Last Updated: September 21, 2020

Emcardplus.com, including its subdomains, and the EmCard+ mobile, tablet, and other smart device applications, together with all of their features and content and related or commonly-owned or operated websites and applications (the “Platform”), is made available by EmCard+ LLC (“EmCard+”), and all content, information, services, text, photographs, video, audio, graphics and software ordered or provided on or through the Platform (“Content”) may be used solely under the following terms and conditions of use and all other terms and conditions or documents incorporated by reference herein, including, without limitation, EmCard+’s {Privacy Policy} (“Terms of Use”), which constitutes a legally binding agreement relating to the use of the Platform and the services provided therein, including the Content, between EmCard+ and each individual, corporation, limited liability company, partnership, association, or other entity or party (a “Person”) that visits or uses the Platform (collectively, “Users,” and each, a “User”, “you” or “your”).

YOU MUST BE AT LEAST SEVENTEEN (17) YEARS OLD TO USE THE PLATFORM OR, IF YOU ARE BETWEEN THE AGES OF THIRTEEN (13) AND SEVENTEEN (17), YOU MUST HAVE YOUR PARENT OR GUARDIAN’S PERMISSION TO USE THE PLATFORM AND YOU REPRESENT AND WARRANT YOU HAVE OBTAINED SUCH PERMISSION.

YOUR USE OF THE PLATFORM AND THE SERVICES OFFERED AND CONTENT CONTAINED THEREIN CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE.

By using the Platform, you are deemed to have accepted, executed, and be bound by these Terms of Use. EmCard+ may change or amend these Terms of Use at any time at its sole discretion. If EmCard+ makes a material change or amendment to these Terms of Use, it will notify Users thereof by posting such changes or amendments on the Platform, which changes or amendments will be effective automatically upon the posting thereof. You agree that all agreements, notices, disclosures, and other communications EmCard+ provides to you electronically satisfy any legal requirement that such communications be in writing. IF ANY OF THESE TERMS OF USE OR ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT USE OR CONTINUE TO USE THE PLATFORM OR THE CONTENT. YOUR CONTINUED USE OF THE PLATFORM OR THE CONTENT FOLLOWING THE POSTING OF ANY NOTICE OF ANY CHANGE TO THESE TERMS OF USE SHALL CONSTITUTE YOUR ACCEPTANCE AND AGREEMENT TO SUCH CHANGE.

Platform License

EmCard+ hereby grants you a limited, non-exclusive, revocable, royalty-free, non-transferable, non-assignable, non-sublicenseable right and license to access and make personal use of the Platform and Content solely permitted by the tools, products, services, functionalities, and/or features of the Platform, or as expressly permitted by EmCard+ in connection with your use of the Platform and as provided herein, subject in all respects to these Terms of Use, and not for redistribution of any kind (the “License”). This License does not include any resale or commercial use of (i) the Platform or Content, (ii) any Registration Data (defined below), (iii) any other content, materials, information, text, data, copyrights, designs, insignia, images, photos, articles, stories, artwork, videos, pictures, musical compositions, sound recordings, screenshots, chats, posts, graphics, identifying marks, Platform pages, software, and other original works of authorship, and/or intellectual property uploaded to, or incorporated into, the Platform or Content by EmCard+, or (iii) any trademarks, service marks, logos, designs, and insignia of EmCard+ or any third-party Person or products or services used or displayed on or through the Platform or in collateral materials thereto (collectively, “Trademarks,” and together with the items set forth in items (i) and (ii) above, the “Platform Content”), which Platform Content is and shall remain the sole and exclusive property of EmCard+ or the applicable third-party licensor/owner from whom EmCard+ obtained the right to use such Platform Content. You specifically acknowledge and agree that all Trademarks described in item (iii) are registered and unregistered trademarks or service marks of EmCard+ or the applicable third-party licensor/owner thereof, and nothing on the Platform or in these Terms of Use should be construed as granting, by implication, estoppel, or otherwise, any right or license to use the Trademarks or other intellectual property that any other User submits, uploads, posts, or transmits in or to the Platform (collectively, “User Content”), including, without limitation, in Cards (defined below), which User Content is and shall remain the sole and exclusive property of the applicable User (subject to the rights and licenses granted to EmCard+ herein). All goodwill generated from the use of the Trademarks inures to the benefit of the applicable owner thereof.

