Last Updated August 29, 2017
ACCEPTANCE OF TERMS; MODIFICATIONS
Please read these Terms carefully. By using our Platform as either a User (as defined below) or an emmy (as defined below), you agree to be legally bound by and to comply with these Terms and our Privacy Statement, which are a part of these Terms. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity. If any supplemental terms and conditions appear on our Platform in connection with any particular features, they are incorporated into these Terms. If you do not agree to these Terms, you are not authorized to use our Platform.
We may change these Terms by posting an updated version on our Site. The updated Terms will be effective immediately upon posting, and apply to all access and use of our Site thereafter. If we decide that it is appropriate, we may provide additional notice of more significant changes. By continuing to use our Platform after we post updated Terms, you agree to be bound by the updated Terms. Please check these Terms regularly so you are aware of any changes.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
EMMY CO. PROVIDES A PLATFORM FOR CONNECTING USERS WITH EMMYS
EMMY CO. provides a technology platform that enables individuals (“Users”) to connect with independent third party service providers (“emmys”) who provide and perform on-demand, trusted, professional, door-to-door trip accompaniment, on an hourly, incidental, ongoing, recurring, or episodic basis (“Trip Accompaniment”). Through our Platform, Users may connect directly with emmys to request and schedule Trip Accompaniments.
EMMY CO. does not provide transportation services and is not a transportation carrier. Generally, a User will designate, and be responsible for payment of, the mode of transportation for each trip (e.g., walking, public transportation, taxi, black car service, Uber, Lyft, short-term car rental, etc.) although on occasion, an emmy may agree to drive his or her own car. On such occasions, unless otherwise agreed between the User and the emmy, if the emmy drives his or her own car on the Trip Accompaniment, in addition to other charges for which the User is responsible, the User shall reimburse the emmy for fuel in accordance with the standard IRS published millage rate, at the conclusion of a trip.
emmys are independent contractors and not employees of EMMY CO. By using our Platform, you acknowledge and agree that EMMY CO. (1) does not supervise, direct, control, or monitor the emmys or their performance of Trip Accompaniments, (2) EMMY CO. is not responsible for and has no control over the emmy’s acts or omissions under any circumstances or for any reason whatsoever, and (3) is not responsible for and has no control over the quality, timing, legality or any other aspect whatsoever of Trip Accompaniment provided by emmys. EMMY CO. makes no representations about the suitability, reliability, timeliness, or accuracy of the Trip Accompaniments.
REGISTERING AND CREATING AN ACCOUNT
You must register and maintain an active account to provide or receive Trip Accompaniment. Provided a User’s account is in good standing, the User may order Trip Accompaniment for his or herself, or for individuals who have authorized the User to do so in writing, or for whom the User is the parent or legal guardian or otherwise legally responsible (each such person is referred to as a “User” for purposes of these Terms). Users and emmys must be at least 18 years of age (or other age of legal majority in your jurisdiction) to register, create an account, and use our Platform. You must submit certain personal information (such as your name, address, mobile phone number, and a valid payment method) to create an account. You agree to maintain accurate, complete, and up-to-date information in your account. Your failure to do so, including having an invalid or expired payment method on file, may result in your inability to access and use the Platform.
You are responsible for: (1) maintaining the confidentiality of your user name, password and account number for accessing our Platform; and (2) all activities that occur under your account. EMMY CO. has no control over, and disclaims any liability relating to, the use of any account. Please contact EMMY CO. immediately if you become aware of or suspect any unauthorized use of your account or other breach of security. If EMMY CO. believes in good faith your account has been used in an unauthorized manner, it may suspend access to your account with or without notice to you.
You may not assign or otherwise transfer your account to any other person or entity. You agree: (1) to use our Platform only for lawful purposes; (2) to comply with all applicable laws, rules and regulations, and these Terms, when using our Platform; (3) not to use our Platform in a manner that violates the rights of EMMY CO., our affiliates, or any third parties, or to cause nuisance, annoyance, inconvenience, personal injury, or property damage to any User, emmy or other party. In certain instances you may be required to provide proof of identity in connection with Trip Accompaniment.
By providing your mobile phone number and using our Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and text messages (e.g., SMS). We will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving text messages from us by modifying your account settings, or by emailing us. Telephone or text (SMS) message capabilities are required to facilitate communication in connection with Trip Accompaniments. You acknowledge that opting out of receiving text (SMS) messages may impact the timeliness of your receipt of notifications in connection with Trip Accompaniments.
