PLEASE READ THE FOLLOWING TERMS OF USE (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES (AS DEFINED BELOW) OFFERED BY EMERJA CORPORATION. (“US”, “WE”, “OUR” or “EMERJA”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE EMERJA APPLICATION, THE EMERJA SOFTWARE EMBEDDED WITHIN THE ENERJI DEVICE, THE EMERJA SERVICE(S) USED IN CONJUNCTION WITH THE ENERJI DEVICE(S), AND THE SERVICES, FEATURES, CONTENT, WEBSITES (OR OTHER LINKED PAGES) OR APPLICATIONS OFFERED, FROM TIME TO TIME, BY EMERJA IN CONNECTION THEREWITH (COLLECTIVELY, THE “SERVICE(S)”). THESE TERMS COVER IMPORTANT INFORMATION ABOUT SERVICES PROVIDED TO YOU. THESE TERMS INCLUDE INFORMATION ABOUT FUTURE CHANGES TO THESE TERMS.
"YOU” AND “YOUR” REFER TO THE PERSON ACCESSING OR USING THE SERVICES, OR IF YOU CREATE AN ACCOUNT ON BEHALF OF AN EMPLOYER, COMPANY, ORGANIZATION, OR OTHER ENTITY, THEN (I) ALL REFERENCES TO “YOU” HEREIN INCLUDES YOU AND THAT ENTITY, (II) YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THE ENTITY WITH THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, AND (III) YOU AGREE TO THIS AGREEMENT ON THE ENTITY’S BEHALF. BY ACCESSING AND USING THE SERVICE IN ANY MANNER, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT AND THE EMERJA PRIVACY POLICY (WWW.EMERJA.IO/PRIVACY) (THE “PRIVACY POLICY”), WHICH IS INCORPORATED INTO THIS AGREEMENT BY THIS REFERENCE. IF YOU DO NOT ACCEPT THIS AGREEMENT AND THE PRIVACY POLICY, YOU ARE NOT AUTHORIZED TO USE THE SERVICES.
The Emerja platform includes a Enerji Device, plus access to the Emerja app, which provides personalized health measurement features. The Services allow you to track and share health-related information collected by the Enerji Device. The Services are provided to you by Emerja, in connection with our partners, service providers, or other affiliates. So that we may safely and responsibly manage our website and mobile applications for all of our users, your use of the Services is subject to this Agreement and the Privacy Policy. Emerja may modify this Agreement, the Privacy Policy, Content and/or the Services at any time and such modification will be effective upon posting such modifications to the Services. By continuing to access or use the Services after such modification, you are agreeing to be bound by the modified Agreement, Privacy Policy, Content and/or the Services, as applicable.
In order to use the Emerja Application and the Enerji Device, you must create an account (“Account”). You agree to provide true, accurate and complete information and keep your Account information current and updated. You shall not select or use as a username (i) a name of another person with the intent to impersonate that person or (ii) a name subject to any rights of a person other than yourself without appropriate authorization. You are solely responsible for any and all activities that occur under your Account or password, and for keeping your Account password confidential and secure. You may never use another person’s account or registration information for the Services without permission. You agree to notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account or password. You should never publish, distribute or post login information for your Account. Emerja will not be liable for any loss or damage arising from your failure to comply with this Section.
You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. The right to access the Services is revoked where this Agreement or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
Emerja software, text, graphics, images, video, audio, data, and other technology and material are made available to you through the Services (collectively referred to as the “Content”). The Services and Content may include proprietary and third-party advanced technologies, such as artificial intelligence, machine learning systems, and similar technology and features (together, “AI Technology. Subject to this Agreement, we grant to you a worldwide, non-exclusive, non-sublicensable and non-transferable limited license to (i) access and use (i.e., to download and display locally) the Content and the software and applications made available through the Services and (ii) use the Emerja software embedded within the Enerji Device (the “Enerji Device”), in each case solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. The Content may be owned by us or may be provided through an arrangement we have with others, including other users of the Services, or our licensors, partners, or affiliates. The Content is protected by intellectual property rights, including copyright under both United States and other laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. Other than your rights in any User Content (as defined below), you have no rights in or to the Content, and you may not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us or the owner of the Content. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. If you violate any part of this Agreement, your permission to access and/or use the Content and Services automatically terminates and you must immediately destroy any copies you have made of the Content.
