Last updated: August 30, 2017
Welcome to Emongus.com. Emongus and/or its affiliates (“Emongus”) provide website features and other products and services to you when you visit or shop at Emongus.com, use Emongus products or services, use Emongus applications for mobile, or use software provided by Emongus in connection with any of the foregoing (collectively, “Emongus Services”). Emongus provides the Emongus Services subject to the following conditions.
By using Emongus Services, you agree to these conditions. Please read them carefully.
We offer a wide range of Emongus Services, and sometimes additional terms may apply. When you use an Emongus Service (for example, Your Profile, Gift Cards, Emongus Video, Your Media Library, Emongus devices, or Emongus applications) you also will be subject to the guidelines, terms and agreements applicable to that Emongus Service (“Service Terms”). If these Conditions of Use are inconsistent with the Service Terms, those Service Terms will control.
Please review our Privacy Notice, which also governs your use of Emongus Services, to understand our practices.
When you use Emongus Services, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on this site or through the other Emongus Services, such as our Message Center, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
All content included in or made available through any Emongus Service, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software is the property of Emongus or its content suppliers and protected by United States and international copyright laws. The compilation of all content included in or made available through any Emongus Service is the exclusive property of Emongus and protected by U.S. and international copyright laws.
In addition, graphics, logos, page headers, button icons, scripts, and service names included in or made available through any Emongus Service are trademarks or trade dress of Emongus in the U.S. and other countries. Emongus’s trademarks and trade dress may not be used in connection with any product or service that is not Emongus’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Emongus. All other trademarks not owned by Emongus that appear in any Emongus Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Emongus.
One or more patents owned by Emongus apply to the Emongus Services and to the features and services accessible via the Emongus Services. Portions of the Emongus Services operate under license of one or more patents.
LICENSE AND ACCESS
Subject to your compliance with these Conditions of Use and any Service Terms, and your payment of any applicable fees, Emongus or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Emongus Services. This license does not include any resale or commercial use of any Emongus Service, or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of any Emongus Service or its contents; any downloading, copying, or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Conditions of Use or any Service Terms are reserved and retained by Emongus or its licensors, suppliers, publishers, rightsholders, or other content providers. No Emongus Service, nor any part of any Emongus Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Emongus. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Emongus without express written consent. You may not use any meta tags or any other “hidden text” utilizing Emongus’s name or trademarks without the express written consent of Emongus. You may not misuse the Emongus Services. You may use the Emongus Services only as permitted by law. The licenses granted by Emongus terminate if you do not comply with these Conditions of Use or any Service Terms.
You may need your own Emongus account to use certain Emongus Services, and you may be required to be logged in to the account and have a valid payment method associated with it. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your account or password. Emongus does sell products for children, but it sells them to adults, who can purchase with a credit card or other permitted payment method. If you are under 18, you may use the Emongus Services only with involvement of a parent or guardian. Alcohol listings on Emongus are intended for adults. You must be at least 21 years of age to purchase alcohol, or use any site functionality related to alcohol. Emongus reserves the right to refuse service, terminate accounts, terminate your rights to use Emongus Services, remove or edit content, or cancel orders in its sole discretion.
REVIEWS, COMMENTS, COMMUNICATIONS, AND OTHER CONTENT
You may post reviews, comments, photos, videos, and other content; send e-cards and other communications; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam” or unsolicited commercial electronic messages. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Emongus reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.
If you do post content or submit material, and unless we indicate otherwise, you grant Emongus a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant Emongus and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Emongus for all claims resulting from content you supply. Emongus has the right but not the obligation to monitor and edit or remove any activity or content. Emongus takes no responsibility and assumes no liability for any content posted by you or any third party.
Emongus respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please follow our Notice and Procedure for Making Claims of Copyright Infringement
RISK OF LOSS
All purchases of physical items from Emongus are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
RETURNS, REFUNDS AND TITLE
Emongus does not take title to returned items until the item arrives at our fulfillment center. At our discretion, a refund may be issued without requiring a return. In this situation, Emongus does not take title to the refunded item.
Emongus attempts to be as accurate as possible. However, Emongus does not warrant that product descriptions or other content of any Emongus Service is accurate, complete, reliable, current, or error-free. If a product offered by Emongus itself is not as described, your sole remedy is to return it in unused condition.
“List Price” means the suggested retail price of a product as provided by a manufacturer, supplier, or seller. We regularly check List Prices against prices recently found on Emongus and other retailers. Certain products may have a “Was Price” displayed, which is determined using recent price history of the product on Emongus.
With respect to items sold by Emongus, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items in our catalog may be mispriced. If the correct price of an item sold by Emongus is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Other merchants may follow different policies in the event of a mispriced item.
We generally do not charge your credit card until after your order has entered the shipping process or, for digital products, until we make the digital product available to you.
When you use apps created by Emongus, such as the Emongus App or Kindle App, you may grant certain permissions to us for your device. Most mobile devices provide you with information about these permissions.