SCREENING OF EMMYS AND USERS; RIGHT TO REFUSE SERVICE
EMMY CO. reserves the right, but shall not be obligated, to screen emmys. By using the Platform as an emmy, you expressly permit EMMY CO. (directly or through third-party services, as appropriate) to verify your identity, and to conduct background checks from time to time, in compliance with all applicable federal, state, and local laws, rules, and regulations, including, without limitation, the Fair Credit Reporting Act.
Although EMMY CO. reserves the right to, and may, perform background checks on emmys, EMMY CO. cannot guarantee that each emmy is who he or she claims to be. Accordingly, EMMY CO. does not assume any responsibility for the accuracy or reliability concerning the identity or information about emmys provided through our Platform. Likewise, EMMY CO. makes no representations or warranties as to the accuracy concerning the identity or information about its Users. Both Users and emmys shall use the Platform at their sole risks.
Both Users seeking Trip Accompaniment, and emmys offering such service, are expected to take reasonable precautions, and to exercise common sense, to protect their personal safety and property, just as you would when interacting with other persons whom you do not know. Users acknowledge and agree that their use of the Platform and Trip Accompaniment shall not be for the purpose of obtaining any health or medical treatment, services, or advice. EMMY CO. and Trip Accompaniments are not intended to be a substitute for professional medical services or treatment, medical advice or opinions, ambulance or rescue transportation, or other healthcare services. emmys are not professional caregivers. emmys are not trained to, and shall not, administer medical treatments, advice, or medications, transport or operate medical equipment, or otherwise provide any medical or healthcare assistance. If a User is suffering from a medical or health issue or has a medical emergency, he or she should seek professional medical assistance. Trip Accompaniment may be used in addition to, but not in substitution of, professional caregiving.
In connection with the above, emmys have the right to refuse to provide Trip Accompaniment services to any User who the emmy believes, in its reasonable, good faith discretion, is suffering from a medical or health condition that may threaten the safety and well-being of the emmy and/or the User. This may include, by way of example only, a User suffering from a medical emergency, a User in labor, a User who is intoxicated, or a User who is not ambulatory. Notwithstanding the foregoing, emmys shall not refuse services to any User on the basis of race, color, national origin, age, sex, gender identity, religion, marital status, familial or parental status, sexual orientation, political beliefs, disability, or any other protected class. Users may submit any disputes regarding an emmy’s cancellation of a Trip Accompaniment to EMMY CO., and such disputes shall be handled on a case-by-case basis in accordance with these Terms.
NEITHER EMMY CO. NOR ITS AFFILIATES OR LICENSORS (OR THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, REPRESENTATIVES, AND AGENTS) ARE RESPONSIBLE FOR THE CONDUCT (WHETHER ONLINE OR OFFLINE) OF ANY EMMY OR USER. EMMY CO. SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES, INCLUDING, WITHOUT LIMITATION, DEATH OR INJURY TO PERSON OR PROPERTY, ARISING OUT OF YOUR USE OF OR RELIANCE ON THE PLATFORM OR TRIP ACCOMPANIMENT.
Please refer to the Frequently Asked Questions (FAQ) section of the Platform for additional information.
PERMITTED USE; OWNERSHIP OF CONTENT
Except with respect to User Content (defined below), EMMY CO. (or, as applicable, its licensors) owns all rights, including copyrights and other proprietary rights, to the content, features and functionality of our Platform (including software, text, displays, images, video and audio, and selection and arrangement thereof) (“Platform Content”), which is protected by United States and international copyright, trademark and other intellectual property or proprietary rights laws. You may view, print or download Platform Content solely for your personal, non-commercial use, but you may not sell, transfer, assign, license, sublicense, or modify the Platform Content, or reproduce, distribute, create derivative works of, publicly display, publicly perform, or otherwise use any of the Platform Content, except as expressly permitted. Without limiting the generality of the foregoing, you may not use any Platform Content in a manner that attributes a false or misleading statement to EMMY CO.. Further, you must not: (A) delete or alter any copyright, trademark or other proprietary rights notices from our Platform Content; or (B) engage in data mining, harvesting, or any other systematic collection or extraction of information from our Platform.
EMMY CO.’s name and trademarks, service marks, logos, and other indicia of source (collectively, “EMMY CO. Marks”) are owned by EMMY CO. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with the EMMY CO. Marks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the EMMY CO. Marks inures to our benefit. Without limiting the generality of any of the foregoing, you may not use the EMMY CO. Marks in connection with any product or service in any manner that is likely to cause confusion about the source, affiliation, or sponsorship of the product or service or that misrepresents EMMY CO.
