Last Updated: April 6, 2023
Effective Date: April 6, 2023
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITES AS THEY AFFECT YOUR LEGAL RIGHTS. THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT, BRING A CLASS ACTION, AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AS WELL AS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.
BY ACCESSING, VISITING, OR OTHERWISE CONNECTING TO THE SITES, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, YOU MAY NOT USE THE SITES.
If you are an individual accessing or using the Sites on behalf of, or for the benefit of, any corporation, partnership, or other entity with which you are associated (“Organization”), then you are agreeing to these Terms on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Terms. References to “you” and “your” in these Terms will refer to both the individual using the Sites and to any such Organization. By continuing to use the Sites, you agree that your use of the Sites is legally sufficient consideration under these Terms.
We are committed to making Sites accessible for all users, and will continue to take steps necessary to ensure compliance with applicable laws. Please read our Accessibility Policy for more information. If you have difficulty accessing any content, feature, or functionality of a Site, please contact us.
1. Use of the Sites.
a. License. On the condition that you comply with all of your obligations under these Terms, eMerge grants you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access and use the Sites. Any other use of the Sites is strictly prohibited, and a violation of these Terms. eMerge reserves all rights not expressly granted in these Terms, including, without limitation, rights of title, ownership, intellectual property, and all other rights and interests in the Sites, and all related items, including without limitation, all rights in the Sites as a collective work.
b. Changes to the Sites. eMerge may revise these Terms from time to time. eMerge will use reasonable efforts to notify you of such changes. Such efforts might include posting a notice on the Sites, an email to the address we have on file for you, or another method. However, please check the “Last Updated” legend at the top of this page to see when these Terms were last revised. Such revised Terms will be effective upon the “Effective Date” stated above—typically the date of posting. You should revisit these Terms on a regular basis, as revised versions will be binding upon you. You understand and agree that your continued access to or use of the Sites after the effective date of changes to these Terms indicates your acceptance of such revisions.
c. Stoppage of the Sites. eMerge reserves the right to modify, terminate, and suspend the operation of the Sites, as well as the provision of any or all services via the Sites, without notice or liability, at any time and for any or no reason in its sole and absolute discretion.
2. Intellectual Property.
a. Content of the Sites. Except as otherwise noted in these Terms, the Sites and all of the content that is made available in connection with the Sites, including visual interfaces, interactive features, graphics, designs, databases and their data, computer code, products, software and all other elements and components of the Sites (collectively, the “Content”) are owned by eMerge, its licensors, or other providers of such material. eMerge or its licensors also own the copyrights, trademarks, service marks, trade names and other intellectual and proprietary rights throughout the world associated with the Sites and Content, which are protected by copyright, trade dress, patent, trademark and other applicable intellectual property rights and laws.
b. Restrictions. Subject to your compliance with these Terms, we grant you a limited license to access and use the Content for personal, informational, and shopping purposes. No Content from the Sites may be copied, reproduced, republished, performed, displayed, downloaded, posted, transmitted, or distributed in any way without written permission of the rights owner, except that you may download or print one copy of specific Content or software made available for your downloading or printing for your personal, non-commercial home use, subject to your compliance with these Terms and retain the same solely for as long as you continue to be permitted to access the Sites. To use Content under such an exception, you must (1) keep any copyright, trademark, or other proprietary notices intact, (2) use such Content pursuant to any licenses associated with such Content, (3) not copy or post such Content on any networked computer or broadcast it in any media, (4) make no modifications to any such Content, and (5) make no additional representations or warranties relating to such Content. Except as otherwise expressly authorized herein or in writing by us, you agree not to reproduce, modify, rent, lease, perform, display, transmit, loan, sell, distribute, or create derivative works based (in whole or in part) on all or any part of a Site or the Content.
3. Account Security. If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Sites or portions of it using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We reserve the right to take any and all actions we deem necessary or reasonable to maintain the security of the Sites, including terminating your account and/or restricting access to all or part of the Sites for any reason, including, without limitation, for extended periods of inactivity. WE EXPLICITLY DISCLAIM LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION.
