Terms of Service
Hello and welcome to Embr Labs! We will use a few terms in these Terms:
- “Terms”: these Terms of Service, which are a legally binding agreement that governs your access to our Services
- “Embr Labs”, “we”, “us” or “our”: Embr Labs, Inc.
- “you” or “your”: you
- “Site”: embrlabs.com and its subdomains
- “App”: each downloadable application we make available to you
- “Products”: means the products we offer from time to time, including our Embr™ Wave product
- “Services”: any software or services we make available to you, including the Site or App
Before you click on the “I accept” button, download our app or use our services, read these terms carefully. By clicking on the “I accept” button, downloading our app or using our services, you are agreeing to be bound by and are becoming a party to these terms. You represent and warrant that you have the authority to enter into these terms on behalf of any group or entity you represent, if applicable. You hereby covenant to ensure that all users that gain access to our app or services from you are bound by these terms. If you do not agree to all of these terms, then do not click “I accept” and you will not be permitted to access and/or use our services. If you do not agree to these terms, then do not use our services, including our site or app.
THESE TERMS contain an Agreement to Arbitrate, which (i) requires that you and EMBR LABS, INC. arbitrate certain claims BY BINDING, INDIVIDUAL ARBITRATION instead of going to court and (ii) limits class action claims, unless you opt out of the Agreement to Arbitrate as described in the arbitration section (see SECTION 21).
1. Acceptance of Terms
These Terms are a legal agreement between you (together with the group or entity, if any, that you represent) and Embr Labs, establishing terms and conditions under which you access and use our Services. The date you first agree to or accept these Terms, or that you otherwise first access and use our App or Services following the date these Terms are first made available on the Site, is the “Effective Date.”
Please review these terms before using our services, as they may have changed since your last visit. If you are viewing this on your mobile device, you can also view these terms via a web browser at www.embrlabs.com/eula. By using our services, including our site or app, you represent to us that you are at least 13 years old and hereby indicate your unconditional acceptance of these terms.
Embr Labs reserves the right to revise these Terms in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on our Site. Revisions to the Terms are effective upon the first renewal of your subscription following such posting. Your subscription or renewal of your subscription to our Services after a revised version of these Terms has been posted on our Site constitutes your binding acceptance of the revised Terms.
If you wish to use our Services on behalf of a company, group, organization or other entity, then you represent and warrant that you: (a) have the authority to bind such entity to these Terms and (b) agree to be bound by these Terms on behalf of such entity.
2. Scope of Services
We may alter, suspend, discontinue or subcontract our Services in whole or in part, at any time and for any reason, without notice. Our Services may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons. In order to use our Services, you must have a computer with Internet access that can access our Site or a compatible mobile device enabled with our application.
When using our Services your telecommunications carrier’s normal rates and charges apply. We are not responsible for any charges you incur from your telecommunications carrier as a result of your use of our Services. You are responsible for ensuring that, at all times while using our Services, you are not in violation of your agreement with your telecommunications carrier.
a. Subject to these Terms and any other agreement between you and us, we grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to use our Services solely in the manner enabled by us and for your personal, non-commercial use. Your license to use our Services is automatically revoked if you violate these Terms. From time to time, we may upgrade our Services or make improvements to our Services. You agree that these Terms will apply to any such upgrades or improvements. The foregoing license grant is not a sale of any aspect of our Services or a sale of a copy of any aspect of our Services, and we and our partners and suppliers retain all right, title and interest in our Services. We reserve all rights not expressly granted under these Terms.
4. Login Credentials; Social Networks
c. Acknowledgement for You to Receive Communications. You hereby agree:
- to receive emails and push notifications (if you use our App) from us regarding the Services or about your use of our Services
- to receive communications, including emails, text messages, push notifications, mail and telephone calls, that includes User Content or are related to the Services.
- that any communications from us may also include marketing materials from us or from third parties.
- that any notices, agreements, disclosures or other communications that we send to you electronically are deemed to satisfy any legal communication requirements.