“User Content” means any and all information and content that a user (whether a User or an emmy) submits to, or uses with, the Platform (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You expressly acknowledge and agree that once you submit your User Content for inclusion into the Platform, there is no confidentiality or privacy with respect to such User Content, including, without limitation, any personally identifying information that you may make available. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined below). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
License. You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free, fully paid, freely sublicensable, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, modify, compile, copy, transmit, translate, distribute, and otherwise use and exploit your User Content and all intellectual property rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised, and to grant sublicenses of the foregoing rights, for the purposes of including your User Content in the Platform. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
Each submission of User Content constitutes a representation and warranty to EMMY CO. that such User Content is your original creation (or that you otherwise have the right to provide the User Content), that you have the rights necessary to grant the license to the User Content under the prior paragraph, and that it and its use by EMMY CO. and its affiliates as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person.
You agree not to use the Platform to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party; or (v) that discloses any sensitive information about another person, including that person’s email address, postal address, phone number, credit card information, or any similar information.
In addition, you agree not to: (i) upload, transmit, or distribute to or through the Platform any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Platform unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Platform to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Platform, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Platform (or to other computer systems or networks connected to or used together with the Platform), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Platform; (vi) decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Platform, or (vii) use software or automated agents or scripts to produce multiple accounts on the Platform, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Platform (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with these Terms, and/or reporting you to law enforcement authorities.
Feedback. If you provide Company with any feedback or suggestions regarding the Platform (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related ideas, concepts, know-how, techniques, or other information contained in your Feedback, in any manner it deems appropriate, including, but not limited to, the development, production, and marketing of products and services, without compensation or attribution to you. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
Each Platform user (whether a User or an emmy) is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Platform users are solely between you and such individuals. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Platform user, we are under no obligation to become involved.
PAYMENT FOR EMMYS AND TRIP ACCOMPANIMENTS
Use of Trip Accompaniment will result in charges to the User (“Charges”). Charges are set forth in EMMY CO.’s FAQ and on the Platform. All Charges are due immediately. EMMY CO. will facilitate your payment of Charges through the preferred payment method designated in your account. EMMY CO. will act as a limited payment collection agent on behalf of emmys to facilitate payment for Trip Accompaniment. Payment of these Charges will be considered payment to emmys and inclusive of applicable taxes where required by law. All payments for Charges are non-refundable, unless otherwise determined by EMMY CO. in its sole discretion.
If your designated primary payment method is determined to be expired, invalid or otherwise not able to be processed, you agree that EMMY CO. may, as the emmys’ limited payment collection agent, use a secondary payment method designated in your account, if available. EMMY CO. reserves the right to establish and revise Charges for any or all Trip Accompaniments obtained through the use of our Platform at any time in our sole discretion.
Payment of Charges is intended to fully compensate emmys for Trip Accompaniment. EMMY CO. does not designate any portion of a payment as a tip or gratuity to emmys. Any statement by EMMY CO. that tipping is “voluntary,” “not required,” and/or “included” in the payment is not intended to suggest that EMMY CO. provides any additional amounts to the emmys. A User may voluntarily provide a tip or gratuity to an emmy in addition to the Charge, but is under no obligation to do so.
A User may elect to cancel a request for Trip Accompaniment at any time before the designated emmy arrives, provided that EMMY CO. reserves the right to impose a cancellation fee (which shall be deemed a Charge hereunder). Further, if a User fails to show up to a scheduled trip within fifteen (15) minutes of the scheduled time, with or without notice to EMMY CO., such failure may be deemed a “no show,” and EMMY CO. reserves the right to impose a “no show” Charge, at its sole discretion. If an EMMY fails to show up to a scheduled trip, with or without notice to EMMY CO., EMMY CO. reserves the right to place a hold or suspension on the emmy’s account, at EMMY CO.’s discretion. If either a User or an EMMY repeatedly cancels Trip Accompaniments or are “no shows”, EMMY CO. may suspend or terminate such individual’s account at its sole discretion.
EMMY CO. may from time to time, in its sole discretion, issue referral credits, vouchers and promotional codes that may be redeemed for credit, or other features or benefits related to Trip Accompaniment, subject to any additional terms that we establish (collectively, “Vouchers”). You agree to comply with all terms and conditions governing Vouchers (e.g., a User may not apply a Voucher offered to first-time users to create a new account if an account as already been established). Vouchers: (1) must be used only for the intended audience and purpose, in a lawful manner, and subject to the applicable terms for the particular Voucher, including expiration dates; (2) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by EMMY CO.; (3) may be invalidated by EMMY CO. at any time for any reason without liability to EMMY CO.; and (4) are not valid for cash. EMMY CO. reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Vouchers if EMMY CO. determines the use or redemption of the Voucher was in error, fraudulent, illegal, or in violation of the applicable Voucher terms or these Terms.
