_Unity BV. (or "we") operates Embraceled.com, which is an online service that allows Members to create unique personal profiles online in order to find and communicate with new friends, business relations or loved ones offline, by using the physical Embraceled product. This agreement does not cover the functionality or usage of the physical Embraceled product. The services offered by Embraceled include any Embraceled-branded URL (the "Embraceled Website"), the Embraceled iPhone and Android applications (if available), Embraceled mobile services, and any other features, content, or applications offered from time to time by Embraceled in connection with Embraceled's business (collectively, the "Embraceled Services"). The Embraceled Services are hosted in the Netherlands. The terms of the physical Embraceled product are accessible when buying one in the dedicated store or trough the webshop.
Please review this Agreement carefully, including the Arbitration provision in Section 15, which describes how disputes will be resolved between us, and that no class actions may be brought under this Agreement.
Embraceled may modify this Agreement from time to time and such modification shall be effective upon posting by Embraceled on the Embraceled Website. All material modifications will apply prospectively only. Your continued use of the Embraceled Services after Embraceled posts a revised Agreement signifies your acceptance of the revised Agreement. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
Please choose carefully the information you post on or through the Embraceled Services and that you provide to other Users. Your Embraceled profile may not include any form of Prohibited Content, as outlined in Section 8 below. Despite this prohibition, information, materials, products or services provided by other Embraceled Members (for instance, in their profile) may, in whole or in part, be unauthorized, impermissible or otherwise violate this Agreement, and Embraceled assumes no responsibility or liability for this material. If you become aware of misuse of the Embraceled Services by any person, please notify Embraceled by sending an e-mail to email@example.com, subject: Misuse of Embraceled
Embraceled reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Embraceled Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. Embraceled expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Embraceled Services if Embraceled determines, in its sole discretion, that you have violated this Agreement or pose a threat to Embraceled and/or its Users.
Eligibility. Use of the Embraceled Services and registration to be a Member for the Embraceled Services ("Membership") is void where prohibited. By using the Embraceled Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 13 years of age or older; and (d) your use of the Embraceled Services does not violate any Applicable Law. Your profile may be deleted, and your Membership may be terminated without warning, if we believe that you are under 13 years of age, if we believe that you are under 18 years of age and you represent yourself as 18 or older, or if we believe you are over 18 and represent yourself as under 18.
Term. This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the Embraceled Services or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on the Embraceled website, choosing to deactivate your account in the Settings page of the Embraceled application, or e-mailing firstname.lastname@example.org subject: delete account. Embraceled may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability. Furthermore, Embraceled reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including, without limitation, private messages, and emails (collectively; messages) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Embraceled Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. In addition, Embraceled reserves the right, in its sole discretion, to reassign or rename your profile URL. Embraceled expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Embraceled Services if Embraceled determines, in its sole discretion, that you have violated this Agreement or pose a threat to Embraceled, its employees, business partners, Users and/or the public. Even after Membership is terminated, this Agreement will remain in effect, including Sections 6-18.
Fees. You acknowledge that Embraceled reserves the right to charge for any portion of the Embraceled Services and to change its fees (if any) from time to time in its discretion. If Embraceled terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of payments for the Product (if any).
Password. When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, password or other identifiers of another Member at any time or to disclose your password to any third party. You agree to notify Embraceled immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
Use by Members. The Embraceled Services are for the personal use of Members and may be used for promotional purposes as well, but direct commercial endeavors may only be used if they are specifically endorsed or authorized by Embraceled. Embraceled reserves the right to remove commercial content in its sole discretion. Illegal and/or unauthorized use of the Embraceled Services, including, without limitation, collecting usernames, user id numbers, and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Embraceled Website, or employing third party promotional sites or software to promote profiles for money, is prohibited. Commercial advertisements, affiliate links, and other forms of unauthorized solicitation may be removed from Member profiles without notice or explanation and may result in termination of Membership privileges. Embraceled reserves the right to take appropriate legal action, including, without limitation, referral to law enforcement, for any illegal or unauthorized use of the Embraceled Services.
Proprietary Rights in Content on Embraceled.
Embraceled does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Embraceled Services. After posting your Content to the Embraceled Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. By displaying or publishing ("posting") any Content on or through the Embraceled Services, you hereby grant to Embraceled a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on or through the Embraceled Services, or distributing part or all of the Embraceled Services in any media formats and through any media channels. After you remove your Content from the Embraceled Services, we will ceasedistribution as soon as practicable, and at such time when distribution ceases, the license will terminate.
The license you grant to Embraceled is non-exclusive (meaning you are free to license your Content to anyone else in addition to Embraceled), fully-paid and royalty-free (meaning that Embraceled is not required to pay you for the use on the Embraceled Services of the Content that you post), sublicensable (so that Embraceled is able to use its affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide the Embraceled Services), and worldwide (because the Internet and the Embraceled Services are global in reach).