Various company, product, and service names displayed on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”). Your use of the Services should not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Third-Party Trademark displayed on this Services. The Third-Party Trademarks may not be used to disparage any applicable third-party, any of their products or services, or in any way that, in our sole judgment, may damage any goodwill in the Third-Party Trademarks. The Services may include access to, links to, and content, recommendations, services, and data from third-parties (“External Services”). These External Services are provided solely as a convenience to you, are not an endorsement by us of the content, recommendations, and data on or made available through such External Services, and may be subject to separate legal terms and conditions between you and third parties. The content, recommendations, and data of such External Services are developed and provided by others. In addition, the Services permit access to content, recommendations, and data posted, stored, or displayed at the direction of users of the Services, for which we cannot accept any responsibility or liability. The Services are for personal use only and may not be used in connection with any commercial endeavors except those that are specifically approved by Emerja. The following activities are expressly prohibited: (i) any use of the Services, which in our sole judgment, degrades the reliability, speed, or operation of the Services or any underlying hardware or software thereof; and (ii) any use of the Services which is unlawful or in violation of this Agreement.
Unless otherwise prohibited by law, and without prejudice to Emerja’s other rights or remedies, Emerja shall have the right to immediately terminate (i) your Account if you breach any of the terms of this Agreement and (ii) any of the Services, in our sole discretion at any time. You must maintain an active Account to continue using the Services. If you do not maintain an active Account, this Agreement shall terminate.Emerja reserves the right at any time to modify or discontinue, temporarily or permanently, your Account and your access to the Services with or without notice. Upon cancellation or termination, all licenses granted to you hereunder shall terminate automatically, your right to use the Services shall cease and your User Content, as defined below, will no longer be available to you through the Services.
You may receive support and maintenance, if any, as determined in Emerja’s sole discretion.
The Services may include functionality to permit the submission of your Content, whether manually at the direction of users of the Services or automatically in accordance with your Account settings (“User Content”) and the hosting, sharing, and/or publishing of such User Content. You warrant and represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. User Content includes, without limitation, any user profile information you submit and make available, any information collected by the Enerji Device, including, without limitation, statistics and measurements, health information and other data generated through the use of the Services, and any information submitted by you relating to any activities recorded through the Services. You shall be solely responsible for User Content you submit or allow to be collected. In connection with any User Content you submit, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement; and (ii) you have the express specific, informed and unambiguous consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement. By submitting the User Content to us, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sublicensable and transferable license to edit, modify, truncate, aggregate, use, reproduce, distribute, prepare derivative works of, modify, display, perform, publish and otherwise commercially exploit all or any portion of the User Content in connection with our provision of the Services and our (and our successors’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats with our business partners and licensees for informational and analytical purposes. If your use of the Services is on behalf of or managed by a doctor, health provider, health supervisor or other entity you are affiliated with (“Managing Entity”), your User Content may also be shared with that entity or other organization as more fully described in our Privacy Policy. You consent to that sharing and acknowledge and agree that we are not responsible for any use or disclosure of your information by that Managing Entity. You also hereby grant each user of the Services a non-exclusive license to access your User Content through the Services, and to use, reproduce, distribute, prepare derivative works of, display, publish and perform such User Content as permitted through the functionality of the Services and under this Agreement. We may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required by law. In connection with User Content, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant us all of the license rights granted herein; (ii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; or (iii) impersonate another person. We expressly disclaim any and all liability in connection with any User Content. We do not permit copyright infringing activities and infringement of intellectual property rights in connection with the Services, and we will remove all Content and User Content if properly notified that such Content or User Content infringes on another’s intellectual property rights. We may remove any Content and User Content without prior notice. We may also terminate your access to the Services if you are determined to be an infringer. We also reserve the right to decide whether Content or User Content is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law. We may remove such User Content and/or terminate your access for uploading such material in violation of this Agreement at any time, without prior notice and at our sole discretion.
EMERJA PROVIDES THE SERVICES FOR YOU TO TRACK AND SHARE YOUR HEALTH-RELATED INFORMATION. THE SERVICES AND ANY RESULTS OR CONTENT DISPLAYED VIA THE SERVICES, WHETHER PROVIDED BY EMERJA OR THIRD PARTIES, DO NOT PROVIDE MEDICAL ADVICE AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR (I) ADVICE FROM YOUR DOCTOR OR OTHER MEDICAL PROFESSIONALS, OR ANY DIAGNOSIS OR TREATMENT OR (II) A VISIT, CALL OR CONSULTATION WITH YOUR DOCTOR OR OTHER MEDICAL PROFESSIONALS. THE SERVICES DO NOT AND ARE NOT INTENDED TO TREAT OR PREVENT ANY MEDICAL CONDITION. ALL CONTENT AVAILABLE THROUGH THE SERVICES IS FOR GENERAL INFORMATIONAL PURPOSES ONLY. USE OF THE SERVICES, OR COMMUNICATION WITH US VIA THE INTERNET, E-MAIL OR OTHER MEANS, DOES NOT CREATE ANY DOCTOR-PATIENT RELATIONSHIP. IF YOU HAVE ANY HEALTH-RELATED QUESTIONS, PLEASE CALL OR SEE YOUR DOCTOR OR OTHER HEALTHCARE PROVIDER. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON THE SERVICES, AND YOU SHOULD NOT USE THE SERVICES OR ANY CONTENT ON THE SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. YOU SHOULD ALWAYS CONSULT A QUALIFIED AND LICENSED MEDICAL PROFESSIONAL PRIOR TO BEGINNING OR MODIFYING ANY DIET, EXERCISE, CONSULTATIONS, OR TRAINING PROGRAM. YOU AGREE THAT YOUR EXERCISE ACTIVITIES CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF BODILY INJURY, DEATH OR PROPERTY DAMAGE, AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES.