SANCTIONS AND EXPORT POLICY
You may not use any Emongus Service if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using Emongus Services. You must comply with all U.S. or other export and re-export restrictions that may apply to goods, software (including Emongus Software), technology, and services.
Parties other than Emongus operate stores, provide services or software, or sell product lines through the Emongus Services. In addition, we provide links to the sites of affiliated companies and certain other businesses. We are not responsible for examining or evaluating, and we do not warrant, the offerings of any of these businesses or individuals (including the content of their Web sites). Emongus does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THE EMONGUS SERVICES AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE EMONGUS SERVICES ARE PROVIDED BY EMONGUS ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. EMONGUS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE EMONGUS SERVICES, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE EMONGUS SERVICES, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE EMONGUS SERVICES IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY LAW, EMONGUS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EMONGUS DOES NOT WARRANT THAT THE EMONGUS SERVICES, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE EMONGUS SERVICES, EMONGUS’S SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM EMONGUS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULL EXTENT PERMISSIBLE BY LAW, EMONGUS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY EMONGUS SERVICE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY EMONGUS SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
Any dispute or claim relating in any way to your use of any Emongus Service, or to any products or services sold or distributed by Emongus or through Emongus.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 123 East Marcy Street, Suite 101 Santa Fe, NM 87501. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Emongus may seek attorneys’ fees and costs in arbitration, and other additional damages if the arbitrator determines the claims are frivolous, fraudulent, or defamatory. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
By using any Emongus Service, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of New Mexico, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Emongus.
SITE POLICIES, MODIFICATION, AND SEVERABILITY
Please review our other policies, such as our pricing policy, posted on this site. These policies also govern your use of Emongus Services. We reserve the right to make changes to our site, policies, Service Terms, and these Conditions of Use at any time. If any of these terms or conditions shall be deemed invalid, void, or for any reason unenforceable, that term or condition shall be modified to the least extent to make such provision valid and enforceable, if legally permissible, or, if not, be deemed severable and shall not affect the validity and enforceability of any remaining terms and conditions.
ADDITIONAL EMONGUS SOFTWARE TERMS
The following terms (“Software Terms”) apply to any software (including any updates or upgrades to the software) and any related documentation we make available to you in connection with Emongus Services (the “Emongus Software”).
Use of the Emongus Software. You may use Emongus Software solely for purposes of enabling you to use the Emongus Services as provided by Emongus, and as permitted by these Conditions of Use and any Service Terms. You may not incorporate any portion of the Emongus Software into other programs or compile any portion of it in combination with other programs, or otherwise copy (except to exercise rights granted in this section), modify, create derivative works of, distribute, assign any rights to, or license the Emongus Software in whole or in part. All software used in any Emongus Service is the property of Emongus or its software suppliers and is protected by United States and international copyright laws.
No Reverse Engineering. You may not reverse engineer, decompile or disassemble, tamper with, or bypass any security associated with the Emongus Software, whether in whole or in part.
Updates. We may offer automatic or manual updates to the Emongus Software at any time and without notice to you.
Government End Users. If you are a U.S. Government end user, we are licensing the Emongus Software to you as a “Commercial Item” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights we grant you to the Emongus Software are the same as the rights we grant to all others under these Conditions of Use.
Conflicts. In the event of any conflict between these Conditions of Use and any other Emongus or third-party terms applicable to any portion of Emongus Software, such as open-source license terms, such other terms will control as to that portion of the Emongus Software and to the extent of the conflict.
How to Serve a Subpoena
If you have a subpoena to serve on Emongus, please note that Emongus does not accept service via e-mail or fax and will not respond to the subpoena. All subpoenas must be properly served on Emongus.com, preferably by mailing the subpoena to Corporation Service Company (CSC), Emongus’s national registered agent. Please find below the Washington address for CSC (the CSC office in your jurisdiction may be located through the Secretary of State’s website):
Emongus.com, Inc. Corporation Service Company 123 East Marcy Street, Suite 101 Santa Fe, NM 87501 Attn: Legal Department – Subpoena
Please note also that providing detailed and accurate information at the outset will facilitate efficient processing of your request. That information will include, for example, e-mail and/or credit card number used to make purchases for retail purchase information; the name, e-mail, and physical address of a seller for seller information; device serial number for Emongus devices; and IP address and complete time stamps.
Notice and Procedure for Making Claims of Copyright Infringement
If you believe that your work has been copied in a way that constitutes copyright infringement, please submit your complaint. We respond quickly to the concerns of rights owners about any alleged infringement. Please provide us with this information:
- A physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed upon;
- A description of where the material that you claim is infringing is located on the site;
- Your address, telephone number, and e-mail address;
- 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;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Emongus’s Copyright Agent for notice of claims of copyright infringement on its site can be reached as follows:
Courier address: Copyright Agent - Legal Department e-mail: copyright@Emongus.com
Please note that this procedure is exclusively for notifying Emongus that your copyrighted material has been infringed.