Terms of Use

Welcome to the Emerest Connect (the “Site”). These Terms of Use (“Terms” or “Terms of Use”) form a legal agreement between you, the end user of the Site and Emerest Health Population Management LLC d/b/a Emerest Connect (“Emerest, “we,” or “us”), and related websites, applications, and services licensed from Emerest Technology, LLC or its affiliates. These Terms govern your access to and use of the Site including but not limited to the use of interactive features, plug-ins, portals, applications, content, downloads and/or other online services (“Service”). These Terms apply to everyone, including but not limited to visitors, users and others, who wish to access and use the Site. IF YOU WANT TO ACCESS OR USE THE SERVICE, THEN CAREFULLY READ THESE ENTIRE TERMS (INCLUDING ALL LINKS TO DETAILS AND PORTAL TERMS OF USE), AS THEY CONSTITUTE A WRITTEN AGREEMENT BETWEEN YOU AND US AND THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. EACH TIME YOU ACCESS AND/OR USE THE SERVICE, YOU AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS THEN POSTED. THEREFORE, DO NOT USE THE SERVICE IF YOU DO NOT AGREE. IN THE EVENT OF A VIOLATION OF THESE TERMS, WE RESERVE THE RIGHT TO SEEK ALL REMEDIES AVAILABLE BY LAW AND IN EQUITY.

THESE TERMS INCLUDE A BINDING ARBITRATION AGREEMENT WITH A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS. THE ARBITRATION AGREEMENT REQUIRES THAT DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATIONS OR SMALL CLAIMS COURT PROCEEDINGS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.

If you are accessing and using the Site on behalf of an individual or organization or entity (“IOE”), then you are agreeing to these Terms both individually and on behalf of that IOE. You represent and warrant that you have authority to bind the IOE to these Terms. If so, then “you” and “your” refer to both you and your IOE.

A. Scope of License.

Emerest grants you a limited, personal, non-exclusive, non-transferable, revocable right to use the Site, the Service and features provided herein solely in connection with the purposes for which the Site and its features were designed. You agree that all features of the Site may not work well or at all on any particular device or computer.

B. Member Accounts and Logins[SM1] .

Certain features and areas of our Site are available only to patients, caregivers or healthcare professionals with a valid registration and login. You are responsible for creating account login details (“Login Information”) that are unique and secure, including a password that with sufficiently complexity that it cannot be easily guessed, cracked or hacked, and you must keep your Login Information confidential. You may not allow any third party to use your Login Information under any circumstances. Emerest is not liable for any harm caused by or related to the theft, misappropriation, disclosure, or unauthorized use of your Login Information. You must contact Emerest immediately if you become aware of or believe there is or may have been any unauthorized use of your Login Information, or otherwise wish to deactivate your Login Information due to security concerns.

You will at all times provide and maintain true, accurate, current, authorized, and complete information for your account when submitting information or materials on the Emerest Site, to Emerest directly in person and/or through email. If any false, inaccurate, untrue, unauthorized or incomplete information is submitted by you, Emerest reserves the right to terminate your access and use of the Emerest Site.

These Terms permit you to use the Site for your personal, non-commercial use only. You must not use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Site, except as follows: (1) Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials, (2) You may store files that are automatically cached by your web browser for display enhancement purposes, and (3) You may print or download one copy of a reasonable number of pages of the Site for your own personal, non-commercial use and not for further reproduction, publication, or distribution. You must not: (1) Modify copies of any materials from the Site, (2) Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text, or (3) Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this Site.

EMEREST SHALL NOT BE LIABLE TO YOU OR ANYONE FOR HARM; LOSS; THEFT (INCLUDING IDENTITY THEFT); REPUTATIONAL DAMAGE OR EMBARRASSMENT; UNAUTHORIZED USE, MODIFICATION OR DELETION OF YOUR INFORMATION OR DATA; OR ANY OTHER ADVERSE CONSEQUENCES YOU MAY SUFFER AS A RESULT OF YOUR FAILURE TO PROPERLY SELECT AND SECURE YOUR LOGIN INFORMATION (INCLUDING PASSWORD) OR TO LOG OUT OF YOUR ACCOUNT ON PUBLIC OR SHARED DEVICES.