5. Fees and Payments
- We may offer certain features, functionality or services for a fee through our Services from time to time.
- We may offer different tiers of subscriptions from time to time (each, a “Subscription Plan”). Each Subscription Plan may provide you with different levels of access to our Services as we make available from time to time. We may charge you a subscription fee in respect of your Subscription Plan (the “Subscription Fee”). You acknowledge that Embr Labs reserves the right to modify the Subscription Fee and billing methods after providing you at least thirty (30) days’ notice, effective upon the renewal of your then current subscription. The Subscription Fee for access to your Subscription Plan may be paid by you in advance through payment methods provided for on the Site from time to time. You agree and acknowledge that all monthly or annual subscription subscriptions will be automatically renewed at the applicable Subscription Fee on a month-to-month or a year-to-year basis, as applicable, basis, unless such subscription subscription is cancelled or terminated or unless, prior to such renewal, you cancel the automatic renewal feature as provided through your account dashboard provided in our Services.
- From time to time, we may offer trials of different Subscription Plans at discounted rates or for free (each, a “Trial”). Some Trials may require you to provide your payment details. At the end of such Trials, we may begin charging you the Subscription Fee for the applicable Subscription Plan on an automatic basis as provided in the section above. By providing your payment information while signing up for a Trial, you agree to such charges. You may avoid these charges by canceling your subscription subscription as provided in the section above.
- Any disputes about any fees under these Terms must be submitted to us in writing within 60 days of the date such fees are incurred. You agree to waive all disputes not brought within the 60 day period, and all such fees will be final and not subject to challenge.
- Payment Methods and Currency. You agree that we may charge your payment method for any Services you purchase or subscribe to and for any additional amounts (including but not limited to any taxes and late fees, as applicable) that may be accrued by or in connection with the account associated with your Login Credentials (as defined above). All payments must be made in United States Dollars.
- Refunds. Except as may be set forth on our Site from time to time, we have no obligation to provide refunds or credits.
6. User Content
Embr Labs does not claim any ownership rights in the content posted to our Services (collectively, “User Content”). You represent and warrant to us that you own the User Content posted by you or that you otherwise have sufficient right, title and interest in and to such User Content to grant us the licenses and rights set forth below without violating, infringing or misappropriating the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person. You agree to pay all royalties, fees and any other monies owed to any person by reason of any User Content posted by you.
After posting User Content to our Services you continue to retain such responsibility for and rights in such User Content as you held prior to posting such User Content on our Services. By posting any User Content to our Services, you hereby grant to us a non-exclusive, perpetual, royalty-free, transferable, sublicensable, worldwide, irrevocable license to use, display, reproduce, adapt, modify, re-arrange and distribute your User Content for any purpose relating to the Services through any manner, mode of delivery or media now known or developed in the future. You retain sole authorship responsibility for any User Content you post to our Services regardless of whether we modify your User Content.
You may not use the Services for sending unsolicited messages (also known as “spam”). You are responsible for ensuring that your use of the Services does not generate spam or other complaints. We may terminate your access to or use of the Services if you generate such complaints, as determined by us in our sole discretion.
We reserve the right without notice to take all measures of any nature to prevent unsolicited messages from being transmitted using the Services.
You agree that you are the sole or designated “sender” (as defined in the CAN-SPAM Act of 2003 and any rules or regulations adopted thereunder (the “CAN-SPAM Act”)), to the extent applicable to your messages, or, as applicable, the sending party as such sending party is defined in the relevant law in the relevant jurisdiction, of any message you send using the Services.
Any message you send using the Services shall (i) accurately and in a non-deceptive manner identify you, (ii) not contain any deceptive or misleading content regarding the message’s subject matter, and (iii) include your valid physical address. You shall ensure that each message you send complies with the CAN-SPAM Act, if applicable.