4. Prohibited Uses. You agree, represent, and warrant that:
a. you will not violate these Terms or use the Sites to violate the rights of any third party such as copyright or trademark rights;
b. you will use your true legal name and true electronic mail address, and only provide accurate and complete information through the Sites and you are 18 years of age or older and you have all requisite rights and authority to use the Sites and to enter into these Terms;
c. you will not post to or transmit through the Sites any sensitive personally identifiable information about yourself or third parties, such as social security, credit card or bank account numbers, health or medical information, or other information concerning personal matters, unless specifically requested by us;
d. you will copy information from the Sites only as necessary for your personal, non-commercial use to view, save, print, fax or e-mail such information;
e. you will not otherwise reproduce, modify, distribute, display or provide access to the Sites or its content;
f. you will not create derivative works from, decompile, disassemble, reverse engineer, or otherwise attempt to derive the method of operation or any portion of the Sites;
g. you will not upload to or distribute through the Sites any binary code, macros or other executable code, or any file that contains any viruses, trojan horses or other components designed to commandeer, limit or harm the functionality of a computer;
h. if you use the Sites in your capacity as an employee, owner or otherwise as an agent of another person or Organization, you agree on behalf of yourself and such person or Organization, jointly and severally, to be bound by these Terms;
i. you will not record, process or mine information about other users, or access, retrieve or index any portion of the Sites;
j. you will not remove or modify any copyright or other intellectual property notices that appear on the Sites;
k. you will not access or use the Sites in any manner that could damage, disable, overburden, place an unreasonable load on, interfere or attempt to interfere with the proper working of, or impair, the Sites, its computer systems or networks or the hosting of the Sites;
l. you will not attempt to gain unauthorized access to any parts of the Sites or any of the Sites’ computer systems or networks or violate, or attempt to violate, the security of the Sites;
m. you will not use the Sites in any way that is unlawful, harms eMerge’s business, eMerge’s service providers, licensors, representatives or any other user, or breaches any policy or notice on the Sites;
n. you will not impersonate another person or misrepresent your affiliation with another person or entity, such as by using another person’s email to sign up for the services;
o. you will not charge any person for access to any portion of the Sites or any information on the Sites;
p. you will not access the Sites through automated queries (such as by screen or database scraping, spiders, robots, crawlers or any other automated activity with the purpose of obtaining information from the Sites) without eMerge’s prior express written permission or use scripts, macros or other automated means to impact the integrity of any features of the Sites, including any voting, ratings or similar features;
q. you will not post, upload, share, transmit, distribute, facilitate distribution of or otherwise make available to or through the Sites any content that is unlawful, harmful, harassing, defamatory, threatening, intimidating, fraudulent, tortious, vulgar, obscene, hateful, pornographic, spam, discriminatory, violative of privacy or publicity rights, infringing of intellectual property or other proprietary rights, or otherwise objectionable in our sole discretion, including unauthorized or unsolicited advertising;
r. eMerge will not be liable for any losses incurred as a result of a third party’s use of the Sites;
s. you will not engage in “framing” or “mirroring,” or otherwise simulate the appearance or functionality of the Sites; and
t. you will not assist or permit any persons in violating these Terms or other applicable laws or rules governing the use of the Sites.
Linking: You are granted a limited, non-exclusive right to create text hyperlinks to the Sites for informational purposes, provided such links do not portray us in a false, misleading, derogatory or otherwise defamatory manner and provided that the linking Site does not contain any material that is unlawful, harmful, harassing, defamatory, threatening, intimidating, fraudulent, tortious, vulgar, obscene, hateful, pornographic, spam, discriminatory, violative of privacy or publicity rights, infringing of intellectual property or other proprietary rights, or otherwise objectionable in our sole discretion, including unauthorized or unsolicited advertising. Additionally, notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in a Site’s root directory, we grant to the operators of public search engines permission to use spiders to copy Content from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such Content, but not caches or archives of such Content. We may revoke these permissions at any time.
