THESE CONDITIONS GOVERN THE NON-EXCLUSIVE LICENSE TO USE EMPATICA INC. EMPATICA MOBILE APPLICATION (THE “APP”), BY DOWNLOADING, INSTALLING OR USING THE APP, THE END USER (“USER” OR “YOU”) AGREES THAT IT HAS READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL OR USE THE APP.
A list of the definitions of the terms used in this license agreement is given below:
“App“ shall mean the EMPATICA mobile application, which may be downloaded from the EMPATICA website or applicable app stores and used with a Device.
“Caregiver(s)“ shall mean the person(s) designated by the User to receive calls and/or SMS messages via the App.
“Device” shall mean any hardware device that enables use of the App (as an example, tablets and smartphones).
“EMPATICA” shall mean Empatica Inc., a company incorporated under the Laws of Delaware, with registered office at 1 Broadway, 14th Floor Cambridge, MA 02142.
“Agreement“ shall mean this End User License Agreement, which governs the use of the App by the User, as amended by EMPATICA from time to time.
“User“ shall mean the App user.
Subject to the terms and conditions of this Agreement, EMPATICA hereby grants to the User a non-transferrable and non-exclusive license to install and use an object code copy of the Application on one Device owned or leased solely by the User. The User must have a Device that is compatible with the App, and is solely responsible for the installation, configuration and maintenance of the App and all related software, hardware and other devices. EMPATICA does not warrant that the App will be compatible with all mobile devices. Standard carrier data charges may apply to the use of the App and/or use of text messaging and User is solely responsible for such charges.
The App connects to computer systems and mobile devices over the Internet, which may include connections via wireless and wired networks. Use of the App operates as the User’s consent to the transmission of standard device information (including but not limited to technical information about the Device and application software and/or the User’s wireless services). The User shall use the App in accordance with and within the limitations of this Agreement. The User cannot transfer or grant to a third party their rights deriving from this Agreement without the prior written consent of EMPATICA. The User hereby agrees to adopt any measure necessary to protect the App from any unauthorized use, reproduction, distribution or publication. The User shall not (1) copy, publish or otherwise reproduce the App; (2) alter, decompile, disassemble, decode or try to unlock or bypass the initialization system and/or technical security measures used by the App; (3) modify, adapt, translate, rent, lend the App or create derivative works from it; (4) remove or modify logos and trademarks of EMPATICA or of any other entity in the App.
You need not register with us to simply download and install the App. However, in order to access certain features of the App, you must successfully register for an account with EMPATICA. You are responsible for maintaining the confidentiality of your account password and for all activities that occur using your account. You agree not to share, let anyone else access or do anything else that might jeopardize the security of your password. You agree to notify EMPATICA if your password is lost, stolen or disclosed to an unauthorized third party, if there is any unauthorized use of your password or account, or if you learn of any other breach of security in relation to EMPATICA or the App.
The App is a notification system with respect to specific events that may be detected by a device connected to the App. You acknowledge and agree that the App is not an adequate substitute for a person being present who directly monitors you and brings aid at a time of need.
Upon activation, you must configure the App to call and/or send a text message to one or more Caregiver(s) and provide their contact information. The User is solely responsible for compliance with applicable data protection laws when providing the Caregiver(s) contact information and for verifying that the Caregiver(s) are willing, able, and available to accept and to receive these calls and/or text messages.
You agree to choose Caregiver(s) who are informed about the risks associated with the events the App might detect. You acknowledge that you will communicate to them that these events may range from no risk to the (low but real) risk of death following an event that the App might (or might not) detect. You agree to ask Caregiver(s) to arrive immediately (within a minute or two, “as fast as possible”) of an event that might trigger an alert. You agree that Empatica and the App do not provide medical advice and that you will follow the medical advice of your doctor, and will provide Caregiver(s) with your doctor’s best advice about what to do when they arrive.