C. Confidentiality

To the extent applicable, you shall safeguard, protect, and hold in confidence all confidential materials made available to you on the Site. You may use the confidential materials solely for your individual informational purposes limited to the conduct of your professional activities and business. You shall not use the confidential materials for any other purpose (including without limitation any purpose competitive with Emerest’s business) or disclose them to any party.

D. Information That You Provide

We value the privacy of your information and comply with applicable privacy laws in processing the information you provide us. Our Site may include functionality that permits you to communicate with us or send us information. For example, you may ask questions, schedule an appointment, or use other interactive features. Whenever you interact with us and provide us information, we may collect that information (including your name, contact information, company name, and technical information provided by your device such as IP address). We may use this information to respond to your request or communication, improve our Site and services, comply with law, create aggregated or statistical data, and for other purposes.

Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You also consent to receive electronic communications from us, and you agree that all notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY EMEREST OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records. You may receive notifications, alerts, emails, text messages, or other types of messages regarding the Service. These may include request confirmations and status, and receipt confirmations, which are not subject to opt-out although we may permit you to choose the manner in which we communicate these to you. We may also email you promotional or marketing materials. You may opt out using the process described in the Privacy Policy, available from [insert link]. The Privacy Policy governs how we use your contact information and may provide you with additional rights and information. California residents should review the California-specific disclosures and information in the Privacy Policy.

You hereby agree that if you provide your mobile phone number, then you agree that this constitutes your consent to receive SMS text messages relating to our relationship with you, including messages about the services we provide, updates on your account, and other matters. If you provide us the phone number or other contact information of any IOE other than yourself, then you declare that you have permission to provide us that information, and you will indemnify and defend Emerest from all claims, liabilities, losses and expenses (including attorney’s fees) that we suffer or incur as a result. You acknowledge that your wireless or mobile carrier may assess extra charges and fees for use of SMS texting. This section only applies to general visitors to our website and it may not apply to you if we have a separate contractual relationship with you or your organization.

E. User Obligations; Restrictions.

You agree to abide by all applicable local, state, national and international laws and regulations with respect to your use of the Site and not interfere with the use and enjoyment of the Site by other users or with Emerest’s operation and management of the Site.

You shall not do any of the following, which are all deemed material breaches of these Terms and of your license to use the Site and Services: (1) distribute or make the Site available over a network where it could be used by multiple devices at the same time; (2) access parts of the Site that you are not authorized to access, or attempt to circumvent restrictions imposed on your use or access of the Site; (3) rent, lease, lend, sell, sublicense, reproduce in whole or part, act as a service bureau, grant rights in the Site, or otherwise redistribute or use our Site or content in a manner that would substitute for the Site and our offerings; (4) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Site, any updates, or any part thereof; (5) intercept, examine or otherwise observe any proprietary communications protocol used by the Site, whether through the use of a network analyzer, packet sniffer or other device; (6) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routing, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or any website, application or service organized or provided by Emerest or existing on any of our network hardware or infrastructure; (7) use the Site to institute, assist, or become involved in any type of attack, including denial of service attacks, upon any party; (8) commit trespass or act in a manner that overburdens the capacity of our networks or servers; (9) use or attempt to use the Site in any manner to harass, abuse, stalk, threaten, defame, harm, or infringe or violate the rights of any other party; (10) provide us sensor data (such as microphone, camera, fitness or other data) that you are not authorized to provide; (11) impersonate any other person or entity when using the Site; or (12) create any apps, extensions or other products or services that use our content without our permission.

Any attempt to do any of the foregoing is a breach of these Terms and will subject you to all remedies available to us, our service providers and our licensors under the law. Without limitation, this may include contract breach, intellectual property infringement, and computer fraud and abuse. If you breach any of these restrictions, you may be subject to prosecution and damages.