5. Mobile Applications.
Some of our Sites may be mobile or other applications that you can download to your phone, tablet, or other device (“Mobile App”) via a third-party service such as an application store. Your use of the third-party service may be subject to additional terms related to that service from the service provider (“App Store Provider”). WE ARE NOT LIABLE IN ANY WAY FOR, AND MAKE NO REPRESENTATIONS OR WARRANTIES RELATING TO, ANY SUCH THIRD PARTY SERVICE OR ANY CLAIM OR DAMAGE RESULTING FROM YOUR USE OF SUCH THIRD PARTY SERVICE.
You acknowledge that these Terms and your use of a Mobile App is between you and us only, and not with any App Store Provider or its affiliates or subsidiaries. As between us and an App Store Provider, we are solely responsible for the Mobile App and its Content. If anything in these Terms conflicts with any usage rules for the Mobile App from an App Store Provider, such terms from the App Store Provider control (only so far as those terms conflict with these Terms, and then exclusively for your use of the Mobile App). All rights you have to use the Mobile App are for use only on appropriate products (which may require branding from the App Store Provider or other entities) and are non-transferable, except that the Mobile App may be accessed and used by other accounts associated with you via features like Apple’s Family Sharing (or similar features from other App Store Providers) or volume purchasing. We are solely responsible for providing any maintenance and support services for the Mobile App, as specified in these Terms or as required under applicable law. No App Store Provider has any obligation whatsoever to furnish any maintenance and support services for the Mobile App, nor any warranties for the same.
WE DISCLAIM ALL WARRANTIES RELATED TO ANY MOBILE APP. However, in the event that the Mobile App fails to conform to any applicable warranty that we cannot disclaim according to applicable law, you may have the right to notify the App Store Provider, and the App Store Provider may refund the purchase price for the Mobile App. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO APP STORE PROVIDER WILL HAVE ANY OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE MOBILE APP, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY IS OUR RESPONSIBILITY.
We, not the App Store Provider, are responsible for addressing any claims relating to the Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, (iv) claims that the Mobile App infringes a third party’s intellectual property rights as well as the investigation, defense, settlement and discharge of any such intellectual property infringement claim. By using the Mobile App, you represent and warrant that (i) you are 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. You acknowledge and agree that the App Store Provider, and its subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms and your use of the Mobile App, the App Store Provider 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.
6. Descriptions, Testimonials, Opinions.
Sites may contain expert opinions. Information on Sites identified as expert opinion, or accessed from this Site by hyperlink, represents the opinions of these respective experts, which are not necessarily those of the Company.
Some Sites may contain blogs with information about how to use a product or statements about a product’s effectiveness. Some of these statements are not written by us and do not represent our opinion. Other statements may be written by us, but are not a representation or warranty about a product and should not be relied upon as such.
Similarly, Sites may present you with information on events, charitable causes, and the like. This is presented for informational purposes only and should not be considered our endorsement of same.
Descriptions and graphic representations of products on Sites are for informational purposes only and may not completely reflect the current product or its packaging. We reserve the right to change product descriptions at any time, and we are not responsible for variations between a product description and the actual product. Technological issues, such as your device settings, may alter how a product appears on a Site.
WE HEREBY DISCLAIM ANY REPRESENTATION OR WARRANTY CONTAINED IN ANY TESTIMONIAL, BLOG, DESCRIPTION, OR OPINION POSTED ON ANY SITE TO THE MAXIMUM EXTENT ALLOWED BY LAW.
We may provide access to WiFi connections or similar network connections to you (“WiFi”). BY USING WIFI, YOU ARE AGREEING TO THESE TERMS. Your use of WiFi is subject to these Terms and permitted only while you comply with these Terms. We are under no obligation to provide WiFi to you, and may terminate or suspend your access at any time and for any reason. WiFi networks may be open wireless networks and in any case are not intended to be used for transmission of personal, financial, or sensitive information. No network communication is 100% secure, and you should take care when using a generally available WiFi connection. We do not control and are not responsible for data or content that you access or receive via the WiFi. We are not a publisher of third-party content that can be accessed through the Sites and are not responsible for any opinions, advice, statements, services or other information provided by third parties and accessible through the Sites.
We reserve the right to monitor or store any transmission made through the WiFi, but we have no obligation to do so.
WIFI IS PROVIDED ON AN AS-IS BASIS AND WE MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE AVAILABILITY, FUNCTIONALITY, OR SECURITY OF WIFI.
