDING ITS VENDORS, OFFICERS, SHAREHOLDERS, SUB-CONTRACTORS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, LICENSORS, AGENTS AND SUPPLIERS (COLLECTIVELY, “EMPATHY’S REPRESENTATIVES”), DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SITE AND/OR THE APP AND/OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, IMPLIED WARRANTIES OF USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR COURSE OF PERFORMANCE. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS THAT THIS AGREEMENT CANNOT CHANGE.

THE SITE AND/OR THE APP AND/OR THE SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NEVER BE CONSTRUED OR BE USED AS A SUBSTITUTE FOR LEGAL, TAX, FINANCIAL, HEALTH OR OTHER PROFESSIONAL ADVICE. LAWS DIFFER BY STATE AND COUNTRY AND WE CANNOT GUARANTEE THE ACCURACY OF THIS INFORMATION FOR YOUR PARTICULAR SITUATION OR JURISDICTION. YOU SHOULD CONSULT AN EXPERIENCED ATTORNEY, TAX PROFESSIONAL, FINANCIAL ADVISOR OR HEALTH PROFESSIONAL CONCERNING YOUR SPECIFIC SITUATION. EMPATHY AND EMPATHY’S REPRESENTATIVES DO NOT, EITHER EXPRESSLY OR IMPLICITLY IN ANY MANNER, ASSUME ANY RESPONSIBILITY FOR ANY LOSS OR DAMAGES INCURRED AS A RESULT OF, OR IN CONNECTION WITH, THE USE OF THE SITE AND/OR THE APP AND/OR THE SERVICES OR ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN IN RELIANCE ON THE SITE AND/OR THE APP AND/OR THE USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE CARE TEAM SERVICE). 

EMPATHY DOES NOT WARRANT THAT (I) THE USE AND OPERATION OF THE SITE AND/OR THE APP IS OR WILL BE SECURE, TIMELY, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERRORS, OR FREE OF VIRUSES, DEFECTS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS, (II) EMPATHY WILL CORRECT ANY ERRORS OR DEFECTS IN THE SITE AND/OR THE APP, (III) THE SITE AND/OR THE APP WILL BE INTEROPERABLE OR COMPATIBLE WITH YOUR DEVICE, OTHER SOFTWARE, HARDWARE, OR ANY EQUIPMENT, AND EMPATHY’S REPRESENTATIVES ARE NOT RESPONSIBLE FOR ANY LOSSES SUFFERED RESULTING FROM INTEROPERABILITY OR COMPATIBILITY PROBLEMS. WE DO NOT MAKE ANY REPRESENTATION REGARDING THE USE, INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OF THE SITE AND/OR THE APP AND/OR CONTENT AND/OR USER-GENERATED CONTENT AVAILABLE THEREON OR THROUGH THE APP (INCLUDING THAT THE RESULTS OF USING THE SITE AND/OR THE APP WILL MEET YOUR REQUIREMENTS).

EMPATHY IS NOT RESPONSIBLE AND HAS NO LIABILITY FOR ANY ITEM OR SERVICE PROVIDED BY ANY PERSON OR ENTITY OTHER THAN EMPATHY.

WE ARE NOT RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR OTHERS THAT MAY RESULT FROM TECHNICAL PROBLEMS (INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET, SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION, OVERLOAD OF SERVERS, DELAYS OR INTERRUPTIONS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.

YOU AGREE THAT THE USE OF THE SITE AND/OR THE APP AND/OR THE CONTENT AND/OR THE USER-GENERATED CONTENT IS ENTIRELY AT YOUR OWN RISK.

INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY. 20. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE UNDER LAWS IN YOUR JURISDICTION, IN NO EVENT SHALL EMPATHY, INCLUDING EMPATHY’S REPRESENTATIVES, BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO: DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY (INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, TORT OR STRICT LIABILITY), INCLUDING WITHOUT LIMITATION LOSS OF GOODWILL, PROFITS, OR DATA AND BUSINESS INTERRUPTION RESULTING FROM OR ARISING OUT OF (I) THE USE OR INABILITY TO USE THE SITE AND/OR THE APP AND/OR THE SERVICES AND/OR THE CONTENT, (II) THE FAILURE OF THE SITE AND/OR THE APP TO PERFORM AS DESCRIBED OR EXPECTED, (III) ANY UNAUTHORIZED ACCESS TO, USE OF OR OTHER SECURITY INTRUSIONS REGARDING THE DATA PROCESSED BY US AS PART OF PROVIDING THE SERVICES, (IV) THE PERFORMANCE OR FAILURE OF EMPATHY TO PERFORM ITS DUTIES UNDER THESE TERMS (INCLUDING BY BREACH OF WARRANTY, GUARANTEE OR CONDITION), AND/OR (V) ANY OTHER ACT OR OMISSION OF EMPATHY OR EMPATHY’S REPRESENTATIVES BY ANY OTHER CAUSE WHATSOEVER, REGARDLESS OF WHETHER EMPATHY (OR EMPATHY’S REPRESENTATIVES) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, EMPATHY AND EMPATHY’S REPRESENTATIVES’ TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SITE AND/OR THE APP AND/OR THE SERVICES OR THE CONTENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, TO EMPATHY FOR USE OF THE SITE AND/OR THE APP OR US $100.00, WHICHEVER IS GREATER. THE LIMITATION OF LIABILITY PROVISIONS THAT APPLY TO ANY RESPONSIBILITIES OF THE APPLICABLE PLATFORM PROVIDER ARE SET FORTH IN THEIR APPLICABLE USAGE RULES. YOU WILL NOT, AND WAIVE ANY RIGHT TO, SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES FROM US OR FROM EMPATHY’S REPRESENTATIVES.

INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.

21. INDEMNIFICATION You agree to defend, indemnify and hold harmless Empathy and Empathy’s affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, attorneys, licensors, suppliers, successors, and assigns  from and against any and all claims, damages, obligations, losses, liabilities, costs, debts and expenses (including but not limited to attorneys’ fees) arising from: (i) your use, misuse of, inability to use and/or activities in connection with the Site and/or the App and/or the Content and/or the User-Generated Content and/or the Services; (ii) your violation of any of these Terms and any of the Provider Terms; (iii) your violation of any third-party rights, including without limitation any intellectual property rights or privacy rights of such third parties with respect to your use of the Services; and (iv) any damage of any sort, whether direct, indirect, special or consequential, that you may cause to any third party with relation to the Site and/or the App. It is hereby clarified that this defense and indemnification obligation will survive these Terms.

Without derogating from the foregoing, we reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification by you, which will not excuse your indemnity obligations hereunder and in which event you will fully cooperate with us in asserting any available defense. You agree not to settle any matter subject to an indemnification by you without first obtaining our prior express written approval. 22. TERMINATION OR SUSPENSION These Terms shall remain in effect until terminated as set forth herein. Notwithstanding, if the Services are offered to you pursuant to an Empathy Services Agreement, your Account shall remain in effect for the term set forth in the Empathy Services Agreement, and if no such term is stipulated in the Empathy Services Agreement, your subscription shall remain in effect for a period of 12 months following its initial activation date.

Important Note Regarding Data Access Upon Account Termination or Expiration:

Upon expiration or termination of your Account, for any reason whatsoever, all data and materials associated with your Account, including without limitation records, communications, and User-Generated Content uploaded to the App or otherwise created in connection with your use of the App and Services, shall no longer be accessible to you or anyone on your behalf and may be permanently deleted by Empathy. Following your Account’s expiration or termination, you shall not have the ability to access said data and materials.