You will not use the Services to send any messages for advertising or promotional purposes (a “commercial electronic mail message” as defined in the CAN-SPAM Act or as such communication would be defined under any other applicable law) to anyone who has opted out or otherwise objected to receiving such messages. You acknowledge and agree that the Services are not intended for commercial messages.
You shall only use the Services for lawful purposes in compliance with these Terms and all other applicable national, state, local and international laws in your jurisdiction, including the CAN-SPAM Act, other similar laws in non-US jurisdictions, to the extent applicable; any laws or regulations related to unsolicited messages, spam, privacy, obscenity, defamation, copyright and trademark infringement and child protective email address registry laws; and any laws applicable to the content of your messages or otherwise to your use of the Services.
If you are subject to a particular law or regulation and you use our Services, then we will not be liable if our Services do not meet the applicable requirements under such law or regulation.
8. Prohibited Conduct
We reserve the right, without prior notice and in our sole discretion, to decide whether your use of our Services violates these Terms for any of the above or below reasons or for any other reason, and if we do so, we may terminate your access to our Services and delete your User Content.
You shall not, and shall not authorize or facilitate any attempt by another person to use our Services to:
- Damage, disable, overburden, impair or interfere with any other party’s use of our Services;
- Obtain or attempt to obtain any materials or information through any means not intentionally made available through our Services;
- Use false or misleading information in connection with your user account or impersonate any other person living or dead, (you acknowledge that we reserve the right to disable any user account with a profile that we reasonably believe is false or misleading, including a profile that impersonates a third party);
- Upload or send any User Content that is unlawful, harmful, threatening, abusive, harassing, hateful, disparaging, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious or otherwise objectionable, as determined by Embr Labs in its sole discretion;
- Upload or send User Content that depicts or advocates the use of illegal drugs, that characterizes violence as acceptable, glamorous or desirable, or that encourages conduct that would constitute a criminal or civil offense;
- Upload or send User Content that infringes another’s copyright, trademark or trade secret;
- Upload or send unsolicited advertising or unlawfully promote products or services;
- Harass, threaten, stalk or intentionally embarrass or cause distress to another person or entity;
- Promote, solicit, or participate in any multi-level marketing or pyramid schemes;
- Exploit children under 18 years of age;
- Invade the privacy of any person, including without limitation posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age);
- Solicit personal information from children under 13 years of age;
- Create a false identity;
- Engage in fraudulent activities, including but not limited to “phishing”;
- Circumvent, remove or otherwise interfere with any security-related features of our Services, features that prevent copying or using any part of our Services or features that enforce limitations on the use of our Services or any User Content or Embr Labs’ content;
- Introduce viruses, worms, Trojan horses and/or harmful code to our Services; or
- Use any robot, spider, site search/retrieval application or other automated device, process, or means to access, retrieve, scrape or index any portion of our Services or any content available through our Site.
We reserve the right to consider other conduct to be prohibited; the restrictions above are intended to be illustrative.
9. Intellectual Property Rights
You agree and acknowledge that the structure, organization and code used in conjunction with our Services are proprietary to us. You shall not, and shall not permit any person or entity to: (i) use our Services on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance or make derivative works of our Services or any content available through the foregoing; or (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive, source code from our Services. You shall not sell, transfer, publish, disclose, display or otherwise make available our Services including any modifications, enhancements, derivatives and other software and materials provided hereunder by us or copies thereof to others in violation of these Terms.
Unless otherwise noted, all Embr Labs’ content contained on our Services is the property of us and/or our affiliates or licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws.
By using our Services, you hereby agree to indemnify and hold harmless us and our officers, directors, employees and agents from any claims, damages, losses, liabilities and all costs and expenses of defense (collectively, “Claims”), including without limitation attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with (i) your posting of any User Content, (ii) your use of our Services, and/or (iii) any user or other third party’s use of any User Content that you post to our Services. At our option, you agree to defend us from any such Claims.
11. Third Party Sites
Our Services may contain links to third party sites, which are independent of us and not under our control. These links are provided to you as a convenience, and we are not responsible for the content of any linked third party site. In addition, a link to any third party site does not imply that we endorse or accept any responsibility for the content or use of such site.