As between you and EmCard+, EmCard+ retains all right, title, and interest in and to the Platform, throughout the world, in perpetuity, including, without limitation, (i) all text, graphics, typefaces, formatting, graphs, designs, editorial content, HTML, look and feel, software, and data, (ii) all business processes, procedures, methods, and techniques used in the Platform, (iii) all other materials and content uploaded or incorporated into the Platform, including, without limitation, all Platform Content (but excluding User Content, which is owned by the applicable User, but which EmCard+ has a right and license to use pursuant to these Terms of Use), and (iv) all associated trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world, and the coordination, selection, arrangement and enhancement of such associated trade secret rights and other intellectual property and proprietary rights as a collective work under the U.S. Copyright Act of 1976, as amended (collectively, “Platform IP”), and nothing contained herein shall be construed as creating or granting you any right, title, or interest in and to such Platform IP other than the License granted herein. Platform IP is protected in all forms, media, and technologies now known or hereinafter developed by state, federal, and international laws of copyright, trademarks, patents, and other intellectual property and proprietary rights.

Violation of this License may result in infringement of intellectual property and contractual rights of EmCard+, other Users, or other Persons, which is prohibited by law and could result in substantial civil and criminal penalties.

Third-Party Content and Products

The Platform includes embedded third-party content or links (such as hyperlinks) to third-party websites, products, or services (including external websites that are framed by the Platform as well as any advertisements displayed in connection therewith) that are not owned or controlled by EmCard+ (collectively, “Third-Party Content”). Third-Party Content is provided as an information service, for reference and convenience only. EmCard+ does not control any such Third-Party Content and is not responsible for their (i) availability or accuracy or (ii) content, advertising, or products or services. Additionally, the Platform may enable you to purchase certain goods and services from third-party Persons (“Third-Party Products”), in which case Third-Party Terms, and not these Terms of Use, will apply to your use of that third-party merchant’s website and purchase of such Third-Party Products.

Inclusion of any Third-Party Content or Third-Party Products on the Platform does not constitute or indicate EmCard+’s endorsement thereof and EmCard+ shall not be liable or responsible for any Third-Party Content transmitted through the Platform or Third-Party Products displayed on the Platform. You shall be subject to any additional terms and conditions of use, guidelines, rules, privacy policies, and other practices applicable to any Third-Party Content that you access through the Platform (“Third-Party Terms”). All such Third-Party Terms are hereby incorporated by reference into these Terms of Use. You acknowledge and agree that EmCard+ will not and cannot censor or edit any Third-Party Content and that you shall assume the sole responsibility for and risk associated with your use and/or access of, or interaction with of Third-Party Content, including compliance with the terms and conditions of use, privacy policies, or practices associated therewith. Accordingly, EmCard+ encourages you to be aware when you leave the Platform and to read the terms and conditions of use and privacy policies associated with any Third-Party Content.

By using the Platform, you expressly release and hold EmCard+ harmless from any and all liability arising from your use of any Third-Party Content or purchase of any Third-Party Product, including any Losses (defined below) incurred as a result of any dealings between you and any third-party Persons, or as the result of the presence of such Third-Party Content or Third-Party Product on the Platform or the failure of such Third-Party Content or Third-Party Product to function as intended. It is your responsibility to evaluate the content and usefulness of the information obtained from third-party Persons.

Cards and User Content

The Platform facilitates Users to create profile cards about specific individual persons, including minor children with the consent of their respective parents or legal guardians (each, “Card Subject,” and, collectively, “Card Subjects”), where Users can submit, upload, post, or transmit certain of their own User Content, including information relating to an individual person’s name, photograph, emergency contact, sensitivities, preferences, and other information, to complete the profile (the “Cards”). To the extent any Card Subject is a minor child, you represent and warrant that you are the parent or legal guardian of such Card Subject and consent to the creation, sharing, transmission, and distribution of Cards containing User Content, which may contain personally identifiable information, about or relating to such Card Subject as facilitated through the Platform and its services.

You acknowledge and agree that the Platform enables Users to share, transmit, and distribute the Cards they have created through the Platform with other Users on the Platform and third-party Persons outside the Platform and to receive Cards from other Users and, that when sharing, transmitting, or distributing Cards to other Users or Persons, the Cards and the User Content contained within the Cards (including potential personally identifiable information) may be publicly available to such other Users or Persons, and that you and each applicable Card Subject will be publicly identified with the Cards that you create, share, transmit, and distribute through the Platform. EmCard+ will not be responsible for the action of any Users with respect to the Cards or any User Content contained within the Cards (including personally identifiable information of any Card Subject). Your User Content shall be accompanied by your real name and shall not be transmitted or shared anonymously. Users shall not misrepresent their identity or their affiliation with any Person, including the Card Subjects. Any User Content will be considered non-confidential and non-proprietary. You must not post any User Content on or through the Platform or transmit to EmCard+ any User Content that you consider to be confidential or proprietary.