8. Downloads. Sites may allow you to download certain Content, applications, software, and other information or materials. eMerge makes no representation that such download will be error or malware free or fit for a particular purpose. Certain downloads may be subject to a separate agreement either with eMerge or a third party, for example an agreement with a mobile application store.
9. Text Message Marketing.
BY PARTICIPATING IN A TEXT MESSAGE CAMPAIGN YOU ARE AGREEING TO THE DISPUTES, ARBITRATION, AND CLASS ACTION WAIVER OF THESE TERMS AS WELL AS THE REST OF THE TERMS HEREIN, INCLUDING THE LIMITATION OF LIABILITY.
You may be able to sign up to a text message marketing campaign from a Site or through another method provided by us. Text messaging may include one-time or recurring texts related to the following programs (“SMS Program”):
• Marketing, Offers and Coupon Programs
• Informational Services or Alerts
• On-Demand Text Message Reply Services
To opt into a SMS Program, please follow the instructions provided by the specific SMS Program you wish to enroll in. Consent to receive SMS messages is not required as a condition to purchase products or services.
b. Opting Out and Seeking Assistance.
You may opt out of these communications at any time by texting “STOP” in response to the text message you received. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from that particular short code. If you want to join again, sign up as you did the first time and we will start sending SMS messages to you again.
If at any time you forget what keywords are supported, just text “HELP” to the text message you received. After you send the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe.
c. Cost and Frequency of Messages.
Message and data rates may apply. If you have any questions about your text or data plan, it is best to contact your wireless provider.
Unless otherwise noted, we may send multiple, recurring messages depending on the SMS Program you’ve enrolled in and/or terminate the SMS Program or your participation in it at any time with or without notice.
d. Supported Carriers
Participating carriers where we are able to deliver messages include US-based major mobile carriers. Mobile carriers are not liable for delayed or undelivered messages to the customer. If your mobile carrier is not participating, you will not receive a reply to your messages. Some mobile carriers may not support some of the services at the prices offered. Pre-paid users may not be able to participate and need to check with mobile carrier.
11. Third Party Content.
The Sites include links to third-party products, services and websites, as well as materials provided by third parties (collectively, “Third-Party Content”). Neither these Terms nor the Sites endorse or take responsibility for any Third-Party Content. You agree that the Indemnified Parties (defined below) are not responsible for the availability or contents of Third-Party Content. You understand that the Indemnified Parties have no obligation to, and generally do not, approve or monitor materials provided by third parties through the Sites. Your use of Third-Party Content is at your own risk.
YOU AGREE THAT YOUR USE OF THIRD-PARTY CONTENT, WEBSITES, APPLICATIONS, SERVICES AND RESOURCES, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH THIRD PARTIES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
12. Children. Our Sites are not designed to appeal to minors, and we do not knowingly attempt to solicit or receive any information from individuals under the age of majority in their home jurisdiction (typically eighteen (18) years old). Additionally, certain Sites or sections of our Sites, as well as promotions, programs and commerce we may offer on the Sites, may be explicitly limited to people over the age of majority. If you are not old enough to access our Sites or certain sections or features of our Sites, you should not attempt to do so.
13. Disclaimer of Warranties.
WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY OR RELIABILITY OF THE CONTENT AVAILABLE ON A SITE OR ANY OTHER SITES LINKED TO OR FROM A SITE. DOWNLOADING OR OTHERWISE OBTAINING ANY CONTENT THROUGH A SITE IS DONE AT YOUR OWN RISK. THE SITES AND CONTENT ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
14. Limitations of Liability.
WE AND OUR AFFILIATES, SUBSIDIARIES, DIVISIONS AND RELATED COMPANIES AS WELL AS OUR AGENTS, SUPPLIERS, SERVICE PROVIDERS AND RETAILERS (COLLECTIVELY, THE “RELEASEES”) WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OR THE INABILITY TO USE A SITE, A SITE’S CONTENT OR EXTERNAL LINKS, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, OR ANY COMPUTER VIRUS OR FAILURE.