You represent and warrant that: (i) you own the Content posted by you on or through the Embraceled Services or otherwise have the right to grant the license set forth in this Section 6, and (ii) the posting of your Content on or through the Embraceled Services does not violate the privacy rights, Terms of Service, publicity rights, copyrights, contract rights or any other rights of any person or entity. In the instance of a Terms of Service violation, you agree to relinquish all rights to any Content you have posted; Embraceled then becomes the sole owner of your Content. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of any Content posted by you on or through the Embraceled Services.
The Embraceled Services contain Content of _Unity BV, its affiliates, subsidiaries or licensors ("Embraceled Content"). Embraceled Content is protected by copyright, trademark, patent, trade secret and other laws, and Embraceled owns and retains all rights in the Embraceled Content and the Embraceled Services. Embraceled hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Embraceled Content (excluding any software code) solely for your personal use in connection with viewing the Embraceled Website and using the Embraceled Services.
The Embraceled Services contain Content of Users and other Embraceled licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the Embraceled Services.
Embraceled performs technical functions necessary to offer the Embraceled Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the Embraceled Services.
Content Posted. Embraceled may reject, refuse to post or delete any Content for any or no reason, including Content that in the sole judgment of Embraceled violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. Embraceled assumes no responsibility for monitoring the Embraceled Services for inappropriate Content or conduct. If at any time Embraceled chooses, in its sole discretion, to monitor the Embraceled Services, Embraceled nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content. You are solely responsible for the Content that you post on or through any of the Embraceled Services, and any material or information that you transmit to other Members and for your interactions with other Users.
Content/Activity Prohibited. The following are examples of the kind of Content that is illegal or prohibited to post on or through the Embraceled Services. Embraceled reserves the right to investigate and take appropriate legal action against anyone who, in Embraceled sole discretion, violates this provision, including without limitation, removing the offending Content from the Embraceled Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of Embraceled:
- is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person;
- exploits people in a sexual or violent manner;
- contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
- publicly posts information that poses or creates a privacy or security risk to any person;
- constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- constitutes or promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files;
- involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
- contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
- furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
- solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
- involves commercial activities and/or sales without prior written consent from Embraceled such as contests, sweepstakes, barter, advertising, or pyramid schemes, or is intended to defraud, swindle or deceive other Users;
- includes a photograph or video of another person that you have posted without that person's consent; or
violates the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.
The following are examples of the kind of activity that is illegal or prohibited on the Embraceled Website and through your use of the Embraceled Services. Embraceled reserves the right to investigate and take appropriate legal action against anyone who, in Embraceled's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
- criminal or tortious activity, including, without limitation, child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
- advertising to, or solicitation of, any Member to buy or sell any products or services through the unauthorized or impermissible use of the Embraceled Services. You may not transmit any chain letters or junk email to other Members. In order to protect our Members from such advertising or solicitation, Embraceled reserves the right to restrict the number of messages which a Member may send to other Members in any 24-hour period to a number which Embraceled deems appropriate in its sole discretion. If you breach this Agreement and send unsolicited bulk email, instant messages or other unauthorized commercial communications of any kind through the Embraceled Services, you acknowledge that you will have caused substantial harm to Embraceled, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay Embraceled €25 for each such unsolicited email or other unauthorized commercial communication you send through the Embraceled Services;
- circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the Embraceled Services;
- activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
- covering or obscuring any banner advertisements on your personal profile page, or any Embraceled page via Html/CSS or any other means;
- any automated use of the system, such as, but not limited to, using scripts to send comments or messages;
- interfering with, disrupting, or creating an undue burden on the Embraceled Services or the networks or services connected to the Embraceled Services;
- impersonating or attempting to impersonate another Member, person or entity;
- using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
- selling or otherwise transferring your profile;
- using any information obtained from the Embraceled Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
- displaying an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the Embraceled Services on behalf of that person, such as placing commercial content on your profile, posting blogs or bulletins with a commercial purpose, or sending private messages with a commercial purpose; or
- using the Embraceled Services in a manner inconsistent with any and all Applicable Law.
Protecting Copyrights and Other Intellectual Property. Embraceled respects the intellectual property of others, and requires that our users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. It is Embraceled’s policy to terminate the Membership of repeat infringers.
If you believe your work has been copied and posted on or through the Embraceled Services in a way that constitutes copyright infringement, please send a Embraceled Copyright Agent a notification of claimed infringement with all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Embraceled Services (providing the URL(s) of the claimed infringing material satisfies this requirement); (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and (f) your physical or electronic signature. Embraceled's Copyright Agent for notification of claimed infringement can be reached electronically by e-mailing email@example.com, Subject: Copyright infrigement
Member Disputes. You are solely responsible for your interactions with other Embraceled Members. Embraceled reserves the right, but has no obligation, to become involved in any way with disputes between you and other Members.
