Terms of Service
Last updated: February 18, 2022
Introduction
Please read these Terms of Service (“TOS”) carefully. These TOS govern your: (i) use of Emerge’s web domains and subdomains, including emerge.io (our “Site(s)”); (ii) use of the Emerge Home Mobile Application (the “EM App”), (iii) use of the Emerge Home Quest App (the “HQ App”); and (iv) access to and/or use of Emerge games (each a "Game" and collectively "Games") via the Emerge Wave 1 Device (“W1D”). These TOS also apply to any other services that we may provide in connection with the Site(s), the Apps, and/or the Games. We refer to the content and functionality of the Site(s) and the Apps, including without limitation the Games and other services, collectively as our “Service.”
As used in these TOS, “Emerge”, “we”, “us”, or “our” refer to Emerge Now, Inc., and “user”, “you” and “your” refer to users of all or any part of the Service.
Under these TOS, any disputes arising between you and us are subject to binding arbitration, unless you exercise your right to opt out of arbitration within the period specified below. Please review “Mediation and Binding Arbitration” below.
If you are under 13 years of age, do not use or provide any information to any Emerge App or Site.
Summary
This summary is general, provided only for convenience and does not address all aspects of this TOS. Because this Summary excludes important information that affects your rights, please review the TOS in its entirety for important additional information, details and our complete legal conditions that apply to your use of the Service.
These TOS are a legal agreement between you and Emerge that govern whether and how you may use the Service. We may change the TOS at any time. Use of the Service is also subject to our Privacy Policy
The Service is not intended for children under the age of 13. If you are under 13, do not use the Service. If you are age 13 or over but under age 18, you may use the Service only with the consent of your parent or legal guardian.
The Service is owned by Emerge and its licensors. You may only use the Service for personal use. You may not sell or transfer any part of the Service, or any content or digital items within the Service, to anyone else.
You may not copy or modify any content from the Service, or any trademarks appearing in the Service, except as we expressly allow in these TOS.
Tactile interactions via the W1D are strictly limited to interactions between users after (i) one user has requested that another user become a member of their Inner Circle, and (ii) the request was expressly accepted. Thus tactile interactions are limited to members of the same Inner Circle.
Each Game sets forth its applicable standards, rules and procedures, all of which are a material part of these TOS. All users must comply with applicable Game rules at all times.
You will be responsible for all charges relating to the Service. Although an App may be free to download, real-money charges may apply for in-app additional features, content or items purchased.
You are responsible for maintaining the security of your account information with Apple App Store, Google Play or other mobile application store used to access the Service or App(s) in order to avoid unauthorized charges, including by children using your device.
Amounts paid are non-refundable except as required under local law of your jurisdiction. In certain cases the mobile application store from which you obtained an App, such as the Apple App Store or Google Play, may provide refunds.
You may not post any inappropriate content in or through the Service, or any content that you do not have legal rights to. You agree that Emerge may use any content you post for any purpose, including for advertising.
We may discontinue or change the Service, including any features of the Service, at any time without notice or liability to you.
Our liability to you relating to the Service is limited. You agree that any disputes will be subject to binding arbitration, to be held in Los Angeles, California, USA.
Your Agreement to these TOS and Future Changes
These TOS are a legal agreement between you and Emerge. The Emerge App and Service are licensed, not sold, to you by Emerge. We reserve all rights in and to the Service not expressly granted to you under these TOS. We may modify these TOS, at our sole discretion, without your consent, effective immediately upon posting of the revised TOS, and you agree to and accept this condition. Material changes to these TOS will be announced by posting them in the mobile application stores and Sites where the Service are available. You are responsible for checking these TOS each time before using the Service. Continued use of the Service following the posting of changes means that you accept and agree to the updated TOS.
Scope of License
Your rights under these TOS are limited to a personal, non-commercial, nontransferable license to use the Service on devices that you own or control: (a) in accordance with our Mobile Terms of Service located here; and (b) as permitted by the usage rules for the mobile app store through which you accessed the Emerge App (if applicable) or other terms and conditions applying to your device. These TOS do not allow you to use the Service on any device that you do not own or control, and except as provided in the rules relating to your device, you may not distribute or make the Service available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, transfer redistribute, or sublicense the Service and, if you sell your device to a third party, you agree to remove all Apps before doing so. You may not copy (except as expressly permitted by these TOS and the rules for your device), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-source components included with the Service). Any attempt to do so is a violation of the rights of Emerge and our licensors. If you breach this restriction, you may be subject to prosecution and damages.