RELEASEES WILL ALSO NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF DATA OR PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RELEASEES ALSO SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ACTS, OMISSIONS OR CONDUCT OF ANY USER OR OTHER THIRD PARTY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
REGARDLESS OF THE PREVIOUS SENTENCES, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF THE ACTUAL TOTAL AMOUNT RECEIVED BY US FROM YOU OR THE LOWEST LIABILITY LIMITATION ALLOWED BY APPLICABLE LAW.
15. Indemnification. You agree to indemnify, defend and hold us, as well as our parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, including the shareholders, officers, directors, employees, agents and representatives of each of them (collectively, the “Indemnified Parties”) harmless from any and all claims, liability, damages and costs (including, but not limited to, reasonable attorneys’ fees) arising out of or relating to: (i) your activities in connection with the Sites; (ii) your violation of any provision of these Terms, including without limitation your breach of any representation or warranty; or (iii) your infringement of any intellectual property or other right of any person or entity; (iv) information you provide to us through the Sites; or (v) violations of applicable laws and regulations. eMerge reserves the right to, but is not obligated to, assume the exclusive defense and control of any matter for which you are required to indemnify the Indemnified Parties, and you agree to cooperate with eMerge’s defense of such claims. eMerge will use reasonable efforts to notify you of any such claim, action or proceeding if and when eMerge becomes aware of it.
17. Disputes, Arbitration and Class Action Waiver.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THESE TERMS. IF, HOWEVER, EITHER THE CLASS ACTION WAIVER OR COORDINATED CLAIMS PROVISION BELOW ARE FOUND INVALID, THEN THE SPECIFIC INVALID PROVISION WILL BE UNENFORCEABLE AND WILL BE SEVERED AND THE REMAINDER OF THE ARBITRATION PROVISIONS WILL REMAIN IN FULL FORCE.
b. No Class Actions. YOU AGREE THAT ANY CLAIMS OR ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION. Further, unless both you and eMerge agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
c. Seeking Arbitration. If you elect to seek arbitration or file a small claim court action, you must first send to us, by certified mail, a written notice of your claim (“Notice”). The Notice to us must be addressed to: 2222 Ponce de Leon Blvd, 3rd Floor, Coral Gables, FL 33134. If we initiate arbitration, we will send a written Notice to an email address you have previously provided to us, if available. We may also use any other means to contact you, including a message in your Account. A Notice, whether sent by you or by us, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and we do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or us may commence an arbitration proceeding or file a claim in small claims court. Arbitration forms can be downloaded from www.jamsadr.com. If you are required to pay a filing fee, after we receive Notice that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000 or the arbitrator determines the claims are frivolous, in which event you will be responsible for filing fees.
d. Hearing. If your claim is for $10,000 USD or less, eMerge agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds $10,000 USD, the right to a hearing will be determined by the JAMS Rules. In the event that the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules.
e. Award: In the event arbitration awards you damages of an amount at least $100 USD greater than eMerge’s last documented settlement offer, eMerge will pay your awarded damages or $2,500 USD, whichever is greater.
f. Injunctive Relief. Notwithstanding the foregoing, you and eMerge both agree that you or eMerge may sue in court to enjoin infringement or other misuse of intellectual property rights or in other scenarios where injunctive relief is appropriate. In the event a court or arbitrator having jurisdiction finds any portion of these Terms unenforceable, that portion shall not be effective, and the remainder of these Terms shall remain effective. No waiver, express or implied, by either party of any breach of or default under these Terms will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
g. Confidentiality. The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
h. Coordinated Proceedings. If 25 or more individuals initiate Notices of dispute with us raising similar claims, and counsel for the individuals bringing the claims are the same or are coordinated for these individuals (“Coordinated Claims”), the claims shall proceed in arbitration in a coordinated proceeding. Counsel for the individuals and counsel for eMerge shall each select five cases to proceed first in arbitration in a bellwether proceeding (“Test Cases”). The remaining cases shall not be filed in arbitration until the first ten have been resolved. If the parties are unable to resolve the remaining cases after the conclusion of the Test Cases, each side may select another five cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties have determined an objective methodology to make an offer to resolve each and every outstanding claim. A court will have authority to enforce this clause and, if necessary, to enjoin the mass filing of arbitration demands against eMerge. Individuals bringing Coordinated Claims shall be responsible for up to $250 of their filing fees or the maximum permissible under the applicable arbitration rules. All applicable statutes of limitations and defenses based upon the passage of time will be tolled while the Coordinated Proceedings specified in this Section are pending. We will take such action, if any, required to effectuate such tolling.