F. Third Party Content, Services and Links.

The Site may (1) enable your access to websites, platforms or services (including social media platforms) created or provided by third parties, (2) display or otherwise make available content, data, information, applications, advertisements or materials from third parties, and (3) provide hyperlinks to certain third party web sites (“Third Party Materials”). Third Party Materials are provided solely as a convenience to you and you are subject to any specific terms and conditions under which they are provided. Emerest does not create, endorse, sponsor, recommend, suggest, or have any responsibility for any Third Party Materials or any products or services depicted therein. You acknowledge and agree that Emerest is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, language availability, appropriateness, availability or any other aspect of such Third Party Materials or any statements made therein. Be aware of and read all third party terms and privacy policies whenever you leave the Site. EMEREST DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES REGARDING THIRD PARTY MATERIALS. WE DO NOT ENDORSE OR ASSUME ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY THIRD PARTY MATERIALS.

Although Emerest does not intend for the Site to contain objectionable content, you understand and acknowledge that by using any of the Site, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Site at your sole risk and that Emerest shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.

Emerest shall not be obligated to correct or update the Site or its content, and Emerest shall not be liable for omissions, typographical errors, or out-of-date information which may appear on the Site.

No Medical Advice; Not a Medical App

The Site does not provide any medical advice or any medical services to you or anyone. Any patient treatment to any Site user is wholly separate from the Site. If you require health services, then please contact your normal health care provider directly for professional evaluation and care. The Site is not a medical app, medical service, or medical device. You acknowledge and agree that the Site is NOT intended to diagnose disease or other conditions; cure, mitigate, treat, or prevent any disease; or affect the structure or any function of the human body. You agree that Emerest has no responsibility for patient care, and that you and your medical provider are solely responsible for medical decision-making and care. Emerest is solely providing the Site as a communication tool for your use and is not providing medical care in any way. You further agree that your clinical judgments are based on your own medical expertise and shall not be determined in any way by the Site or any content contained therein. ALL INFORMATION AVAILABLE FROM THE SITE ON MEDICAL OR HEALTH TOPICS IS PROVIDED “AS IS”, WITH ALL FAULTS AND DEFECTS, AND FOR CONVENIENCE ONLY. You agree to seek and obtain any and all diagnosis and treatment information of any medical condition from your selected physician or another member of your care team.

While we hope that the information provided to you through the Site is accurate, we cannot guarantee that there will be no typographical errors, delays, deletions, alterations, or inaccuracies in the information. If you believe any information associated with your account is inaccurate, please contact us so that we may correct the information.

General Health Advice

Any health advice published on the Site is provided solely for informational purposes as a public service to promote health. It is not meant to provide medical advice tailored to you in any way. It does not constitute medical advice and is not a substitute for proper medical care provided by a physician. Emerest assumes no responsibility for any circumstances arising out of the use, misuse, interpretation or application of any information supplied on the Site. Always consult with your health care professional for appropriate examinations, treatment, testing, and care recommendations. Do not rely on information on this site as a tool for self-diagnosis.

Not a Patient Portal

The Site is not a patient portal, even if it contains certain information similar to that which might appear in an electronic medical record (“EMR”). All information that appears on the Site is informational only, and the Site is not intended or designed to be a designated record set or to provide accurate or reliable access to any user’s medical record. You shall not use the Site as a substitute for an EMR or for any treatment purposes. You agree that Emerest shall have no responsibility to make all or any portion of any medical record available through the Site, and you stipulate and agree that it may be technically or otherwise infeasible for Emerest to comply with any such request for a medical record through the Site, which was not designed to hold medical records or EMR data. You acknowledge that information provided through the Site may be materially incomplete and inadequate for your purposes. You agree to contact your provider directly for any medical record access requests, including without limitation for any official purposes or for treatment.

User Discussion Features

Use of any Site features allowing you to participate in any blogs, threaded discussions, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”) are conditioned on your compliance with any acceptable use policy (“AUP”) that Emerest may publish or link on the Site. Emerest reserves all discretion to determine what content violates its AUP, and such content may be removed without notice or liability to you or anyone else. You hereby grant Emerest a nonexclusive, perpetual, irrevocable, worldwide license to reproduce, publicly display, publicly perform, retransmit, and exploit in any other manner your Contributions, for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels. Emerest does not need to give you any further right to inspect or approve uses of such content or to compensate you for any such uses. Emerest owns all right, title, and interest in any compilation, collective work or other derivative work created by Emerest using or incorporating content posted to the Site.

We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Site. You are solely responsible for your Contributions to the Site and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.

We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change or remove any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Site; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions.