It is your sole responsibility to download locally all Account data and materials prior to expiration or termination of your Subscription and/or Account. Empathy shall bear no liability of any kind with regard to loss of data or materials following the expiration or termination of your Subscription and/or Account. You hereby release and hold harmless Empathy from any and all claims, damages, or other liabilities in connection with loss of access to data or materials after the Subscription and/or Account termination or expiration.

Your failure to comply with the provisions of these Terms shall terminate your license and these Terms. In the event of your failure to comply with these Terms, Empathy may immediately temporarily or permanently limit, suspend or terminate your Account. If you object to any term hereof, as may be amended from time to time, or become dissatisfied with the Services, you may terminate these Terms at any time by uninstalling our App and stopping your use of the App and Site and Services, and this will be your sole remedy in such circumstances. 

Upon termination of these Terms: (i) the license and all other rights granted to you hereunder will automatically terminate, (ii) you must immediately cease all use of the Services, delete and destroy all copies of the App in your possession or control and so certify to Empathy if required by it, and (iii) the provisions of these Terms that, by their nature and content, must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms shall so survive. Without limiting the generality of the forgoing, the Intellectual Property, Disclaimer of Warranties, Limitation of Liability, Indemnification and General sections will survive the termination of the Terms.

Additionally, Empathy may at any time, at its sole discretion, cease the operation of the App and/or Site and/or Services or any part thereof temporarily or permanently, delete any information from the Site and/or the App, or correct, modify, amend, enhance, improve and make any other changes thereto or discontinue displaying or providing any information, content or features therein, without giving any prior notice. You agree and acknowledge that Empathy does not assume any responsibility with respect to or in connection with the termination of the Site’s and/or the App’s operation and loss of any data. 

We note that, without limitation, we can suspend or terminate access to your Account if we believe, at our sole discretion, that one (or more) of the following events has occurred: (a) there is a risk to the security or privacy of your Account; (b) there is a threat to the security or integrity of our network or our servers; (c) suspension is needed to protect the rights, property or safety of Empathy, its Users or the public; (d) there is a basis for termination of your Account; (e) you have violated these Terms or the Provider's Terms (if applicable); and/or (f) we are required to by law. We may provide you a notice in the event of any such suspension. During such suspension, you will not have the ability to use or access your Account. In the event that we will determine, at our sole discretion, that the reason for the suspension of access to your Account has been resolved, we may restore access to your Account. 23. EXPORT AND THE LOCATION OF THE USER The App may be subject to export control laws of the State of the United States and of Canada, and/or may be subject to additional export control laws applicable to the User or in the User’s jurisdiction, including, without limitation, the United States and Canada. The User agrees that he/she will not ship, transfer or export the App into any country, or make available or use the App in any manner, prohibited by applicable laws. 

In addition, the User represents and warrants that (i) he/she is not located in a country that is subject to a United States or Canadian government embargo, or that has been designated by the United States or Canadian government as a “terrorist-supporting” country; and (ii) that the User is not named on any United States or Canadian government list of prohibited or restricted parties.

24. MINORS To use the App, Site (and the related Services) you must be over the age of eighteen (18). We reserve the right to request proof of age at any stage so that we can verify that minors under the age of eighteen (18) are not using the App and/or Site (and the related Services). In the event that it comes to our knowledge that a person under the age of eighteen (18) is using the App and/or Site (and the related Services), we will prohibit and block that User from accessing the App and will make all efforts to promptly delete any Personal Information (as such term is defined in our Privacy Policy) with regard to such User. 25. DISPUTE RESOLUTION PLEASE READ THIS SECTION CAREFULLY, AS IT AFFECTS YOUR RIGHTS.

Arbitration. For Users residing in the United States, the parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. All claims arising out of or relating to these Terms and your use of the App and/or Site and/or Service shall be finally settled by binding arbitration administered by the JAMS Alternative Dispute Resolution (“JAMS”) in accordance with the provisions of its Commercial Arbitration Rules and of its supplementary procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitration will be held in the State of New York, or any other location as to which we may then mutually agree. For Users residing in Canada, any disputes shall be resolved in the courts of the User's province of residence, and the laws of such province shall govern these Terms. A party seeking arbitration or legal action must first send to the other, by certified mail, a written notice of dispute. 