Disclaimers. Embraceled is not responsible for and makes no warranties, express or implied, as to the User Content or the accuracy and reliability of the User Content posted on or through the Embraceled Services, whether caused by Users of the Embraceled Services or by any of the equipment or programming associated with or utilized in the Embraceled Services, and such User Content does not necessarily reflect the opinions or policies of Embraceled. Profiles and third party applications created and posted by Members on the Embraceled Website may contain links to other websites and services. Embraceled is not responsible for the content, accuracy or opinions expressed on such websites and services, and such websites and services are not necessarily investigated, monitored or checked for accuracy or completeness by Embraceled. Inclusion of any linked website or service on the Embraceled Services does not imply approval or endorsement of the linked website or service by Embraceled. When you access these third party sites and services, you do so at your own risk. Embraceled takes no responsibility for third party advertisements or third party applications that are posted on or through the Embraceled Services, nor does it take any responsibility for the goods or services provided by its advertisers. Embraceled is not responsible for the conduct, whether online or offline, of any User of the Embraceled Services. Embraceled assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication. Embraceled is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or mobile data networks, on any of the Embraceled Services, or any combination thereof, including, without limitation, any injury or damage to Users or to any person's computer or mobile device related to or resulting from participation or downloading materials in connection with the Embraceled Services. Under no circumstances shall Embraceled be responsible for any loss or damage, including, without limitation, personal injury or death, resulting from use of the Embraceled Services, attendance at a Embraceled event, from any User Content posted on or through the Embraceled Services, or from the conduct of any Users of the Embraceled Services, whether online or offline. The Embraceled Services are provided "AS-IS" and as available and Embraceled expressly disclaims any warranty of fitness for a particular purpose or non-infringement. Embraceled cannot guarantee and does not promise any specific results from use of the Embraceled Services.
Limitation on Liability. IN NO EVENT SHALL EMBRACELED BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE EMBRACELED SERVICES, EVEN IF EMBRACELED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOT WITH STANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EMBRACELED'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO EMBRACELED FOR THE EMBRACELED SERVICES DURING THE TERM OF MEMBERSHIP.
- Arbitration of Disputes. You and Embraceled agree that any disputes arising out of or related to the Embraceled Services, this Agreement and/or any policies or practices of Embraceled will be subject to FINAL AND BINDING ARBITRATION as set forth in this section, and may only be resolved through an individual arbitration governed by the Federal Arbitration Act, to the maximum extent permitted by applicable law. The only exceptions to this agreement to arbitrate disputes are claims of infringement or misappropriation of Embraceled’s copyright, patent, trade secret, trademark, service mark, trade dress or other intellectual property or proprietary rights, which Embraceled may elect to have resolved by means other than arbitration. YOU AND EMBRACELED AGREE THAT WE ARE EACH GIVING UP OUR RIGHT TO GO TO COURT in connection with any dispute, and that our rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY.
- No Class Actions. YOU AND EMBRACELED ACKNOWLEDGE THAT NEITHER OF US WILL BRING OR PARTICIPATE IN ANY CLASS ACTION OR OTHER CLASS PROCEEDING IN CONNECTION WITH ANY DISPUTE WITH THE OTHE PARTY. Further, neither you nor Embraceled agrees to class arbitration or any arbitration where a person brings a dispute as a representative of other person(s).
- Arbitration Procedure. If the parties are unable to resolve a dispute by informal means, the arbitration of disputes will applied according to the Dutch law, a non-profit organization not affiliated with Embraceled, in accordance with its Commercial Arbitration Rules, and if deemed appropriate by the arbitrator, the Supplementary Procedures for Consumer-Related Disputes.
- Enforcement. Any proceeding to enforce this arbitration agreement may be brought in any court of competent jurisdiction.
- Limitation of Time Period to Commence a Dispute. Regardless of any statute or law to the contrary, and to the maximum extent permitted by applicable law, any dispute must be filed within one (1) year after the date in which the incident giving rise to the dispute occurred. Failure to file an arbitration claim as described above within the applicable limitations period constitutes a waiver of such claim and serves as complete bar to any claim based on any dispute.
Indemnity. You agree to indemnify and hold Embraceled, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, without limitation, reasonable attorneys' fees, made by any third party due to or arising out of your use of the Embraceled Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement and/or any Content that you post on or through the Embraceled Services.
Other. This Agreement is accepted upon your use of the Embraceled Website or any of the Embraceled Services and is further affirmed by you becoming a Member. This Agreement constitutes the entire agreement between you and Embraceled regarding the use of the Embraceled Services. The failure of Embraceled to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Embraceled is a trademark of _Unity BV. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. This Agreement shall be governed by, and construed in accordance with, the Dutch law. Without regard to its conflict of law provisions.
Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.