THIRD-PARTY SERVICE PROVIDERS
We engage third-party service providers to offer additional online services, such as website hosting, email, and payment processing. As an example, payment processing services for emmys are provided by Stripe and subject to the Stripe Connected Account Agreement which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these Terms, all emmys agree to be bound by the Stripe Services Agreement (as Stripe may modify it from time to time). As a condition of EMMY CO. enabling payment processing services through Stripe, you agree to provide EMMY CO. with accurate and complete information requested and you authorize EMMY CO. to share it and related transaction information as necessary. EMMY CO.’s collection, storage, transmission, and processing of such information is subject to our Privacy Statement.
REVIEWS PROVIDED BY USERS AND EMMYS
After you have received or provided Trip Accompaniment, you will have the opportunity to rate and review your experience about your emmys or Users, as applicable (each, a “Review”). You are solely responsible for the content in any Review you submit. We have no obligation to pre-screen, monitor, or edit Reviews, but we reserve the right to do so at any time without notice, in compliance with all applicable laws, rules, and regulations. You grant EMMY CO. a worldwide, nonexclusive, irrevocable, perpetual, royalty-free, transferable, sublicenseable right to reproduce, distribute, create derivative works of, publicly display and perform your Review(s) in all media now known or later developed, but you acknowledge and agree we have no obligation to use your Reviews in any way and may delete your Review(s) at any time for any reason without notice. Reviews are not confidential and may be available to Users paired with an emmy or emmys paired with a User. You represent and warrant that we have the right to post all content in the Review you post on our Platform and that any use of the Review will not violate the privacy rights, publicity rights, copyrights, or other rights of any person or entity.
We are not responsible for any disputes or disagreements between a User and an emmy. By providing or requesting Trip Accompaniments, you assume all risk associated with dealing with a User or emmy and agree to resolve disputes directly with the other party.
EMMY CO. may from time to time provide certain promotional opportunities and contests (“Contests”) in connection with the Platform. All such Contests will be run at EMMY CO.’s sole discretion and will be subject to separate rules and guidelines as EMMY CO. may specify in each instance.
LINKING; NO FRAMING
You may link to our homepage only, provided you do so in a way that is accurate and does not misrepresent us, damages our reputation, or suggests that EMMY CO. endorses, or approves, or is associated with you without our prior written consent in each case.
Our Platform may provide certain social media features that enable you to: (1) link from your own or certain third-party websites to certain content on this Platform; (2) send e-mails or other communications with certain content, or links to certain content, on this Platform; or (3) cause limited portions of content on this Platform to be displayed or appear to be displayed on your own or certain third-party websites. You may use these features only for the purposes as provided by us. You must not: (A) establish a link from any Platform that is not owned by you; (B) cause our Platform or Platform Content to be displayed through deep linking or in-line linking on any other Platform; or (C) take any action concerning our Platform or Platform Content that is inconsistent with any other provision of these Terms.
We reserve the right to withdraw linking permission or disable social media features and links at any time without notice in our discretion.