These TOS will govern any upgrades provided by Emerge that replace and/or supplement the original Service, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern. You acknowledge that these TOS are concluded solely between you and Emerge, and not with any mobile application store from which you downloaded an Emerge App (for example, Apple Inc. or Google Inc.), and that Emerge is solely responsible for the Service and the content thereof, except as otherwise provided in these TOS. If you have an Apple device and these TOS are less restrictive than, or in conflict with, the terms of service for such device, the terms of service for such device will govern.
Except as otherwise expressly agreed by you and us in writing, use of the term “purchase” in these TOS does not imply that you obtain any ownership rights to the Service or any virtual currency or virtual goods.
Restrictions on Tactile Interaction
The Service allows users to physically interact via tactile sensations created through sculpted ultrasound waves generated by the W1D Device. Authorized tactile interactions are strictly limited to consensual interactions between users when (a) one user has officially requested that the other user become a member of their Inner Circle, (b) the user who is the subject of the initial request officially consented to be added to the requesting user’s Inner Circle. Thus, tactile interactions are limited to members of the same Inner Circle.
Games
Each Game sets forth its applicable standards, rules and procedures, all of which are a material part of these TOS. All users must comply with these TOS and applicable Game rules at all times. Users may only compete against others who are members of their shared Inner Circles. By accessing and/or playing our Games you agree that your user name, display name, scores, avatar, country location, online/offline status and related details may be displayed in any and all media now known or hereafter devised, for any purpose, in perpetuity, without any payment to you, including without limitation to other users in our Games and/or for marketing purposes. You also understand and agree that other users may find you by searching for you with your email address. Please note that we will only publicly show your user name and/or display name, not your email address.
Intellectual Property
All content included in the Service, including text, design, graphics, logos, user interfaces, button icons, images, photographs, audio clips, video clips, digital downloads, data compilations and software (but not including any content posted by users) is owned by Emerge or our licensors and protected by applicable copyright laws. The Service may include registered and unregistered trademarks owned by or licensed to Emerge, which may not be copied, imitated or used, without the prior written permission of Emerge. You agree that you will not apply for, register, or otherwise use or attempt to use any Emerge trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold in our sole discretion. You may not use the Emerge’s name without our prior written consent, which may be granted or withheld in our sole discretion.
Charges
If there is a charge associated with the Service, you agree to pay that charge. If any of the Service is free, there may still be charges for additional content within the Service, including virtual currency and real and/or virtual goods, if applicable, and you agree to pay those charges. You may be able to prevent purchase of such additional content by adjusting your device's settings.
The Apple iPhone, iPad and other devices may keep you logged on for a period of time after you download an Emerge App (or after you make a purchase through a Emerge App). This may allow a user (for example, a child) to incur charges without entering your password. This is a function of the software of these devices and not within our control. You may be able to change this function through the “settings” menu on your device.
Prices for the Service and items available through the Service exclude all applicable taxes and currency exchange settlements, unless stated otherwise. You may still incur charges incidental to using the Service even if the Service itself is free (for example, charges for internet access, text messaging, and other data transmission). You are solely responsible for the payment of such taxes or other charges related to your use of the Service.
Any amounts paid for the Service are non-refundable, except to the extent required by applicable law or as expressly set forth in these TOS.
If you are a resident of the European Union, you consent that we may make available to you the Service and any virtual currency or virtual goods directly after your order has been accepted by the Apple App Store, Google Play or other mobile application store. As a result, you hereby expressly acknowledge that you lose any legal right to withdraw from the purchase of the Service or such virtual items.
Consent to Use of Data
We may ask you to submit personal information in order to use certain features of the Service. You agree to provide and maintain true, accurate, complete and current information. If you provide any information that is untrue, inaccurate, incomplete or not current, Emerge has the right to suspend or terminate your account and refuse any and all current or future use of the Service by you.
Emerge is committed to protecting your privacy. Please review our Privacy Policy, which explains what information we collect from you and how that information is used. By using the Service, you agree to be bound by the Privacy Policy.
You agree that we may collect and use technical data, app usage data, and related information, including but not limited to, technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Service. We may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide new applications to you.
Minor Users
The Service is not intended for children under the age of 13. If you are under 13 years of age, do not use or provide any information to any Emerge App or Site.
If you are age 13 or over but under age 18, you may use the Service only with the consent of your parent or legal guardian. Emerge relies upon parents and guardians to determine if the Service is appropriate for the viewing or access by persons under the age of 18. You agree to monitor use of your account by persons younger than the age of 18. You agree to accept full responsibility for any unauthorized use of your account by persons under the age of 18, including responsibility for any use of your credit card or other payment instrument.