User Content shall not contain protected health information. You are strictly prohibited from submitting, uploading, posting, or transmitting User Content on or through the Platform, including in Cards or relating to Card Subjects, that is considered protected health information or sensitive information under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”). Should EmCard+ discover that you have submitted, uploaded, posted, or transmitted either protected health information or sensitive information as protected by HIPAA and/or HITECH, including with respect to any Card Subject, EmCard+ will remove such information immediately and reserves the right to ban you from the Platform. None of the foregoing shall obligate EmCard+ to actively screen the information that you submit, upload, post, or transmit.

You agree and acknowledge that, to the extent that any court of competent jurisdiction deems any User Content that you submit, upload, post, or transmit to constitute protected health information or sensitive information of any Person, including any Card Subject, protected under HIPAA and/or HITECH or other applicable law, your use of the Platform and submitting, uploading, posting, or transmitting of such User Content constitutes your consent to EmCard+’s receipt, storage, sharing, transmission, and distribution as facilitated through the Platform and its services at your direction and you further represent and warrant that you are legally authorized to grant such consent on behalf of each Card Subject.

You hereby acknowledge and agree that EmCard+ does not actively monitor or police the Cards, the User Content contained therein, or specific interactions between Users (and has no obligation to do so) and you, on behalf of yourself and each Card Subject, hereby disclaim and hold EmCard+ harmless from and against any and all liability resulting from a User’s interaction with, or conduct towards, any other User or Person. Notwithstanding the foregoing, EmCard+ reserves the right to determine, at its sole discretion, what constitutes harassment or mischief, and where that has occurred, and may, also at its sole discretion, partially or completely deny, suspend, or terminate access to the Platform to any infringing party.

Unless otherwise provided in a separate written agreement between you and EmCard+, you retain all right, title, and interest in and to any User Content that you submit, upload, post, or transmit in or to the Platform; provided, that you hereby grant to EmCard+ a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferrable, assignable, sublicensable (through multiple tiers) right and license to exercise all copyright, privacy and publicity rights, and any other rights you have in such User Content in any media now known or not currently known in order to operate, perform, promote, advertise, market, and improve upon the Platform (the “User Content License”), which is without any payment, permission, or notification due from EmCard+ to you or any other Person. The User Content License includes the right to make, use, sell, reproduce, publish, modify, adapt, prepare derivative works from, combine with other works, translate, distribute, display, perform, and sublicense User Content in any form, medium, or technology now known or hereafter developed. By submitting, uploading, posting, or transmitting User Content in or to the Platform, you acknowledge and agree that EmCard+ may create on its own ideas that may be similar or identical to your User Content. You agree that you shall have no recourse against EmCard+ for any alleged or actual infringement or misappropriation of any proprietary or other right in or related to the User Content you provide to EmCard+. You acknowledge and agree that your submitting, uploading, posting, or transmitting of User Content in or to the Platform does not create any new or alter any existing relationship between you and EmCard+.

You certify and warrant that your User Content is your original work or that the owner of such works has expressly granted to EmCard+ a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license for said works with all of the rights granted by you to EmCard+, and do not violate and will not violate applicable law or the rights of any Person, including, without limitation, any right of publicity, right of privacy, copyright, patent, trademark, or other intellectual property right or any proprietary right.

You may remove your User Content at any time. If you remove any User Content, EmCard+ will cease using that particular User Content but (i) EmCard+ may not be able to control uses of your User Content by other Users and will not be liable for any use of such User Content by any third-party Person and (ii) EmCard+ may maintain a copy of removed User Content for archival and legal purposes.

You acknowledge and agree that EmCard+ may establish general practices and limits concerning use of the Platform or Content. You agree that EmCard+ has no responsibility or liability for the blocking, deletion, or failure to store any User Content maintained or transmitted by the Platform. You further acknowledge that EmCard+ reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice to you.

Digital Millennium Copyright Act

EmCard+ has registered an agent with the United States Copyright Office in accordance with the Digital Millennium Copyright Act (the “DMCA”) and avails itself of the protections under the DMCA. EmCard+ reserves the right to remove any Platform Content or User Content that allegedly infringes another party’s copyright. EmCard+ will terminate, in appropriate circumstances, Users who are repeat infringers of another party’s copyright. Notices to EmCard+ regarding any alleged copyright infringement should be directed to EmCard+ via email at {copyright@emcardplus.com}. This email address is only for reporting suspected copyright infringement. Contact information for other matters is provided elsewhere in these Terms of Use.