i. Governing Law and Rules. These Terms and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Florida, exclusive of conflict or choice of law rules. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the foregoing with respect to applicable substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to these Terms, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to these Terms, the arbitrator may not award any incidental, indirect, or consequential damages, including damages for lost profits. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of these Terms) with respect to any final award in an arbitration arising out of or related to these Terms.
j. Severance of Arbitration Agreement. If the clauses concerning and describing the procedures and obligations related to Coordinated Claims and Test Case procedures is or becomes invalid or unenforceable, then the remaining entire arbitration agreement and any clauses concerning, relating to, specifying or otherwise describing the arbitration agreement shall be severed from these Terms. However, any duty of confidentiality whether or not such duty is connected with arbitration shall survive such severance.
a. By you. You may terminate these Terms at any time by providing written notice of termination to eMerge at email@example.com or writing to 2222 Ponce de Leon Blvd, 3rd Floor, Coral Gables, FL 33134.
b. By eMerge. If eMerge has reason to suspect that you have breached these Terms, or that any of your information is not authorized, correct, current and complete, eMerge may, in addition to taking or reserving any other remedies against you, terminate your access to the Sites without notice or liability, at any time and for any or no reason in its sole and absolute discretion.
c. Survival. The provisions of these Terms concerning protection of intellectual property rights, authorized use, user submitted content, disclaimers, limitations of liability, indemnity, and disputes, as well as any other provisions that by their nature should survive, shall survive any such termination.
d. Effect of Termination. Upon any such termination, (i) you must destroy all Content obtained from the Sites and all copies thereof; (ii) you will immediately cease all use of and access to the Sites; and (iii) we may delete your account at any time. You agree that if your use of the Sites is terminated pursuant to these Terms, you will not attempt to use the Sites under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefore. Your use of the Sites after termination will be a violation of this Section, which survives any termination. Even after the termination of these Terms or of your account or access to the Sites, any content or Submissions you have posted or submitted may remain on the Sites indefinitely.
19. Terms for Users in Certain Geographic Locations.
a. New Jersey Residents: If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) Disclaimers; (b) Limitations of Liability; (c) Indemnification; and (d) under Disputes, the Arbitration and Class Action Waiver and the governing law provisions (solely to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law). According to N.J.S.A. 56:12-16, you may have additional rights if you are a New Jersey resident and other provisions of these Terms are found to violate an established legal right.
b. California Residents: Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
If you are a California resident, you agree to consciously waive all claims, both known and unknown that may be later discovered and expressly forgo and waive all protections as by California Civil Code Section 1542, which states, “[a] general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” By using the Sites, you agree that these California Civil Code Section 1542 protections no longer apply to you.
c. Users Outside the United States:
By using the Sites, you represent and warrant that you are not (i) the subject of sanctions administered or enforced by the United States (including without limitation the U.S. Department of the Treasury’s Office of Foreign Asset Control), the United Kingdom, the European Union or any other governmental authority (“Sanctions”), (ii) organized or a resident in a country or territory that is the subject of country-wide or territory-wide Sanctions, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (iii) otherwise a party with which eMerge is prohibited from dealing with under applicable laws.
The products referred to on the Sites may only be available in the territory to which the Sites are directed and may not be available in your country. WE MAKE NO REPRESENTATION THAT THE INFORMATION AND CONTENT ON THE SITES, INCLUDING WITHOUT LIMITATION THE INFORMATION AND OTHER MATERIALS PROMOTING THE PRODUCTS IDENTIFIED ON THE SITES, ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS OTHER THAN THE LOCATION FOR WHICH THE SITES ARE DIRECTED. WE DO NOT REPRESENT OR WARRANT THAT THE SITES OR ANY PART THEREOF ARE APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION OTHER THAN THE UNITED STATES. Those who choose to access the Sites do so on their own initiative and at their own risk, and are responsible for complying with all local statutes, orders, regulations, rules, and other laws.