Taxes; Reporting
You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority (“Taxes”) associated with your use of the Service. You will pay or reimburse us for all Taxes that we are required to pay on your behalf. You shall not be entitled to deduct the amount of any Taxes from payments made to us pursuant to these TOS.
You are entirely responsible for the safety and management of your own digital wallet. We may require you to provide additional information and/or documents at the request of any competent authority or in connection with any applicable law or regulation, including without limitation laws related to anti-money-laundering. Emerge may also require you to provide additional information and documents in cases where we have reason to believe that: (a) you are using the Service (or any portion thereof) for money-laundering or for any other illegal activity; (b) you have concealed or reported false identification information and/or other details; and/or (c) transactions by you were effected in breach of these TOS. In such cases, Emerge, in its sole discretion, may (d) revoke any rights granted to you by Emerge hereunder; or (e) pause or cancel your transactions until such additional information and documents are reviewed by us and accepted as satisfying the requirements of applicable law. If you do not provide complete and accurate information and documents in response to such a request, Emerge may, in addition to the foregoing penalties, terminate your access to the Service.
User Content
The Service may invite or enable you and other users to create, submit, post, display, transmit, perform, publish or distribute communications, content and materials by e-mail or through online forums, comments windows or other functionality of the Service or portions thereof. This may include without limitation videos, blockchain-backed digital content, .vox files, holograms, NFTs and/or related metadata.
Emerge has no obligation to accept, display, review, maintain or otherwise exploit any user content. By posting user content to the Service, you represent and warrant that you have all rights, including under copyright, to do so, and that such content is not illegal, defamatory or pornographic. You agree that user content is not confidential. You further agree that user content will not be returned to you. You hereby grant to Emerge a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license (with the right to sublicense), to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit for any purpose user content via the Service or by any other means. You further hereby irrevocably grant to Emerge the unconditional right to use and exploit your user name, persona and likeness included in any user content and in connection with any user content, without any obligation to you. Except as prohibited by law, you waive and agree never to assert any rights of attribution and/or any moral rights you may have in user content, regardless of whether user content is altered or changed in a manner not agreeable to you.
The Service may restrict your ability to share your user content in the Service. Unless otherwise notified by Emerge, however, you may save and share it via third-party apps and sites subject to the terms of those third-party apps and sites and your ongoing compliance with these TOS.
We have no obligation to monitor, verify, correct or remove user content, although we reserve the right to do so in our sole discretion from time to time. We are not liable for any damage resulting from any infringement of copyright, trademark or other proprietary rights in any user content. However, if you believe that any user content infringes copyright rights held by you, you may contact us at the e-mail address or physical mail address below with the following information and signature:
A description of the copyrighted work that you claim has been infringed;
A description of where the material that you claim is infringing is located in the Service;
Your address (including country), 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 the notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
An electronic or physical signature of the individual authorized to act on behalf of the owner of the copyright interest.
The notice should be sent to legal@emerge.io or, if by physical mail, to:
Copyright Notices
Emerge Now c/o Gamma Law
PO Box 136
San Francisco, CA 94104-0136 USA
Third-Party Services
The Service may contain links, login interfaces and other connections to third-party websites and apps, including digital wallets such as MetaMask. Such third-party services are provided solely as a convenience to you, and we are not responsible for, and do not sponsor or endorse the content of third-party services. Use of third-party services may require you to accept additional terms. We are not responsible for examining or evaluating, and do not warrant the offerings of, any third-party services, and you agree to use them at your sole risk.
In particular, you acknowledge and agree that use of a third-party service may cause personally identifying information to be publicly disclosed and/or associated with you. The terms of service, terms of use, privacy policy and any other terms designated by the third-party service will govern your use of that third-party service. If you have any questions, concerns or complaints about a third-party service, please contact the support or contact personnel of that third-party service.