Under no circumstances will we be liable for any loss or damage caused by failure of our Services to operate as intended, your reliance on information from our Services, information provided by another user or by your use of our Services. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through our Services.
Our services and all content on or accessible from our services are provided “as is” without warranty of any kind, either express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose and non-infringement. specifically, but without limitation, we do not warrant that: (i) the information available through our services is free of errors; (ii) the functions or services provided by our services will be uninterrupted, secure or free of errors; (iii) defects will be corrected or (iv) that our servers or the server(s) that make our services available are free of viruses or other harmful components.
We and our affiliates and licensors cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
Without limitation of any of the foregoing, our Services include the Embrace thermal messaging feature ("Embrace"). Embrace enables a Services user ("Sender") to send thermal messages to another Services user ("Recipient"). A thermal message consists of a warming or cooling sensation felt by the Recipient through the Recipient's Embr Wave Product accompanied by up to 140 characters of plain text received through the Services from the Sender (collectively, a "Thermal Message"). A Thermal Message is a type of communication. Through Embrace, users are also able to add other users to friends' lists to facilitate communication through Embrace. You hereby acknowledge and agree that by using or activating Embrace, you may be added to other users' friends lists and that you may be a Recipient or a Sender of Thermal Messages through Embrace and you expressly consent to the receipt of Thermal Messages. You also acknowledge and agree that Embr Labs disclaims (and Embr Labs shall not have any) liability arising out of, or responsibility for: (i) any Thermal Message (including any content therein) sent through the Services; (ii) any interaction or relationship between you and any other user of our Services (including Embrace) that exists or may come to exist; and/or (iii) any disruption or distraction that may be caused to you by the receipt of any Thermal Message, which may be unexpected, including without limitation any personal injury or property damage caused thereby. You further acknowledge and agree that you are responsible for any Thermal Message (including any content therein) you send through Embrace.
13. Limitation of Liability
(a) Disclaimer. In no event shall we be liable to you, any other user of our services, third party providers or any other person or entity for any special, incidental, punitive, consequential, exemplary or other indirect damages (including without limitation damages for loss of profits, loss of data, loss of use or costs of obtaining substitute goods or services) arising out of the use, inability to use, unauthorized access to or use or misuse of our services, your contact information, content or any information contained thereon, whether based upon warranty, contract, tort (including negligence), or otherwise, even if we have been advised of the possibility of such damages or losses.
(b) Limitation. Our aggregate liability for all claims arising from these terms shall not exceed the greater of (i) $100.00 or (ii) the aggregate amount you have paid to us in fees for the services, if any, with respect to the then-prior twelve (12) month period.
(c) Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. accordingly, some of the above limitations may not apply to you but shall instead apply to the maximum extent permitted by law.
14. Release from Liability
You release, to the fullest extent permitted by law, Embr Labs, its directors, officers, members, employees, representatives, consultants, agents, suppliers and/or distributors from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with (i) disputes between or among users; (ii) third party sites and services, including without limitation content found on such sites and services; and (iii) claims relating to the unauthorized access to any data communications or User Content stored under or relating to your account, including unauthorized use or alteration of such communications or your User Content.
You hereby waive applicability of California Civil Code §1542, and any similar statute or principle of common law. California Civil Code §1542 says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
15. California Users
If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.
16. Non-US Users
17. Modifying and Terminating Service
We may terminate your access to our Services, in our sole discretion, for any reason and at any time, upon electronic notice to you at your registered email address or Social Networking service. You agree that we are not liable to you or any third party for any termination of your access to our Services. We may change and update our Services from time to time. We may add or remove features including without limitation making free services into paid services and vice versa. We will give you appropriate advance notice about any major changes, although you understand that we may stop, suspend, or change our Services at any time without prior notice. You may terminate these Terms at any time by ceasing to use our Services; however, if you maintain a Subscription Plan with us, then you may not terminate these Terms until you cancel your subscription in accordance with its terms or your subscription expires. We have no obligation to refund any prepaid Subscription Fees to you if you terminate before the end of your subscription term.