Contributions may be viewable by other users of the Site and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warrant that:

The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Site, and other users of the Site to use your Contributions in any manner contemplated by the Site and these Terms.
Subject to the absolute restrictions set forth above on the submission of any personally identifiable or protected health information, you have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Site and these Terms.
Your Contributions do not disclose any information that may compromise your personal safety, including your name, phone number, social security number, health information, or any other personally identifying information.
Your Contributions are not false, inaccurate, or misleading.
Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
Your Contributions are not unlawful, obscene, lewd, lascivious, filthy, violent, threatening, harassing, defamatory, libelous, slanderous, hateful or otherwise objectionable (as determined by us).
Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
Your Contributions are not used to harass or threaten any other person and to promote violence against a specific person, class of people or entity.
Your Contributions do not violate any applicable law, regulation, or rule.
Your Contributions do not violate the privacy or publicity rights of any third party.
Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms, or any applicable law or regulation.

Any use of the Site in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Site and legal action by us.

G. Suspension; Termination.

Except as may be separately agreed in writing between you and Emerest, Emerest reserves the right to change, suspend, remove, disable or terminate access to the Site at any time without notice, for any or no reason, and with no liability or responsibility to you. Emerest may also impose limits on the use of or access to the Site, in any case and without notice or liability. These Terms and your license to use the Site are effective until terminated by you or Emerest. You may terminate your agreement with these Terms and your obligations hereunder by ceasing all use of the Site. If you fail to comply at all times with these Terms, your license to use the Site will terminate automatically and without any notice from Emerest, and your continued use after termination exposes you to legal liability to Emerest, which Emerest may pursue to the fullest extent permitted by law, including the pursuit of money damages or injunctive relief at our discretion. Upon any termination of the license, you shall cease all use of the Site.

H. Internet Disclaimer.

Use of the Internet and the Site is solely at your risk and is subject to all applicable local, state, national and international laws and regulations. Emerest does not guarantee the confidentiality or security of any communication or other material transmitted to or from the Site over the Internet or other communication network.

I. DISCLAIMER OF WARRANTIES.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THE SITE AND INFORMATION CONTAINED THEREIN ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. EMEREST MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO: WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY OR PERFORMANCE, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, CURRENCY OR COMPLETENESS OF INFORMATION, OF NON‑INFRINGEMENT, OF FUNCTIONALITY, OF AVAILABILITY, OF NETWORK CONNECTIVITY AND TRANSMISSION, OF ABILITY TO ACCESS OR USE THE SITE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SITE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR‑FREE, THAT DEFECTS IN THE SITE WILL BE CORRECTED, OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EMEREST OR ITS REPRESENTATIVES SHALL CREATE ANY WARRANTY. Certain jurisdictions do not allow the exclusion of certain implied warranties or limitations on applicable statutory rights of a consumer, so certain of the above exclusions and limitations may not apply to you.

J. LIMITATION OF LIABILITY.

IN NO EVENT SHALL EMEREST, ITS AFFILIATES, SUBSIDIARIES, PARENT ENTITY(IES), DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, PHYSICIANS, STAFF, AGENTS, REPRESENTATIVES, SUPPLIERS, ADVERTISERS, PROMOTIONAL PARTNERS, OR LICENSORS (COLLECTIVELY THE “EMEREST PARTIES”) BE LIABLE FOR PERSONAL INJURY OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR SALES, LOSS OR CORRUPTION OF DATA, LOSS OF USE OF YOUR DEVICE, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SITE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) AND EVEN IF EMEREST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EMEREST SHALL HAVE NO (ZERO) LIABILITY TO YOU IN CONNECTION WITH YOUR USE OF THE SITE. Certain jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so these limitations may not apply to you.

You agree to indemnify, defend and hold harmless Emerest and the Emerest Parties (defined above) from and against any and all claims, actions, proceedings and suits, and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorney’s fees and other dispute resolution expenses) incurred by any Emerest Party arising out of or relating to your use of the Site or your violation or breach of these Terms.

