Terms of Service: Vempathy – Effective June 1, 2017

1. Acceptance of Terms. These Terms of Service (“Terms”) contain the complete terms and conditions that apply to your use of these services (“Services”) which are provided by Vempathy Inc. (“Vempathy”). Vempathy reserves the right to make changes to the Terms from time to time. By accessing the Services or using any part of the site or any content or services provided here, you agree to be bound by the most current version of the Terms. If you do not agree to the Terms, then you may not access the site or use these Services. You may not use the services if you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services. You affirm that you are over the age of 18 and are of the age of majority in the applicable jurisdiction from which you are using the Services or accessing this site. As long as you comply with these Terms, Vempathy grants you a personal, non-exclusive, non-transferable, limited right to use the Services.

2. Description of the Service. The Service provides users the ability to record voice, video, and screen content of a session, and make it accessible for later review. When invited to a session, the Service records the session and produces searchable transcripts, summaries, recommendations, emotion analysis, documents and other information relevant to the session and its follow-up.

3. Consent to Recording; Consent to Collect Data. By using the Service in a session, you consent to the Service recording the session, including consenting to your own video, face, voice, and screen being recorded. Further, by using the Service, you consent to Vempathy collecting, recording, accessing, analyzing and using session content, recording, and other information, including email addresses and calendar information, both in and out of the session, including from other systems or applications, and device information, to provide the Service and any reports to you, and to improve the Service. You are responsible for obtaining any necessary consents from attendees at the session, and for complying with any applicable privacy or recording laws.

4. Use of the Services; User Accounts. During your and any invited users’ (including any employees, contractors, agents or invited participants) use of the Service, you will be responsible for any and all activities that occur while using the Service. If you are required to set up an account to use the Service, you must maintain the confidentiality of your account and password, and you agree to notify Vempathy promptly of any unauthorized access or of any suspected breach of your account’s security. You may be held liable for losses incurred by Vempathy and/or another party due to a third party using your account or password.

5. Your Content. You agree that you are solely responsible for the user content that you or your authorized users create, transmit, display, use, store and/or redistribute while using the Services and any claims relating to your user content (including any loss or damage which Vempathy and/or any third party may suffer, or any claims that your content infringes upon or otherwise violates the rights of a third party), and that you have obtained express consent for the creation, transmission, display, use, storage and/or redistribution of such user content within the Service. The Service is not designed or intended for the transmission or storage of confidential or sensitive information and should not be used for any such purpose. You understand that, if applicable to the Service, any confidential or personally identifiable information you share or submit may be viewed, read, modified and/or deleted by other users of the Service, and you agree that Vempathy has no obligation with respect to any user content. You are responsible for the accuracy, quality, integrity, legality, and intellectual property ownership rights to your user content. You must ensure that your user content complies with these Terms, the applicable Vempathy Privacy Policy and other applicable policies, laws and regulations. Vempathy reserves the right to immediately remove any inappropriate content or any content stored in the Services, if any. You acknowledge that Vempathy may access, use, preserve, or disclose your account information and user content, in order to provide the Service, as well as if legally required to do so or if we have a good faith belief that such access, use, preservation, or disclosure is reasonably necessary to comply with legal process or request; to enforce these Terms; to detect or prevent fraud, security, or technical issues; to protect the rights, property or safety of Vempathy, its users, or the public as permitted by law. Vempathy shall not be responsible or liable for the deletion, correction, destruction, damage or loss of any user content. If Vempathy receives notice that any user content you create, transmit, display or store while using the Services violates any law or infringes any third-party rights, Vempathy shall have the right to immediately suspend access to the Services without prior notice to you.

6. Consent to Use of Analytics. You agree that Vempathy may collect and use technical data, usage and quality statistics, systems and device data, and related information (collectively “Analytics”) that are gathered periodically to facilitate the provision of updates, support and other services to you related to the Services. Vempathy and its third party providers may monitor, use and store use Analytics to improve the Services.

7. Feedback. While using the Services, you may be asked to provide feedback regarding your use of the Services and will receive communication and correspondence from Vempathy regarding the Services. If you request to opt out from such communications or do not provide feedback as requested regarding your use of the Services, your use of the Services may be cancelled. You agree that you will not be entitled to any compensation or reimbursement from Vempathy in connection with any feedback, and you hereby assign to Vempathy all right, title and interest in and to any feedback, comments and suggestions that you provide and agree that Vempathy may incorporate such feedback into the Services or any other Vempathy product or service at any time at the sole discretion of Vempathy. Feedback may include the ability to track your use of the Services through analytic tools. All such collection and use will be in accordance with the applicable Vempathy Privacy Policy.