Prohibited Conduct
You will not: (a) interfere with or disrupt the Service or servers or networks, or disobey any requirements, procedures, policies or regulations of networks connected with the Service; (b) interfere with, disrupt or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service; (c) use the Service to violate the law; (d) use the Service to harm minors in any way; (e) use the Service to reveal any personal information about another individual, including any information that may be used to track, contact or impersonate that individual; (f) defraud or mislead Emerge or other users; (g) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (h) use the Service for any commercial purpose, (i) use any other user's account for any purpose, including to circumvent a suspension or ban; (j) cheat or use, develop or distribute automation software programs (“bots”), “macro” software programs or other “cheat utility” software program or applications that are designed to modify the Service experience; or (k) submit false refund requests to Emerge or any mobile application store, such as the Apple App Store or Google Play. Emerge reserves the right to determine what conduct violates these restrictions or is otherwise outside the intentions of these TOS or the Service and to take action as a result, which may include (l) termination of your account and exclusion from further participation in the Service; and/ or (m) resetting and/or modifying any Game progression or benefits and privileges associated with your user account, such as any level or score you have reached in any Game.
Changes, Suspension or Termination of the Service
We reserve the right to add, change, suspend or discontinue the Service, or any aspect or feature of the Service, without notice or liability. You agree that we may alter the Service, which includes changing various terms and changing or eliminating parts of the Service, without contacting you in advance.
You agree that we may temporarily suspend the Service without prior notice. During any such period you may be unable to access any information you have stored on the Service. This may occur, for example, when we are conducting regular or emergency maintenance on the Service.
The license is effective until terminated by you or Emerge. Your rights under these TOS will terminate automatically without notice from Emerge if you violate any terms listed in these TOS regardless of whether the violation is by, on behalf of or through you. Upon termination of the license, you shall cease all use of the Service and delete all copies of the Apps.
You may, as the result of termination, lose your user account and all information and data associated with it. You will not be entitled to any refund, reimbursement or other liability as a result of any termination permitted under these TOS for any reason, whether by you or Emerge. Emerge reserves the right to refuse to keep accounts for or provide access to the Service to anyone.
No Warranty
YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND EMERGE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO EMERGE PARTY WARRANTS THAT THE SERVICE, OUR SERVERS OR E-MAIL SENT FROM US ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EMERGE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR FEATURES PERFORMED OR PROVIDED BY THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EMERGE OR OUR AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF ETHEREUM OR ANY OTHER BLOCKCHAIN NETWORK OR METAMASK OR ANY OTHER DIGITAL WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THE USE OF VIRUSES, PHISHING, BRUTE FORCING OR OTHER MEANS OF ATTACK AGAINST THE APPS, SITES, SERVICE, ANY NETWORK OR WALLET.
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL EMERGE BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF EMERGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Indemnification
You are responsible for damages incurred by Emerge and our affiliates as a result of your use of the Service and agree to defend, indemnify and hold harmless Emerge and our affiliates and other users from and against any and all claims, damages, costs and expenses, including attorneys' fees, arising from or related to your use of the Service and any related breach of these TOS, the Privacy Policy or any other policies posted on the Service from time to time.
Third-Party Beneficiary
You acknowledge and agree that any mobile application store from which you obtained an Emerge App or any Service available via the Emerge App, including Apple and its subsidiaries, is a third-party beneficiary of these TOS, and that, upon your acceptance of the terms and conditions of these TOS, such store, including Apple, will have the right (and will be deemed to have accepted the right) to enforce these TOS against you as a third-party beneficiary thereof.
You acknowledge that, in the event of any user or third-party claim relating to the Service or your possession and use of the Service, the mobile application store from which you obtained the Emerge App or any Service available via the Emerge App (including Apple and Google Play) will not have any responsibility for the investigation, defense, settlement and discharge of any such claim. This includes, but is not limited to: (a) product liability claims; (b) claims of failure to conform to any applicable legal or regulatory requirement; (c) claims arising under consumer protection or similar legislation; and (d) claims of infringement of a third party's intellectual property rights. However, nothing in these TOS limits any liability to you beyond what is permitted by applicable law.
No Support
You agree that we have no obligation to provide support related to the Service. You further agree that the mobile application store from which you obtained an Emerge App or Service available via the Emerge App(s) (including Apple and Google Play) has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. We may provide limited support to users who contact us via the “Communications” section of these TOS below, however, we may discontinue such support at any time.
You agree that the Emerge Apps and Sites may automatically download and install updates, upgrades and additional features that Emerge deems reasonable, beneficial to you and/or reasonably necessary.
Export
You may not use or otherwise export or re-export all or any part of the Service except as authorized by United States law and the laws of the jurisdiction in which the Service was obtained. In particular, but without limitation, no part of the Service may be exported or re-exported (a) into any US-embargoed countries or a country designated by the US government as a “terrorist-supporting” country or (b) to anyone on the US Treasury Department's Specially Designated Nationals List or the US Department of Commerce Denied Persons List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by US law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
US Government Users
The Service and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to US Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Communications
You agree that Emerge may send e-mail to you for the purpose of informing you of upcoming events or offers, notifying you of changes to the Service, or for other purposes we deem appropriate.