Notification of Alleged Copyright Infringement: If any Person believes in good faith that its intellectual property has been used on the Platform in a way that constitutes copyright infringement under applicable law, such Person or its agent (each, a “Copyright Claimant”) may provide EmCard+ with a written notice containing the following:

• The Copyright Claimant’s name, address, telephone number, and email address;
• A description of the copyrighted work that the Copyright Claimant claims has been infringed;
• A description of where on the Platform the material you claim is infringing may be found, sufficient for EmCard+ to locate the material (e.g., the URL);
• A statement that the Copyright Claimant has a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or applicable law;
• A statement by you under penalty of perjury under applicable law that the information in your notice is accurate and that the Copyright Claimant is the copyright owner or authorized to act on the copyright owner’s behalf; and
• The Copyright Claimant’s electronic or physical signature.

U.S. law imposes substantial penalties for falsely submitting a notice of copyright infringement.

Counternotice to Restore User Content Removed for Alleged Copyright Infringement: If a User believes that its User Content has been removed by mistake or misidentification, that User may provide EmCard+ with a written counter-notification containing the following information:

• The User’s name, address, telephone number, and email address;
• A description of the material that was removed from the Platform;
• A description of where on the Platform the User Content that was removed previously appeared (e.g., URL);
• A statement that the User has a good faith believe that the material was removed or disabled as a result of a mistake or misidentification;
• A statement by the User under penalty of perjury under applicable law that the information in your counter-notice is accurate;
• A statement that the User consents to the jurisdiction of the United States District Court for the judicial district in which your address is located, or if your address is outside of the United States, the United States District Court for the Eastern District of New York, and that you will accept service of process from the Person who filed the original DMCA notice or an agent of that Person; and
• The User’s electronic or physical signature.

Trademarks

You agree not to display or use in any manner any trademark, services mark, logo, trade dress, slogan, or other brand features, either registered under the laws of the Unite States or any other country or jurisdiction, or unregistered and existing at common law, belonging to EmCard+ unless you obtain EmCard+’s prior written consent.

EmCard+ reserves the right to remove any Platform Content or User Content that allegedly infringes another party’s trademark or service mark. EmCard+ will terminate, in appropriate circumstances, Users who are repeat infringers of another party’s trademark or service mark. Notices to EmCard+ regarding any alleged trademark infringement should be directed to EmCard+ via email at {support@emcardplus.com}. This email address is only for reporting suspected trademark infringement. Contact information for other matters is provided elsewhere in these Terms of Use.

Notification of Alleged Trademark Infringement: If any Person believes in good faith that its registered trademark or service mark has been used on the Platform in a way that constitutes trademark infringement under applicable law, such Person or its agent (each, a “Trademark Claimant”) may provide EmCard+ with a written notice containing the following:

• The Trademark Claimant’s name, address, telephone number, and email address;
• The registration number of the trademark or service mark, jurisdiction(s) of registration, and categories of goods and/or services covered by such registration;
• A description of where on the Platform the allegedly infringing Platform Content or User Content may be found, sufficient for EmCard+ to locate the material (e.g., the URL);
• A statement that the Trademark Claimant has a good faith belief that the use of the registered trademark or service mark is not authorized by the trademark owner, registrant, or licensee or their respective agents, or applicable law;
• A statement by the Trademark Claimant under penalty of perjury under applicable law that the information in your notice is accurate and that the Trademark Claimant is the trademark owner, registrant, or licensee or authorized to act on behalf of the trademark owner, registrant, or licensee; and
• The Trademark Claimant’s electronic or physical signature.

No Appeal to Restore User Content Removed for Alleged Trademark Infringement: If EmCard+ removes any User Content because of a trademark infringement report, the applicable User will receive a notification from EmCard+ that includes the name and email address of the rights holder who made the report and/or the details of the report. If such User believes the User Content should not have been removed, that User can follow up with the rights holder (i.e., the Trademark Claimant) directly to try to resolve the issue. EmCard+ does not provide a counter-notice or appeal mechanisms for claims of trademark infringement and disclaims any liability for claims any User might make regarding mistaken or misidentified trademark infringement notice and takedown requests.

Limitations on Platform Use

You are solely responsible for all of your interactions with the Platform and other Users on or through the Platform, including, without limitation, your creation, use, sharing, transmission, distribution, or receipt of Cards and the User Content contained therein. In your interactions with other Users, you agree to conduct yourself professionally, civilly, and respectfully at all times.