8. No Technical Support. Vempathy and its third-party providers do not, and are not obligated to provide any maintenance, technical or other support for the Services. Vempathy strongly recommends that you back up all data and information prior to using the Services.

9. Acceptable Use Policy. You agree not to, and not to allow any of your users, including employees and third parties, to use the Services in a manner that (i) abuses or materially disrupts any aspect of the networks, security systems, Services and/or websites of Vempathy; (ii) interferes with the use of the Services by other users; (iii) generates or facilitates unsolicited and unauthorized advertising or marketing communications, including spam; (iv) violates or facilitates the violation of the legal rights of others, and/or (v) otherwise constitutes abuse in Vempathy’s sole discretion. You agree not to access or attempt to access the Services by any means other than through the interface that is provided by Vempathy in connection with the Services. You will not use the Services for fraudulent or illegal purposes, including the storage or transmission of content infringing the intellectual property rights of others, or to communicate any message or material that is deemed harassing, threatening, indecent, obscene, slanderous, defamatory, or otherwise unlawful. You will not use the Services to intentionally distribute malware, viruses, or any other computer code, files or programs of a destructive or deceptive nature.

10. Voice and Data Transmission Charges. You are responsible for all fees and charges imposed on you by your telephone carriers, wireless providers, and other voice and/or data transmission providers for voice and data transmission used by you to access and use the Services, if any. This includes any standard text messaging rates and quota limits applicable to text messages send and/or received in connection with the Service.

11. Ownership. You hereby acknowledge that Vempathy (or Vempathy licensors or suppliers) own all legal rights, titles and interests, in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights are registered or unregistered, and wherever in the world those rights may exist). You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any of our services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Services or proprietary information related thereto. You shall not use or register (or attempt to register) any trademarks (including domain names) that are derived from or confusingly similar to those of Vempathy.

11.1 Use of Marks. Subject to these Terms, we both grant each other the right to use and display each other’s name and logo (the Licensor Marks) on our respective websites and in other promotional materials solely in connection with each of our respective activities under these Terms. All of this use of the Licensor Marks will be in accordance with the each other’s applicable usage guidelines and will inure to the benefit of Licensor. The one of us using the other’s Licensor Marks under this subsection will not use, register or take other action with respect to any of the Licensor Marks, except to the extent allowed in advance in writing by the one of us whose Licensor Marks are being used. In using the Licensor Marks under this subsection, the one of us using the other’s Licensor Marks will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. The one of us using the other’s Licensor Marks will not, at any time, misrepresent the relationship between us. The one using the other’s Licensor Marks will not present itself as an affiliate or other legal agent of the one of us whose Licensor Marks are being used. The rights to use and display each other’s Licensor Marks under this subjection will end automatically in the event these Terms terminate.

12. Modification and Termination. You may discontinue your use of the Services at any time. Notwithstanding any provision of these Terms, Vempathy reserves the right to discontinue provision of the Service, certain features and functionality, or restrict access at any time in its sole discretion with or without notice to you. If Vempathy reasonably determines that you are not using the Services, or any features or functionality within the Service, in a reasonable and normal manner, Vempathy reserves the rights to impose limits on or terminate your use of the Service. Vempathy may determine abnormal usage of the Service through comparison with overall customer usage patterns

13. DISCLAIMER OF WARRANTIES. YOU hereby acknowledge and agree that the Services are provided by Vempathy AND ANY THIRD PARTY PROVIDERS OR LICENSORS on an “as is” basis AND “AS AVAILABLE” BASIS, AND MAY CONTAIN BUGS, ERRORS, AND OTHER DEFECTS. YOUR access TO and/or use of the SERVICES, Vempathy WEBSITES, AND/OR LINKED SITES, is at YOUR sole risk. TO THE EXTENT pERMITTED BY APPLICABLE LAW, Vempathy EXPRESSLY DISCLAIMS ALL AND YOU RECEIVE NO WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Vempathy MAKES NO WARRANTY THAT ANY OF THE SERVICES WILL MEET YOUR REQUIREMENTS AND/OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES Vempathy MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICES OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. Vempathy MAKES NO WARRANTIES OR GUARANTEES REGARDING THE SECURITY OF THE SERVICES. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY SOFTWARE, INFORMATION, DATA OR EQUIPMENT. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED (INCLUDING PLUG-INS) THROUGH THE USE OF ANY OF THE SERVICES IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM AND/OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Vempathy OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