K. Ownership.

The Site and its Contents are licensed and not sold or transferred. Emerest reserves all rights not expressly granted to you by these Terms. The information, text, content, images, videos, data, look and feel, color scheme, logos, and all other material contained on the Site are subject to copyright, patent, trademark and other intangible rights protection. You may not use such material except as part of the Site and in accordance with these Terms. No portion of the Site may be reproduced in any form or by any means, except that you may use sharing features available from within the Site (but only to the extent facilitated by such sharing feature). We do not grant you any other rights to such material.

L. RESOLVING DISPUTES.

If a dispute should arise between you and Emerest, we want to provide you with a resolution that is efficient and cost effective. In our experience, almost all customer service disputes can be resolved to your satisfaction by our customer service team, reachable by emailingcontact@emerest.com.

If your dispute cannot be resolved using our customer service team, these Terms describe how we shall proceed with the resolution of the dispute.

TO THE EXTENT PERMITTED BY APPLICABLE LAWS, YOU AND EMEREST AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. The preceding sentence does not apply to New Jersey residents.

Agreement to Arbitrate Disputes

PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

YOU AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:

WE BOTH AGREE TO ARBITRATE: You and Emerest agree to resolve any claims relating to this Terms through final and binding arbitration, except that, to the extent you have in any manner violated or threatened to violate Emerest’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances Emerest may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Emerest website, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

WHAT IS ARBITRATION: Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.

ARBITRATION PROCEDURES: The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to this Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures. If there is a conflict between JAMS Rules and the rules set forth in this Agreement to Arbitrate, the rules set forth in this Agreement to Arbitrate will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or (212) 751-2700. To initiate arbitration, you or Emerest must do the following things:

(1) Write a demand for Arbitration. The demand must include a description of the claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.

(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee to your local JAMS office or to JAMS, 620 8th Ave Fl 34, New York, NY 10018.

(3) Send one copy of the Demand for Arbitration to Emerest.

Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, except that for claims of less than $1,000, you will be obligated to pay $25 and Emerest will pay all other administrative costs and fees. In addition, for claims of less than $1,000, Emerest will reimburse you for the $25 fee if the arbitrator rules in your favor. Arbitration under this agreement shall be held in New York County, New York, or any other location we mutually agree to, subject to New York law. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

AUTHORITY OF ARBITRATOR: The arbitrator will decide the rights and liabilities, if any, of you and Emerest, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Emerest.

NO CLASS ACTIONS: You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

WAIVER OF JURY TRIAL: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Emerest in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND EMEREST WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.

OPT-OUT OF AGREEMENT TO ARBITRATE: You can decline this agreement to arbitrate by emailing Emerest at [THIS SHOULD BE SPECIFIC EMAIL FOR THIS PURPOSE TO TRACK] and providing the requested information as follows: (1) Your Name; (2) the URL of the Terms and Agreement to Arbitrate Disputes; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in the Terms. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept the Terms by signing up for the Terms.

M. Governing Law.

The laws of the State of New York (other than rules that would apply the law of other states) govern these Terms and your use of the Site. Your use of the Site may also be subject to other local, state, national, or international laws. The exclusive jurisdiction and venue for any actions that you bring against Emerest relating to your use of the Sites shall be the courts located in or having jurisdiction over New York County in the State of New York. YOU AGREE TO WAIVE YOUR RIGHT TO A JURY TRIAL. UNLESS PROHIBITED BY YOUR JURISDICTION, YOU HEREBY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN OR CONSOLIDATE YOUR CLAIMS AGAINST EMEREST WITH THE CLAIMS OF THIRD PARTIES.

N. Amendments.

We may make changes to this Privacy Policy from time to time. The most recent version of the policy will govern our use of your information going forward and will be located at [Privacy Policy Link]. If we make material changes to this policy, we will notify you either by prominently posting a notice of such changes prior to implementing the change or by directly sending you a notification.

O. Legal.

DMCA.

Requests or notifications such as copyright takedown requests under the DMCA (Digital Millennium Copyright Act) or domain-related complaints under UDRP (Uniform Dispute Resolution Policy) must also be notified to us by writing to [Email].

Waiver

No waiver by Emerest of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Emerest to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

California Users and Residents

If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.

Contact

If you have questions or requests regarding these Terms, you may direct them to us by writing to contact@emerest.com. These Terms may not be copied, modified or adapted without our prior written consent.

Last updated: August 1, 2023.