EMPATICA cannot verify or influence and shall not be liable in respect of any conduct of the Caregiver(s). The User shall indemnify and hold harmless EMPATICA from any claim, action or demand of the Caregiver(s) arising from the use of the App, including any claim resulting from a harmful action or lack of action provided by the Caregiver(s).
You acknowledge and agree that, while EMPATICA intends for the App’s features to be highly reliable and available, EMPATICA cannot guarantee reliability. Empatica cannot guarantee that a call or text message will reach any Caregiver. You acknowledge and agree that the App may fail to work with unexpected interruptions, including, without limitation, due to reasons such as loss of Internet connectivity, power outages, equipment failure or breakdown, telecommunication service provider failures, and third party software or hardware issues.
For example (and not by way of limitation), the App may not operate correctly and promptly for reasons such as:
EMPATICA shall not be liable or responsible for any loss or damage whatsoever related to the use of the App and/or any services provided through the User’s use of the App.
The User shall not use the App to: (i) harm others, engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) damage, disable, overburden, or impair the App or the networks or servers that operate services related to the App; (iii) resell or redistribute the App; (v) abuse, harass, stalk or otherwise violate the legal rights of a third party; (vi) share passwords or other access information or devices or otherwise authorize, allow or enable any third party to access or use the App; (vii) gain or try to gain unauthorized access to any data, account or network by any means or (vii) violate any law, statute, ordinance or regulation.
You agree to pay all applicable fees related to your use of the App and/or the services that EMPATICA provides via the App based on EMPATICA's fees, charges, and billing terms then in effect. All fees are based on services purchased, regardless of actual usage. If you do not pay on time or if EMPATICA cannot charge your payment method for any reason, EMPATICA reserves the right to either suspend your access to your account and/or terminate these Terms. By providing a payment method, you expressly authorize us to charge the applicable fees to your payment method at regular intervals as well as any taxes and other charges incurred in connection with your account, all of which depend on your particular subscription and utilized services.
If you sign up for a paid subscription ("Paid Subscription"), we will charge your credit card for your first fee on the date that we process the order for your Paid Subscription.
IMPORTANT NOTICE: Unless you cancel prior to the expiration of your current Paid Subscription, we will automatically renew your Paid Subscription on each monthly or yearly (depending on the subscription length you have chosen) anniversary of the date that we charged your credit card for the first Paid Subscription fee. If you sign up for a Paid Subscription that includes a free-trial period, unless you have cancelled your subscription prior to the expiration of the free-trial period, we will automatically charge you for the first monthly or yearly membership fee upon the expiration of the free trial period and upon each subsequent membership fee on the anniversary of the date of the first billing. We will charge your credit card with the applicable renewal fee for your Paid Subscription and any Taxes (as defined below) that may he imposed on such fee payments. Subscriptions must be cancelled prior to the applicable renewal date. You may cancel your Subscription by contacting customer support at firstname.lastname@example.org. Subscription fees charged prior to the effective date of cancellation will not be refunded, in whole or in part.
All fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes. tariffs or other amounts attributable to your use of the App or EMPATICA's services (collectively. "Taxes"). You are solely responsible for the payment of any such Taxes. In the event we are required to pay Taxes on your behalf, you shall promptly reimburse us for all amounts paid.
You agree that we may charge any unpaid fees to your provided payment method and/or send you a bill for such unpaid fees.
Cancellation of your subscription (paid or free) will terminate this Agreement. This Agreement may also be terminated by EMPATICA in case of breach of the provisions of this Agreement by the User. At the time of termination, the User shall delete the App and any copy thereof. EMPATICA reserves the right to seek any other remedy provided by the applicable laws in case of breach by the User.
The App contains proprietary and confidential information that is protected by applicable intellectual property laws. User hereby acknowledges and agrees that all copyrights, database rights, trademarks and other intellectual property rights of any kind in the App, and all contents thereof, together with the underlying software code, are exclusively owned by EMPATICA and/or related parties thereof. Except as expressly stated herein, this Agreement does not grant the User any intellectual property rights in the App, and all rights not expressly granted are reserved by EMPATICA and its licensors.