14. LIMITATION ON LIABILITY. IN NO EVENT SHALL Vempathy, ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL AND/OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THE SERVICES, AND/OR WHETHER DIRECT OR INDIRECT: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, AND (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), VIOLATION OF STATUTE, OR OTHERWISE, AND WHETHER OR NOT Vempathy HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Vempathy, ITS LICENSORS AND SUPPLIERS’ ENTIRE LIABILITY HEREUNDER IS LIMITED TO $50.00. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

15. Indemnification. You agree to hold harmless and indemnify Vempathy, its parent company, affiliates and subsidiaries, officers, directors, members of each and all agents, employees, advertisers, licensors, suppliers and/or partners, from and against any third party claim arising from or in any way related to (i) your breach of these Terms, (ii) your use of the Services, (iii) your violation of applicable laws, rules or regulations in connection with the Services, or (iv) your user content or any claims related thereto, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys fees, of every kind and nature. In such a case, Vempathy will provide you with written notice of such claim, suit or action.

16. Compliance with Laws. You agree to comply with all applicable local, state, national and foreign laws, rules, and regulations applicable to your use of the Services, including any laws regarding the export of data or software, and data sharing, data processing and data transfer laws and regulations.

17. International Use. The Services are intended for use only from within the United States. If you choose to access the Services from locations other than the United States, you access the Services by your own initiative and at your own risk and you are responsible for compliance with all relevant laws and regulations, including those relating to export, import, use, transmission and/or communication of any user content.

18. Copyright. If you believe the Services have been used in a manner that constitutes copyright infringement, you shall notify Vempathy at DMCA Notice.

19. Additional Terms of Use. Vempathy may update these Terms from time to time, which will be identified by the last updated date. Your continued access to and use of the Service constitutes your acceptance of the then-current Terms.

20. Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Massachusetts, without regard to principles of conflicts of law. Any litigation or other dispute resolution between you and Vempathy arising out of or relating to these Terms or your use of the Services shall be instituted in a state or federal court in Suffolk County, Massachusetts. You and Vempathy hereby consent to the personal jurisdiction of and exclusive venue of these state and federal courts with respect to any such litigation or dispute resolution.

21. Apple Terms and Conditions. For Services offered by Vempathy through the Apple App Store, the following additional Apple Terms and Conditions shall apply:

21.1 Acknowledgement. You and Vempathy acknowledge that these Terms are concluded between you and Vempathy, and not with Apple, and that Vempathy, not Apple, is solely responsible for the Services and the content thereof. These Terms may not provide for usage rules for the Services that are less restrictive than the applicable Apple Usage Rules, or otherwise be in conflict with, the App Store Terms of Service in place as of the date of these Terms (which you acknowledge that you have had the opportunity to review).

21.2 Scope of Services. Use of the Services is (i) granted to you only; (ii) limited to use on any iPhone or iPod touch that you own or control and as permitted by the applicable Apple Usage Rules set forth in the App Store Terms of Service; (iii) is non-transferable; and (iv) shall be limited to the Services available in the App Store and as described in the applicable App Store description.

21.3 Maintenance and Support. Vempathy is solely responsible for providing any maintenance and support with respect to the Services specified in these Terms, or as required under applicable law. You and Vempathy acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support with respect to the Services.

21.4 Warranty. Vempathy is solely responsible for any product warranties, if any, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price for the Services, and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Vempathy.

21.5 Product Claims. Vempathy, not Apple, is responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

21.6 Intellectual Property Rights. In the event of any third party claim that the Services or your possession and use of the Services infringes that third party’s intellectual property rights, Vempathy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

21.7 Legal Compliance. You represent and warrant that (i) you are is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

21.8 Developer Name and Address. You may direct any questions, complaints or claims related to these Terms to Vempathy by contacting Vempathy Global Customer Support by emailing info@vempathy.com or by phone +1 (949) 424-3359.

21.9 Third Party Terms of Agreement. You must comply with any applicable third party terms of agreement when using the Services, e.g., if you have a VoIP application, then you must comply with your applicable wireless data service agreement when using the Services.

21.10 Third Party Beneficiary. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.

21.11 Order of Precedence. In the event of conflict between this Section, the App Store Terms of Service and the other provisions of these Terms, the order of precedence shall be as follows: (i) the App Store Terms and Conditions and any other applicable Apple agreements (ii) this Section of the Terms, and (iii) the remainder of the Terms.

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