Any notice to Empathy should be addressed to The Empathy Project Inc. 56 W 22nd Street, 12th Floor, New York, NY 100101, U.S.A., Attention: Legal Counsel. Any notice to you shall be sent to your address as set forth in your Empathy account or such other legal address as Empathy is able to identify.

Users residing in the U.S. hereby acknowledge that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.

Class-Action Waiver. For Users residing in the United States, you further agree that any arbitration shall be conducted in your individual capacity only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exceptions. For Users residing in the U.S., without first engaging in arbitration or the informal dispute-resolution process described above, either such User or Empathy may assert claims, if they qualify, in small claims court in New York or any United States county where the Parties reside or work. Empathy may bring a lawsuit against Users residing in the U.S. in any court of competent jurisdiction solely for injunctive relief to stop any unauthorized use or abuse of the Services or intellectual property infringement.

Thirty-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: The Empathy Project Inc., 56 W 22nd Street, 12th Floor, New York, NY 100101, U.S.A., Attention: Legal Counsel. The notice must be sent within 30 days of registering to use the Services; otherwise, you shall be bound to arbitrate disputes in accordance with these Terms. If you opt out of these arbitration provisions, Empathy also will not be bound by them. If you opt out, all other parts of these Terms will continue to apply to you.

26. CHANGES TO THE TERMS

Empathy may, at its sole discretion, change these Terms from time to time, including any other policies incorporated thereto, so please revisit this page frequently. In case of any material change, we will make reasonable efforts to post a clear notice on the Site and/or the App, and/or we will send you an email (to the extent that you provided us with your email address) regarding such change. Such material changes will take effect seven (7) days after such notice is provided on the Site and/or the App or sent via email, whichever is earlier. Otherwise, all other changes to these Terms are effective as of the stated “Last Revised” date, and your continued use of the Site and/or the App on or after the Last Revised date will constitute acceptance of, and agreement to be bound by, those changes. In the event that the Terms should be amended to comply with any legal requirements, the amendments may take effect immediately, or as required by the law and without any prior notice.

27. GENERAL (a) These Terms constitute the entire terms and conditions between you and Empathy relating to the subject matter herein and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and Empathy. (b) Any claim relating to the Site and/or the App and/or Services or the Content contained therein will be governed by and interpreted in accordance with the laws of the State of New York, U.S., without reference to its conflict-of-laws principles and the United Nations Convention Relating to a Uniform Law on the International Sale of Goods may not be applied. Notwithstanding the foregoing, for Users residing in Canada, any such claims will be governed by and interpreted in accordance with the laws of the User’s province of residence. (c) You agree to waive all defenses of lack of personal jurisdiction and forum non-conveniens and agree that process may be served in a manner authorized by applicable law or court rule. Notwithstanding the foregoing, Empathy may seek injunctive relief in any court of competent jurisdiction. (d) These Terms do not, and shall not, be construed to create any relationship, partnership, joint venture, or employer-employee, agency, or franchisor-franchisee relationship between the parties hereto. (e) No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. (f) You acknowledge and agree that any cause of action that you may have arising out of or related to the Site and/or the App or the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. (g) If any provision hereof is adjudged by any court of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein. (h) You may not assign or transfer these Terms (including all rights and obligations hereunder) without our prior written consent, and any attempt to do so in violation of the foregoing shall be void. We may assign or transfer these Terms without restriction or notification. (i) No amendment hereof will be binding unless in writing and signed by Empathy. (j) The parties agree that all correspondence relating to these Terms shall be written in the English language, and in the case of Users residing in Canada, in the English and/or French language.

If you have any questions (or comments) concerning these Terms, please send us an email at this address: [email protected]