The Platform and Platform Content, and any User Content belonging to another User, may not be used, modified, reproduced, duplicated, copied, published, distributed, downloaded, sold, resold, transformed, redesigned, reconfigured, retransmitted, or otherwise exploited by you for any purpose except as facilitated by the Platform’s functionalities or without express prior written consent of EmCard+, or in the case of another User’s User Content, the applicable User.

With limiting the foregoing, while using the Platform, you may not:

• Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of EmCard+ or other Users or Card Subjects, or use information learned from the Platform or Content to otherwise defame, abuse, harass, stalk, threaten, intimidate, or mislead, or otherwise violate the legal rights of EmCard+ or any other User or Card Subject outside of the Platform;
• Submit, upload, post, or transmit User Content in or to the Platform, or otherwise utilize Cards to communicate or distribute information, that is defamatory, profane, infringing, obscene, unlawful, offensive, and/or harmful, including, but not limited to, content that advocates, endorses, condones, or promotes racism, bigotry, hatred, or physical harm of any kind against any individual or group of individuals, or that provides materials or access to materials that exploit people under the age of eighteen (18) in an abusive, violent, or sexual manner;
• Use the Platform or Content for any purpose in violation of applicable local, state, federal, or international law or regulation;
• Use or otherwise export or re-export the Platform or any portion thereof, or the Platform Content or User Content in violation of the export control laws and regulations of the United States;
• Upload User Content that contain software or other material that violate the intellectual property rights (or rights of privacy or publicity) of any Person or for which you have not obtained the necessary rights or permissions to use accordingly;
• Upload User Content or files that contain viruses, Trojan horses, corrupted files, malware, spyware, bugs, or any other similar software that may damage or infiltrate the operation of any other User’s computer;
• Conduct or forward surveys, contests, pyramid schemes, or chain letters;
• Impersonate another User or any other Person or knowingly allow any other Person to use your identification or Account to utilize the Platform;
• Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Platform;
• Restrict or inhibit any other User from using and enjoying the Platform and the services provided by EmCard+;
• Imply or state that any statements you make are endorsed by EmCard+ or any other User without the prior written consent of EmCard+ or such User;
• Use a robot, spider, manual, and/or automatic processes, or devices to data-mine, data-crawl, scrape, or index the Platform in any manner;
• Hack or interfere with the Platform or its servers or any connected networks;
• Adapt, alter, license, sublicense, or translate the Platform or Content for your own personal or commercial use;
• Decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Platform;
• Remove or alter, visually or otherwise, any copyrights, trademarks, or proprietary marks and rights owned by EmCard+ or any third-party licensor/owner thereof;
• Use the Platform to collect Registration Data of Users by electronic or other means;
• Use the Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining EmCard+’s trade secret information for public disclosure or other purposes;
• Use, transfer, distribute, or dispose of Platform, Platform Content, or User Content in any manner that could compete with the business of EmCard+;
• Advertise or offer to sell any goods or services for any commercial purpose through the Platform, or otherwise post commercial advertisements, affiliate links, and other forms of solicitation, which may be removed from the Platform without notice to you at any time, unless otherwise agreed by you and EmCard+ in a separate written agreement;
• Circumvent, remove, alter, deactivate, degrade, or thwart any content protections in the Platform; or
• Cause or induce any Person to engage in the restricted activities above.

The License granted to you terminates automatically upon any unauthorized use of the Platform or the Content and EmCard+ will take appropriate investigative and legal action for any illegal or unauthorized use of the Platform or Content.

Unlawful Activity; Termination of Platform Access

EmCard+ reserves the right to investigate complaints or reported violations of the Terms of Use and to take any action EmCard+ deems appropriate, including, without limitation, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third Persons and disclosing any information necessary or appropriate to such Persons relating to Users’ email addresses, usage history, User Content, IP addresses, and traffic information

EmCard+ further reserves the right, in its sole discretion and without notice or liability to you, to suspend or terminate your use of, or access to, the Platform (either in whole or in part) at any time for any reason with any conditions, including, without limitation, if EmCard+ believes in good faith that you have violated or acted inconsistently with these Terms of Use or any applicable law or that you have engaged in conduct that EmCard+ determines, in its sole discretion, to be inappropriate or unacceptable. EmCard+ may also terminate your access to the Platform if you assert any legal claim or bring any legal action against EmCard+ or assert any legal claim or bring any legal action that involves the Platform. EmCard+ also reserves the right, at EmCard+’s sole discretion, to seek and obtain any other remedies available to EmCard+ pursuant to any applicable laws and regulations or at equity as a result of your breach of these Terms of Use or any other act or omission by you that gives rise to a legal claim or legal action by EmCard+. In the event your right to use the Platform terminated, limited, or suspended, these Terms of Use will remain in effect and enforceable against you.