DISCLAIMER OF WARRANTIES
YOU UNDERSTAND AND AGREE THAT OUR SITE, OUR PLATFORM AND OUR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND THAT USE OF OUR PLATFORM AND OUR SERVICES TO PROVIDE OR RECEIVE TRIP ACCOMPANIMENT IS AT YOUR SOLE RISK. EMMY CO. AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER IMPLIED OR EXPRESS, INCLUDING: (1) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (2) WARRANTIES THAT OUR PLATFORM, OUR SERVICES, OR ANY TRIP WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, TIMELY, SECURE, ACCURATE, RELIABLE, OR OF ANY QUALITY; OR (3) WARRANTIES THAT ANY CONTENT IS SAFE FOR DOWNLOAD OR SUITABLE TO BE RELIED ON FOR ANY PURPOSE. EMMY CO. AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY ARISING FROM ANY RELIANCE FOR ANY PURPOSE ON INFORMATION AVAILABLE ON OUR PLATFORM. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR ANY LOSS OF DATA THAT RESULTS FROM YOUR USE OF OUR PLATFORM. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
ALTHOUGH EMMY CO. INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF COMPUTER VIRUSES OR OTHER MALICIOUS CODE TO OUR PLATFORM, EMMY CO. AND ITS AFFILIATES DO NOT GUARANTEE OR WARRANT THAT OUR PLATFORM IS FREE FROM SUCH DESTRUCTIVE FEATURES AND ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THEM.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EMMY CO.’S AND ITS AFFILIATES’: (1) SOLE LIABILITY TO YOU IS LIMITED TO ANY ACTUAL DIRECT DAMAGES CAUSED BY YOUR USE OF OUR PLATFORM, OUR SERVICES, OR ANY TRIP ACCOMPANIMENTS, NOT TO EXCEED $100 IN THE AGGREGATE; AND (2) EMMY CO. AND ITS AFFILIATES ARE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, STATUTORY, OR SIMILAR DAMAGES INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSS (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NO MATTER IF THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY), RESULTING FROM OR ARISING OUT OF: (A) THE USE OF OR THE INABILITY TO USE OUR PLATFORM OR SERVICES (OR TO PROVIDE OR RECEIVE TRIP ACCOMPANIMENT); (B) CONTENT ASSOCIATED WITH OUR PLATFORM, INCLUDING CONTENT FROM OTHER PLATFORMS DISPLAYED ON OUR PLATFORM; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR PERSONAL INFORMATION OR DATA TRANSMISSIONS; OR (D) ANY OTHER MATTER RELATING TO OUR PLATFORM, OUR SERVICES, USER OR EMMY CONDUCT, OR TRIP ACCOMPANIMENT. IN SOME JURISDICTIONS, THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
THE LIMITATIONS AND DISCLAIMER IN THESE TERMS DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, EMMY CO.’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, hold harmless (and, if requested, defend) EMMY CO., its affiliates, and its and their respective directors, members, officers, employees and agents against all losses, liabilities, damages, expenses and costs (including reasonable attorneys’ fees and court costs) incurred by any such party in connection with any claim or proceeding arising out of or relating to: (1) your User Content, (2) your acts or omissions in connection with your use of our Platform, or providing or receiving emmy Trip Accompaniment; (3) any claim for wrongful death, or injury to person or property caused, directly or indirectly, by you; (4) your violation of these Terms or the rights of any other user; or (5) your breach of any representation, warranty, or covenant in these Terms. We reserve the right, at our expense and with counsel of our choice, to participate in the defense (or to assume the exclusive control and defense) of any matter for which we are entitled to indemnification. You agree to provide us with cooperation we reasonably request.
Trip Accompaniment is currently being offered in a limited geographic region in New York City and in a limited geographic region of New Jersey (including Newark, Harrison, Jersey City, Hoboken). Service to New Jersey and Staten Island will incur a surcharge to accommodate for travel times. We anticipate that EMMY CO. will expand its availability to a broader geographic area in the future and current limitations have no discriminatory basis.
EMMY CO. expressly disclaims any representation, warranty or covenant that our Platform is appropriate or will be available for use in locations outside of the specific geographic area in which Trip Accompaniment is offered or outside the United States. If you choose to access our Platform from other locations, you do so at your own risk and are solely responsible for compliance with all applicable laws. You may not access our Platform from any location where doing so would be illegal.
GOVERNING LAW; DISPUTE RESOLUTION; BINDING ARBITRATION; CLASS ACTION WAIVER
These Terms and any dispute related to our Platform are governed by the laws of the State of New York applicable to agreements made and wholly performed there. By using our Platform or Trip Accompaniment, you hereby irrevocably submit to the personal and exclusive jurisdiction of the federal and state courts located within the State and County of New York for the resolution of any dispute arising out of these Terms or your use of our Platform.
Except for a claim filed in a small claims court that proceeds on an individual (non-class, non-representative) basis or a claim by EMMY CO. concerning unauthorized use of Platform Content or its other intellectual property, any and all disputes, claims or controversies arising out of or relating to these Terms, or breach of them, and any use of the Platform or services offered through them (including all transactions) (“Claims”), will be settled by binding arbitration before a single arbitrator appointed by the American Arbitration Association in accordance with its then governing rules and procedures, including the Supplementary Procedures for Consumer-Related Disputes, where applicable. In agreeing to arbitrate all Claims, you and EMMY CO. waive all rights to a trial by jury in any action or proceeding involving any Claim. The arbitration will be held in New York County, New York, and judgment on any award by the arbitrator may be entered by any court having jurisdiction over it. The arbitration will be governed by and construed and interpreted in accordance with the Federal Arbitration Act at 9 U.S.C. Section 1, et seq. The parties agree that any award and any judgment confirming it applies only to the arbitration in which it was awarded and cannot be used in any other case except to enforce the award itself. This arbitration provision will survive termination of these Terms.