Despite the above, as a consumer you will benefit from any mandatory provisions of the law of the country in which you are a resident. Nothing in these Terms affects your rights as a consumer to rely on such mandatory provisions of local law. The local law of your jurisdiction may entitle you to have a dispute relating to these Terms heard by your local courts. These Terms do not limit any such rights that you have that apply. HOWEVER, BY AGREEING TO THESE TERMS, WE DO NOT CONSENT TO THE JURISDICTION OF ANY COURTS OTHER THAN THOSE REFERENCED IN THESE TERMS AND WE RESERVE THE RIGHT TO CONTEST THAT IT IS NOT SUBJECT TO THE JURISDICTION OF ANY OTHER COURT. We may limit the Sites’ availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion. These Terms, as well as all other documents related to it, including notices and correspondence, will be in the English language only.
THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOU AND SUPERSEDE CONFLICTING TERMS IN THE AGREEMENT IF YOU ARE A RESIDENT OF THE NAMED JURISDICTION OR TO THE EXTENT REQUIRED BY APPLICABLE LAW:
L’acheteur confirme son intention expresse que les présentes Conditions, ainsi que tous les documents connexes, soient rédigés en langue anglaise uniquement, y compris tous les avis et la correspondence.
Quebec Customers: For Quebec customers (or customers from other Canadian provinces where applicable) we will, if required, send at least 30 days before the amendment comes into force, a written notice drawn up clearly and legibly, setting out the new clause only, or the amended clause and the clause as it read formerly, the date of the coming into force of the amendment and the customer’s right to refuse the amendment and rescind or, in the case of a contract involving sequential performance, cancel the contract without cost, penalty or cancellation indemnity by sending us a notice to that effect no later than 30 days after the amendment comes into force, if the amendment entails an increase in the customer’s obligations or a reduction in our obligations.
Dispute Resolution: The arbitration requirements of these Terms will not apply to you if any such provision is unenforceable under the laws of your Canadian province of residence.
Cancellation Rights: Residents of certain provinces may have the right to cancel the provisions of certain purchases as required by local law. We will honor such cancellation rights.
Privacy and Consumer Complaints: Under relevant consumer protection laws, you are entitled to the following consumer rights notice: If you have a question or complaint regarding the Sites, please send an e-mail to firstname.lastname@example.org. You may also contact us by writing to 2222 Ponce de Leon Blvd, 3rd Floor, Coral Gables, FL 33134.
a. No Assignment. These Terms, and any rights or obligations under these Terms, are not assignable, transferable or sublicensable by you except with eMerge’s prior written consent, but may be assigned or transferred by eMerge without restriction. Any attempted assignment by you shall violate these Terms and be void and unenforceable.
b. Beneficiaries. Nothing in these Terms is intended to, nor will be deemed to, confer rights or remedies upon any third party.
c. Amendments; Waivers. eMerge may modify these Terms as provided in Section 1(b) (Revision of these Terms). These Terms may not be modified, amended, or waived, in whole or in part, by you except by a written instrument signed by eMerge. Except as expressly set forth herein, any failure of either party to take action in response to any breach of these Terms by the other party shall not constitute a waiver of such breach or of performance required by the other party; and no waiver of any provision of these Terms shall constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressly provided therein.
e. Entire Agreement. These Terms, including policies linked from or incorporated herein or otherwise found on the Sites, contain the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous representations, promises, agreements and understandings, whether oral or written, between the parties concerning the subject matter hereof. You may from time to time enter into binding legal agreements relating to certain services available through the Sites, which may have terms that are different from those of these Terms. In the event of any inconsistency, the terms of such other agreement shall control with respect to such services.
f. Severability. If any provision of these Terms is deemed to be invalid or unenforceable, the remaining provisions of these Terms shall be valid and binding and of like effect as though such provision were not included.
21. Contact Information. If you have questions about these Terms, or if you have technical questions about the operation of the Sites, please contact us by emailing us at email@example.com or writing to 2222 Ponce de Leon Blvd, 3rd Floor, Coral Gables, FL 33134.