You may terminate these Terms of Use at any time by ceasing all use of the Platform and Content; provided, however, that all sections of these Terms of Use which by their nature should survive the expiration or termination shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of these Terms of Use.

User Accounts

In order to utilize certain full functionalities of the Platform, each User may need to register and create an Account (each, an “Account”). You agree to create only one (1) unique Account and that you shall be the sole authorized user of your Account. As part of the registration process, Users will be asked to submit certain information such as their name, email address, phone number, profile name, etc., and to create an Account login password (collectively, “Registration Data”). You agree that all Registration Data you provide to EmCard+ will be and remain at all times true, accurate, current, and complete. EmCard+ may from time to time modify or add to the Registration Data information fields required to create an Account, and you agree to promptly complete any such additional or modified information fields when and as requested by EmCard+.

EmCard+ will have the right to use your Registration Data in connection with servicing and operating the Platform. You agree to (i) restrict access by any other Person to your Account password or other login information, (ii) not knowingly use the name or email of any other Person without authorization to create an Account, (iii) not use an email or profile name or other Registration Data that is profane, offensive, or otherwise inappropriate, (iv) not allow any third-party Person to use your Account login information, Registration Data, or Account, and (v) notify EmCard+ of any breach of security by promptly sending EmCard+ an email to {support@emcardplus.com}. You agree that you will be liable for all activities that occur under your Account, even if such activities were not committed by you. EmCard+ is not responsible for any Losses as a result of someone else using your Account, Registration Data, or password, with or without your knowledge.

If you are 13 years old or older but younger than the age of majority in your jurisdiction, you may register and create an Account on your own as long as you obtain your parent or legal guardian’s consent prior to registering, and by continuing to use EmCard+, you represent and warrant that you have obtained that permission.

Advertisers on Platform

The Platform may contain advertising and sponsorship. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the Platform is accurate and complies with applicable laws. EmCard+ will not be responsible for the illegality of or any error or inaccuracy in advertisers’ or sponsors’ materials or for the acts or omissions of advertisers and sponsors.

Special Promotions

EmCard+ may from time to time provide certain promotional opportunities, sweepstakes, and contests to Users. All such promotions will be run at the sole discretion of EmCard+, and can be activated, modified, or removed at any time by EmCard+ without advance notification and the liability of any of EmCard+’s partners pursuant to such promotional opportunities, sweepstakes, and contests shall be limited pursuant to these Terms of Use.

Third-Party Communications

By providing EmCard+ with your email address and using the Platform, you hereby affirmatively consent to the use of your email address for notifications from EmCard+ regarding important service announcements and other administrative communications related to your use of the Platform, as well as certain marketing and other advertising communications from EmCard+ and from EmCard+’s third-party advertising partners, as more fully set forth in EmCard+’s {Privacy Policy}. You will be able to opt out of receipt of certain notifications by following the instructions described in EmCard+’s {Privacy Policy}; however, if you do not wish to receive certain service and other administrative notifications related to the Platform, your only way to opt out of such messages is to stop using the Platform.

EmCard+ disclaims all liability for any communications directed to you from any third-party Person, directly or indirectly, in connection with the Platform (“Third-Party Communications”) that you may receive and any actions you may take or refrain from taking as a result of any Third-Party Communications. You are solely responsible for assessing and verifying the identity and trustworthiness of the source and content of any Third-Party Communications. EmCard+ assumes no responsibility for verifying, and makes no representations or warranties regarding, the identity or trustworthiness of the source or content of any Third-Party Communications.

By using the Platform, you expressly release and hold EmCard+ harmless from any and all liability arising from your use of any Third-Party Communications, including any Losses incurred as a result of any dealings between you and any third-party Persons. It is your responsibility to evaluate the content and usefulness of the information obtained from third-party Persons.

Representations and Warranties

The Platform is available only to Persons who, if individuals, are eighteen (18) years or older (or any greater age required to be deemed to have reached the age of majority under the applicable law of the state or jurisdiction of such person’s primary residence), or who are between the ages of thirteen (13) and seventeen (17) who have their parent or guardian’s permission to use the Platform. BY ACCESSING AND USING THE PLATFORM, EACH PERSON WHO IS AN INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY ARE AT LEAST EIGHTEEN (18) YEARS OLD (OR ANY GREATER AGE REQUIRED TO BE DEEMED TO HAVE REACHED THE AGE OF MAJORITY UNDER THE APPLICABLE LAW OF THE STATE OR JURISDICTION OF THEIR PRIMARY RESIDENCE), OR IF THEY ARE BETWEEN THE AGES OF THIRTEEN (13) AND SEVENTEEN (17), HAS THEIR PARENT OR GUARDIAN’S PERMISSION TO USE THE PLATFORM AND ARE FULLY ABLE AND HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO, AND TO BE BOUND BY, THESE TERMS OF USE, AND WILL SO ABIDE.