The arbitrator will have authority to award legal and equitable relief available in the courts of the State of New York, provided that: (1) the arbitrator will not have authority to award punitive damages; and (2) you and EMMY CO. agree that the arbitrator will have no authority to arbitrate any Claim as a class action or in any other form other than on an individual basis. For any Claims that are not subject to arbitration: (i) the exclusive jurisdiction and venue for proceedings involving Claims will be the courts of competent jurisdiction sitting within New York County, New York; (ii) you and EMMY CO. hereby waive any argument that any such court does not have personal jurisdiction or that those courts are not appropriate or convenient; and (iii) you and EMMY CO. waive any and all rights to trial by jury with respect to any Claims.
If either party initiates a proceeding involving any Claim other than arbitration in accordance with this section or initiates a proceeding involving a Claim other than in the agreed venue, the other party may recover all attorneys' fees and expenses reasonably incurred in enforcing these Terms to arbitrate in the venue to which the parties have agreed.
To the maximum extent permitted by law, you permanently and irrevocably waive the right to bring any Claim in any venue unless you provide EMMY CO. with written notice of the event or facts giving rise to the Claim within one year after its occurrence.
You agree that any arbitration or proceeding shall be limited to the dispute between EMMY CO. and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
EMMY CLASSIFICATION AND WITHHOLDINGS
emmys are independent contractors and not employees of EMMY CO. emmys do not have authority to enter into written or oral, implied or express, contracts of any nature on behalf of EMMY CO. Each emmy and User acknowledges that EMMY CO. does not, in any way, supervise, direct, or control Trip Accompaniments in any manner. EMMY CO. does not set emmys’ work hours or specific location of work, nor provide any means of transportation or other item needed for Trip Accompaniments.
EMMY CO. does not provide employment services and EMMY CO. does not serve as an employer of any emmys. As such, EMMY CO. will not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax.
Each emmy agrees to indemnify, hold harmless and defend EMMY CO. from any and all claims that an emmy was misclassified concerning employment status, any liabilities arising from a determination by a court, arbitrator, government agency or other body that an emmy was misclassified concerning employment status (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that EMMY CO. was an employer or joint employer of an emmy, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.
By using our Platform and requesting or providing Trip Accompaniment, you agree that we may communicate with you electronically (through email, text message, mobile phone, or other internet or mobile service). Nothing in these Terms may be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship or similar relationship of any kind between EMMY CO. and any user or other person or entity, nor do these Terms extend rights to any third party. The failure of any party to assert any right under these Terms will not be considered a waiver of that party’s right, which will remain in full force and effect. These Terms, including the Privacy Statement, constitute the entire agreement and supersede all other agreements (oral or written) between you and EMMY CO. The term “including” in the Terms means “including, without being limited to.” If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give the fullest permissible effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect, if doing so does not deprive either party of a material benefit under these Terms. You may not assign your rights under the Terms without our prior written consent, and any attempted assignment in violation of this provision is null and void. EMMY CO. may assign these Terms and transfer any of its rights or obligations at any time for any reason.
We reserve the right in our sole discretion to modify, discontinue, or terminate our Platform and services at any time with or without notice to you, and/or to terminate, suspend, or block your access to our Platform and your ability to provide or receive Trip Accompaniment at any time, with or without notice to you, for any reason, including: (1) if we suspect that you have not complied with these Terms; or (2) for other reasons that we determine in good faith are necessary or appropriate, including, without limitation, if we suspect you are using or attempting to use our Platform in any way that violates any applicable laws or regulations. We are not liable to you for any loss or damage that may result from any refusal to provide you access to our Platform. Further, we are not liable if, for any reason, our Platform or any portion thereof is unavailable for any period. The “Disclaimer of Warranty,” “Limitation of Liability,” “Indemnification,” and “General Provisions” sections of these Terms (along with any other provision that by its terms contemplates survival) survive any termination. You understand that any termination of your account may involve deletion of your User Content associated with your account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your account or deletion of your User Content.
REPORT OF UNAUTHORIZED USE
Please report any violations of these Terms to us at firstname.lastname@example.org. We reserve the right to report any unauthorized use of our Platform to appropriate authorities.
If you have questions or concerns about these Terms or any part of our Platform or any changes and updates, please contact us at email@example.com.