EMPATICA, the EMPATICA logo, and all custom graphics, page headers, button icons, proprietary product and service names, and trade dress are either trademarks or registered trademarks of EMPATICA and/or its licensors in the United States and/or other countries, and may not be used, in whole or in part, without the prior written permission of EMPATICA.
THE APP IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND EMPATICA AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EMPATICA DOES NOT REPRESENT OR WARRANT THAT THE APP, ITS USE, OR ANY RESULTS GENERATED THEREFROM ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. NEITHER EMPATICA NOR ITS LICENSORS OR SUPPLIERS REPRESENT OR WARRANT THAT THE APP OR EMPATICA’S SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT, BUT THIS SHALL NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE APPLICATION AFTER TERMINATION HEREOF.
YOU ARE SOLELY RESPONSIBLE FOR ALL COMMUNICATIONS AND INTERACTIONS WITH PERSONS WITH WHOM THE APP COMMUNICATES OR INTERACTS AS A RESULT OF YOUR USE OF THE APP, INCLUDING WITHOUT LIMITATION, ANY CAREGIVER(S). EMPATICA MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF SUCH THIRD PARTIES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH ALL OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT WITH AS A RESULT OF THE USE OF THE APP. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE DISCLAIMERS OF THIS SECTION MAY NOT APPLY TO YOU.
EMPATICA’S MAXIMUM LIABILITY FOR ANY LOSS OR DAMAGE DERIVING FROM CLAIMS, REQUESTS OR ACTIONS BROUGHT IN RELATION TO THE USE OF THE APP AND/OR THIS AGREEMENT, OR RELATED THERETO, SHALL NOT EXCEED THE PURCHASE PRICE PAID (IF ACTUALLY PAID) BY THE USER FOR THE APP’S LICENSE. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, UNDER NO CIRCUMSTANCE SHALL EMPATICA, ITS LICENSORS, OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY OR DEATH, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL OR PERSONAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO USER'S USE OF OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF EMPATICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EMPATICA SHALL NOT BE LIABLE FOR ANY ERRORS AND/OR OMISSIONS RELATED TO THE SERVICES PROVIDED BY THIRD PARTIES (E.G., TELEPHONE AND DATA TRANSMISSION OPERATORS). EMPATICA SHALL NOT BE LIABLE FOR ANY ERRORS AND/OR OMISSIONS DUE TO MALFUNCTIONING OF THE DEVICE.
The following additional terms and conditions apply with respect to any application that EMPATICA provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
The following additional terms and conditions apply with respect to any application that EMPATICA provides to you designed for use on an Android-powered mobile device (an “Android App”):
If any provision of this Agreement is determined to be invalid or unenforceable under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
By using the App, User expressly consents and agrees to accept and receive electronic communications from EMPATICA, including via e-mail, text message, calls, and push notifications to the Device. These electronic communications are part of User’s relationship with EMPATICA. User agrees that any notices, agreements, disclosures or other communications that EMPATICA sends via email will satisfy any legal communication requirements, including that such communications be in writing.
The User may not use or otherwise export or re-export the App except as authorized by U.S. law and the laws of the jurisdiction in which the App was obtained. By using the App, the User represents and warrants that (a) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (b) the User is not on any U.S. government list of prohibited or restricted parties.
This Agreement constitutes the entire contract with the User with respect to the App and supersedes any and all previous or concurrent contract, agreement and arrangement related to the scope of this Agreement.
This Agreement of the User’s use of the App shall be governed and construed under the laws of the Commonwealth of Massachusetts without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) are specifically disclaimed. In the event of any disputes concerning this Agreement, EMPATICA and the Users agree to submit such disputes to the exclusive jurisdiction of the federal and state courts located in Suffolk County, Massachusetts. Notwithstanding the foregoing, EMPATICA may seek injunctive relief in any court of competent jurisdiction, without posting bond, to enjoin any breach of this Agreement, in addition to any other rights or remedies EMPATICA may have available at law or in equity.