You represent and warrant that (i) all Registration Data and User Data and other information that you submit, upload, post, or transmit in or to the Platform is true, accurate, current, and complete and (ii) that such Registration Data and User Data and other information, when used for the purposes in which it is submitted, uploaded, posted, or transmitted in or to the Platform, does not infringe upon the rights of any Person, including, without limitation, intellectual property rights, propriety rights, and rights of publicity/privacy. You acknowledge and agree that you shall be solely responsible for all Registration Data and User Data and other information that you provide to EmCard+ and that EmCard+ reserves the right to reject or remove all or a portion of any such Registration Data or User Data or other information from the Platform that EmCard+ determines, in its sole discretion, does not comply with these Terms of Use, or for any other reason, without notice or liability to you.

Disclaimers

YOUR USE OF THE PLATFORM IS ENTIRELY AT YOUR OWN RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EMCARD+ MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE PLATFORM OR THIRD-PARTY CONTENT LINKED TO THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF EMCARD+’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN. EMCARD+ DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY PERSON THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND EMCARD+ WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

WITHOUT LIMITING THE FOREGOING, NONE OF THE EMCARD+ PARTIES (DEFINED BELOW) WARRANT THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR THAT THE PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS, OR CONTENT OF ANY CONTENT, INFORMATION, OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE PLATFORM. NONE OF EMCARD+ PARTIES SHALL BE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. NONE OF THE EMCARD+ PARTIES WARRANT THAT THE PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. THE EMCARD+ PARTIES CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED, OR USED BY OTHERS.

TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT EMCARD+ IS ONLY WILLING TO PROVIDE THE PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF EMCARD+’S LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, ON BEHALF OF YOURSELF AND EACH CARD SUBJECT, YOU AGREE NOT TO HOLD EMCARD+ OR ANY OF ITS PAST, PRESENT, OR FUTURE PARENT, SUBSIDIARY, OR AFFILIATE COMPANIES OR ANY OF THEIR RESPECTIVE PAST, PRESENT, OR FUTURE OFFICERS, DIRECTORS, STOCKHOLDERS, MANAGERS, MEMBERS, PARTNERS, EMPLOYEES, CONTRACTORS, AFFILIATES, CONTENT PARTNERS, VENDORS, LICENSORS, DISTRIBUTORS, ADVERTISERS, OTHER CONTRACTING PERSONS, AGENTS REPRESENTATIVES, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “EMCARD+ PARTIES”) LIABLE FOR ANY SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PERSON’S LOSSES (DEFINED BELOW), INCLUDING AS A RESULT OF YOUR USE OF OR INABILITY TO USE THE PLATFORM, INCLUDING, WITHOUT LIMITATION ANY CLAIMS ARISING IN CONNECTION WITH THE CONDUCT, ACT, OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY EMCARD+ OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.

UNDER NO CIRCUMSTANCES WILL ANY OF THE EMCARD+ PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT ANY OF THE EMCARD+ PARTIES IS LIABLE FOR LOSSES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).

YOU AND EMCARD+ AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR EMCARD+ WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR EMCARD+ ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND EMCARD+ FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, EMCARD+, AND ALL OTHER PARTIES TO ANY SUCH PROCEEDING.

Indemnification

You hereby agree to indemnify, defend and hold harmless, the EmCard+ Parties, from and against any and all losses, liabilities, damages, settlements, costs, penalties, or expenses (including attorneys’ fees and costs) (collectively, “Losses”) arising out of or in connection with any claim brought by a third-party Person based on: (i) your use of, or inability to use, the Platform; (ii) any breach of any representation, warranty, covenant, or obligation of yours under these Terms of Use; (iii) any Registration Data or User Content transmitted by you to EmCard+ or any other Person; (iv) your violation of any applicable local, state, federal, or international law or regulation; or (v) your violation of any Person’s rights, including, but not limited to, any intellectual property rights or rights of privacy and publicity. The applicable EmCard+ Parties shall promptly notify you in writing of any such indemnified claim (provided, however, any delay in such notice shall not relieve you of your obligations hereunder except to the extent such delay prejudices the defense of such claim) and give you the opportunity to defend or settle such claim at your sole cost and expense; provided, however, you shall not settle any such claim without the applicable EmCard+ Parties’ prior written consent, not to be unreasonably withheld, delayed, or conditioned; provided, further, the EmCard+ Parties reserve the right to assume the exclusive defense and control of any such claim. In all cases, the EmCard+ Parties will cooperate with you, at your sole cost and expense, in defending or settling such claim.