Any questions relating to the Service should be sent as follows:
EMERGE NOW, INC.
Disputes
As used in these TOS, “Dispute” means any dispute, claim, demand, action, proceeding, or other controversy between you and Emerge concerning the Service and your or Emerge's obligations and performance under these TOS, Emerge’s Privacy Policy or with respect to the Service, whether based in contract, warranty, tort (including, without limitation, fraud, misrepresentation, fraudulent inducement, concealment, omission, negligence, conversion, trespass, strict liability, and product liability), statute (including, without limitation, consumer protection and unfair competition statutes), regulation, ordinance, or any other legal or equitable basis or theory. “Dispute“ will be given the broadest possible meaning allowable under law. However, “Dispute” does not include a claim to enforce or protect, or concerning the validity of, any of your or Emerge’s (or any of Emerge’s licensors’) intellectual property rights or a claim related to, or arising from, allegations of theft, piracy, or unauthorized use. You acknowledge that Apple is not responsible for addressing any Disputes.
Mediation and Binding Arbitration
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
You may opt out of arbitration within a limited period. Please see “Opt-Out Right” below.
Informal Negotiation. You and Emerge agree to attempt in good faith to resolve any Dispute before commencing arbitration. Unless you and Emerge otherwise agree in writing, the time for informal negotiation will be 60 days from the date on which you or Emerge provides written notice of the Dispute. You and Emerge agree that neither will commence arbitration before the end of the time for informal negotiation.
Binding Arbitration. If informal negotiation is not effective, arbitration shall be conducted before a single arbitrator under the Commercial Rules of the American Arbitration Association (AAA), including the AAA’s Supplementary Procedures for Consumer Related Disputes. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Commercial Rules, Consumer Due Process Protocol and the Supplementary Procedures for Consumer Related Disputes. Unless the claim is for more than US$10,000, the arbitration shall be conducted solely through the submission of documents, by phone or online. The arbitrator shall make a decision in writing, and shall provide a statement of reasons if requested by either party. YOU UNDERSTAND AND ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION, YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. INSTEAD, YOU UNDERSTAND AND AGREE THAT ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE AWARD (DECISION) WILL BE BINDING AND FINAL, EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT. ANY COURT WITH JURISDICTION OVER THE PARTIES MAY ENFORCE THE ARBITRATOR'S AWARD. Nothing herein will prevent Emerge or you from pursuing a claim in small claims court with applicable jurisdiction.
Limitation. You and Emerge agree that any arbitration shall be limited to the Dispute between Emerge and you individually. YOU AND EMERGE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Emerge agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this provision is determined to be unenforceable, then the entirety of this Mediation and Dispute Resolution section shall be null and void.
Opt-Out Right. You can reject and opt-out of this binding arbitration agreement within thirty (30) days of your first use the Service by emailing Emerge at [EMAIL ADDRESS] with your first and last name and the e-mail address associated with your account and stating your intent to opt-out of the binding arbitration. Note that opting out of this arbitration agreement does not affect any other part of these TOS, including the provisions regarding controlling law or in which courts any disputes must be brought.
This section survives termination of these TOS.
Governing Law
The laws of the State of California, USA, excluding its conflicts of law rules, govern these TOS and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. In the event that the agreement above to arbitrate is not effective for any reason, you hereby agree to personal jurisdiction by and venue in the federal and state courts of Los Angeles, California, USA for all disputes in connection with these TOS or any dispute of any sort that might arise between you and us or our affiliates. We and you agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to these TOS or to any dispute or transaction arising out of these TOS.
All Services hereunder are offered by Emerge Now, Inc., which may be reached at [EMAIL ADDRESS], by telephone at [TELEPHONE NUMBER] or by physical mail at c/o Gamma Law, PO Box 136, San Francisco, CA 94104-0136 USA. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 400 R St., Sacramento, California 95814.
Severability
If any of the terms or conditions of these TOS shall be deemed invalid, void or for any reason unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining portion of these TOS.
Delay in Enforcement
No delay or failure to take action under these TOS shall constitute any waiver by us of any provision of these TOS.
Complete Agreement
These TOS, the Privacy Policy, and any other policies posted in the Service from time to time, constitute the complete agreement between you and Emerge with respect to the subject matter hereof and thereof and supersede all prior agreements or representations between you and Emerge.