The Content available through the Services may include recommendations, and other media to help you meet your health, fitness, and wellness goals. You acknowledge and agree that Emerja is not a healthcare provider, personal trainer or fitness instructor and that the Services (including any recommendations and any information available through the Services that may appear to be personalized) may not be appropriate for you. Emerja is not responsible for any results that may or may not be obtained from the use of the Service.
You agree to defend, indemnify, and hold us and our subsidiaries, affiliates, officers, agents, suppliers, employees, partners and licensors harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (i) your User Content, (ii) your breach of this Agreement, (iii) your uploading of, access to, connection to, or use or misuse of the Content or the Services, or (iv) your violation of law. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter which is subject to this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
a. You acknowledge and agree that, in addition to the limitations and restrictions set forth in this Agreement, there are numerous limitations that apply with respect to AI Technology and the Output it generates, including that (i) it may contain errors or misleading information and may not be accurate or reliable; (ii) AI Technology is based on predefined rules and algorithms that lack the ability to think creatively and come up with new ideas and can result in repetitive or formulaic content; (iii) AI Technology can struggle with complex tasks that require reasoning, judgment and decision-making; and (iv) AI Technology require large amounts of data to train and generate content, and the data used to train AI Technology may be of poor quality or biased, which will negatively impact the accuracy and quality of the generated Output.
b. You will use independent judgement and discretion before relying on or otherwise using Output. Output is for informational purposes only and is not a substitute for advice from a qualified professional.
c. Emerja bears no liability to you or anyone else arising from or relating to your use of AI Technology.
EXCEPT AS STATED IN SECTION 18, THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND. WE HEREBY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. WE, OUR AFFILIATES, OUR PARTNERS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT (INCLUDING THE USER CONTENT) OR SERVICES, INCLUDING BUT NOT LIMITED TO ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY. NEITHER WE NOR OUR AFFILIATES OR PARTNERS SHALL BE SUBJECT TO LIABILITY FOR TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO USERS OF THE SERVICES OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. FURTHER, WE MAKE NO WARRANTY THAT THE SERVICES WILL BE AVAILABLE ERROR FREE OR THAT THE SERVICES OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS. YOU AGREE THAT YOUR USE THE SERVICES AND THE CONTENT AT YOUR OWN RISK.
IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE ENERJI DEVICE, THE SERVICES AND/OR THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, IN EXCESS OF ONE HUNDRED DOLLARS, EVEN IF A WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF YOU ARE A USER FROM NEW JERSEY, SECTION 13 (DISCLAIMER OF WARRANTY) AND SECTION 14 (LIMITATION OF LIABILITY) ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PROVISION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PROVISION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PROVISIONS OF THE APPLICABLE SECTIONS.
The Services may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We reserve the right to remove any Content or User Content from the Services at any time, for any reason in our sole discretion, and without notice.
a. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. This Agreement will inure to the benefit of our successors and permitted assigns.
b. Governing Law; Venue. This Agreement are governed by the internal substantive laws of the State of Delaware, without respect to its conflict of law provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the State of Delaware.
c. Severability. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
d. Non-Waiver. Failure by us to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
e. Entire Agreement. Except as expressly agreed by us and you, this Agreement, the Privacy Policy and any other terms presented to you on or before you create your Account constitute the entire agreement between you and us with respect to the subject matter, and supersede all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter.
f. Headings. The section headings are provided merely for convenience and shall not be given any legal import.
g. Survival. All sections of this Agreement that, by their nature, should survive termination will survive termination, including, without limitation, the sections entitled User Content, Indemnity, Disclaimer of Warranty and Limitation of Liability, and General.
h. Third Party Distribution Channels. Emerja offers software applications that may be made available through the Apple App Store, the Google Play Store or other distribution channels (“Distribution Channels”). If you obtain such software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. This Agreement is between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
If you have any questions regarding the Services, please refer to Emerja’s website at emerja.io.