Platform Access Requirements; Errors and Corrections; Updates and Maintenance

Access to and use of the Platform requires a compatible mobile device or web browser and Internet connection. Although EmCard+ endeavors to ensure that the Platform is compatible across various devices, EmCard+ cannot guarantee that the Platform will work with all devices and hardware types.

It is your responsibility to ensure that your computer or mobile device complies with the requirements for accessibility. Your use of the Platform may vary in functionality, availability, and quality depending on the type of the device and the operating system that you use and EmCard+ accepts no responsibility for any lack of functionality that is due to your equipment (including your device, Internet connection, operating system or settings and software).

It is your responsibility to pay for all costs and expenses that you may incur while using the Platform (including, but not limited to, all telephone call or line charges or Internet data service access charges).

EmCard+ does not represent or warrant that the Platform, Platform Content, or User Content will be error-free, free of viruses or other harmful components, or that defects will be corrected or that the Platform, Platform Content, or User Content will always be accessible. EmCard+ does not warrant or represent that the Content available on or through the Platform will be correct, accurate, timely, or otherwise reliable. Your access to the Platform may be interfered with by numerous factors outside of EmCard+’s control including, without limitation, telecommunications and/or wireless network service disruptions, computer or mobile device viruses and bugs, tampering, unauthorized intervention, fraud, technical failures, and server, equipment, or software defects. EmCard+ is not responsible, and will have no liability, for any failures of the Internet or any data or telecommunications equipment, system, or network used in connection with the Platform. Additionally, perfect security does not exist on the Internet; EmCard+ cannot and does not guarantee that any Registration Data, User Content, or other personally identifiable information submitted, uploaded, posted, or transmitted in or to the Platform will not become public under any circumstances.

EmCard+ may in the future update the Platform, or any portion thereof, to change the Platform Content and/or features thereof at any time (an “Update”). EmCard+ shall not be liable to any User in any way as a result of any temporary suspension of the Platform or Content, or portions thereof, arising from or in connection with an Update. Furthermore, EmCard+ is under no obligation to undergo an Update to the extent any Platform Content, User Content, and/or other features or material contained therein or related thereto is out of date. The terms of the License granted to you herein shall apply in full to any Update.

Privacy

Your privacy is very important to EmCard+. To understand EmCard+’s practices, please review EmCard+’s {Privacy Policy}, which is incorporated by reference into these Terms of Use and also governs your use of the Platform. Likewise, you represent and warrant that you will respect the privacy, property, and data protection rights of Users.

Governing Law and Jurisdiction; Disputes

The Terms of Use are governed by and construed in accordance with the internal law of the State of New York without reference to its principles of conflicts of laws and any dispute or legal claim arising out of or relating to these Terms of Use or your use of the Platform shall be adjudicated exclusively in either the state courts situated in Nassau County, New York or the United States District Court for the Eastern District of New York, and you hereby irrevocably waive all jurisdictional, venue, or inconvenient forum objections to such courts.

You agree that, regardless of any applicable law to the contrary, any legal claim or cause of action arising out of or relating to these Terms of Use or your use of the Platform must be filed with a court of competent jurisdiction within one (1) year after such legal claim or cause of action arose or else will be forever barred.

Assignments

EmCard+ may assign, subcontract, or otherwise transfer any or all of its rights and/or obligations under these Terms of Use to any Person. You may not assign or transfer your rights or obligations under these Terms of Use to any Person.

Waiver and Severability of Terms; Entire Agreement

Failure by EmCard+ to enforce any provision(s) of these Terms of Use will not be construed as a waiver of any provision or right. If any provision of these Terms of Use is deemed unlawful, void, or unenforceable by a court of law exercising proper jurisdiction, that provision shall be deemed severed from the remaining provisions and shall not affect their validity and enforceability. These Terms of Use incorporate by reference any notices contained on the Platform and the {Privacy Policy} and constitute the entire agreement with respect to access to and use of the Platform, Platform Content, Cards, and User Content.

Contact

Questions or comments about the Platform or EmCard+’s services or these Terms of Use should be sent by email to {support@emcardplus.com}.

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