Accrued obligations and all provisions of these Terms that by their nature should survive will survive any termination of these Terms.
18. Unsolicited Ideas and Feedback
We welcome your feedback, ideas and suggestions (collectively, “Suggestions”). If you send us any Suggestions, you agree that: (i) your Suggestion(s) become our property and you are not owed any compensation in exchange; (ii) none of the Suggestion(s) contain confidential or proprietary information of any third party; (iii) we may use or redistribute Suggestion(s) for any purpose and in any way; (iv) there is no obligation for us to review your Suggestion(s); and (v) we have no obligation to keep any Suggestions confidential.
We may provide you notice to the email address you provide to Embr Labs during the registration process. Notice shall be deemed given 24 hours after email is sent. Alternatively, we may give you legal notice by mail to the address provided during the registration or purchase process and you may give us notice to the address set forth on our Site as our address. In such case, notice shall be deemed given three days after the date of mailing.
20. Governing Law; Dispute Resolution
These Terms, and any dispute between you and us, shall be governed by the laws of the Commonwealth of Massachusetts without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless you and we agree otherwise, in the event that Section 21 is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate (as defined below) or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state court located in Norfolk or Middlesex County, Massachusetts or a federal court located in Boston, Massachusetts, except that you or we are permitted (i) to bring small claims actions in state court in the county in which you reside if such court has a small claims procedure; (ii) to bring claims for injunctive relief in any court having jurisdiction over the parties; or (iii) to seek enforcement of a judgment in any court having jurisdiction over the parties. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding.
21. Agreement to Arbitrate; Waiver of Class Action
You may opt out of this agreement to arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt out notice must state that you do not agree to the Agreement To Arbitrate and must include your name, address, phone number, your Embr Labs account to which the opt out applies and a clear statement that you want to opt out of this agreement to arbitrate. You must sign the opt out notice for it to be effective. This procedure is the only way you can opt out of the Agreement To Arbitrate. You must use this address to opt out:
Embr Labs, Inc., ATTN: Arbitration Opt-out, 24 Roland St Suite 102, Boston MA 02129, USA.
Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to the Arbitration Procedures (other than a change to any notice address or Site link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate the Arbitration Procedures from these Terms, such termination shall not be effective until thirty (30) days after the version of these Terms not containing the Arbitration Procedures is posted to our Site, and shall not be effective as to any claim that was filed in a legal proceeding against us prior to the effective date of removal.
In accordance with Section 17, this agreement to arbitrate will survive the termination of your relationship with us.
You may not assign or transfer your rights or obligations under these Terms in whole or in part to any third party without our written consent. These Terms shall bind and inure to the benefit of the parties to these Terms and their respective successors, permitted transferees and permitted assigns. We and you are independent contractors and are not partners, joint venturers, agents, employees or representatives of the other party. These Terms contain the entire understanding of the parties with respect to the transactions and matters contemplated herein, supersede all previous communications, understandings and agreements (whether oral or written) other than any click-through or end user license agreement provided by us, and cannot be amended except by a writing signed by both parties or by our posting of an amended version of these Terms on our Site. The headings and captions used in these Terms are used for convenience only and are not to be considered in construing or interpreting these Terms. If any part of these Terms is held to be unlawful, void or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions. The failure of Embr Labs to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
If you are less than 18 years old, you must have an adult agree to these Terms on your behalf. You may not continue to access or use our Services without their agreement to these Terms on your behalf.
24. For Additional Information
If you have any questions about these Terms, please contact us at https://embrlabs.com/contact or at: Embr Labs, 24 Roland St Suite 102, Boston MA 02129 USA.
Copyright © 2020, Embr Labs, Inc., All Rights Reserved.
Updated: Oct. 6, 2020