Last Updated: Monday, May 19, 2025
These Terms and Conditions for Emagine Solutions Technology LLC Subscription Services (these "Terms") are an agreement between you and the applicable service provider described in the table at the bottom of this page (collectively, "Emagine"). Emagine is sometimes referred to in these Terms as "we," "us" or "our." These Terms set forth the terms and conditions governing your subscription to and use of the various subscription services offered by Emagine (the "Subscription Services").
PLEASE READ THESE TERMS CAREFULLY BEFORE USING OR SUBSCRIBING TO ANY SUBSCRIPTION SERVICES. By using or subscribing to any Subscription Services, you signify your agreement to these Terms. If you do not agree to these Terms, you may not use or subscribe to any Subscription Services. You must be at least 18 years of age to subscribe to Subscription Services. If you are under the applicable age of majority, you must have the permission of your parent or guardian to agree to these Terms and use the Subscription Services.
Note that special terms apply to many Subscription Services that Emagine offers. Such special terms ("Service Terms") are posted in connection with the applicable Subscription Service. Any Service Terms are in addition to these Terms and, in the event of a conflict, prevail over these Terms. These Terms are for all our customers, including consumers. A "consumer" is an individual acting in a personal and private capacity only and not for business or commercial purposes.
Emagine respects the information that you provide to us. Please review the applicable Privacy Policy for your Subscription Service, which further explains how Emagine collects and uses the information that we obtain through your use of the Subscription Services. Emagine's Privacy Policies are available at www.Emaginest.com/privacy/.
PLEASE NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH EMAGINE. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
IF YOU ARE A CONSUMER, NOTHING IN THESE TERMS IS INTENDED TO REDUCE YOUR MANDATORY CONSUMER RIGHTS UNDER THE LAWS OF YOUR LOCAL JURISDICTION (YOUR "MANDATORY CONSUMER RIGHTS"). IF THERE IS A CONFLICT BETWEEN YOUR MANDATORY CONSUMER RIGHTS AND THESE TERMS, YOUR MANDATORY CONSUMER RIGHTS UNDER THE LAWS OF YOUR LOCAL JURISDICTION WILL PREVAIL. WE SET OUT CERTAIN MANDATORY CONSUMER RIGHTS AND THE LOCAL JURISDICTION TO WHICH THEY APPLY IN THESE TERMS.
1.1. Emagine offers multiple levels Subscription Services, and in many cases, Emagine offers various types of subscription plans for a particular Subscription Service. The different levels of subscription plans may be referred to as "basic" or "premium" depending on the Subscription Service enrolled in. These subscription plans are referred to in these Terms and any applicable Service Terms as "Subscription Plans." The different levels of Subscription Plans offered may include additional features, services, or benefits. Information regarding the various Subscription Plans offered by Emagine is posted in connection with the applicable Subscription Service.
1.2. Unless otherwise stated in writing by Emagine, the term of your subscription to a Subscription Service starts when you first sign up for that Subscription Service and, subject to Mandatory Consumer Rights, will automatically renew on a monthly or annual basis (depending on your subscription plan) until you cancel your subscription (or disable automatic renewal, if applicable) as provided in Section 2 below.
Please see Section 5.5 below for more information on automatic renewal of Subscription Plans.
1.3. Unless expressly permitted by Emagine in writing or by applicable law, you may not (a) sell, rent, lease, or otherwise charge for the Subscription Services or any information or services associated with or derived from the Subscription Services; (b) reverse engineer, decompile, disassemble, or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of any Subscription Services; (c) modify, translate, or create derivative works based on any element of the Subscription Services or any related documentation; (d) use the Subscription Services for any purpose other than their intended purpose; (e) interfere with or disrupt the integrity or performance of the Subscription Services; or (f) attempt to gain unauthorized access to the Subscription Services, their related systems or networks, or to the content and data uploaded by other users. As between Emagine and you, Emagine is the owner of (i) all right, title and interest in the Subscription Services; (ii) any content, data, images and other materials, made available through the use of the Subscription Services; (iii) all suggestions, ideas and feedback proposed by any user regarding the Subscription Services; and (iv) all modifications and enhancements of any of the foregoing, including all copyright rights, patent rights and other intellectual property rights in each of the foregoing.
1.4. The Subscription Services may be provided to you on behalf of Emagine by certain affiliates and third-party service providers of Emagine. You acknowledge that these affiliates and third-party service providers are entitled to provide the Subscription Services to you, but they shall do so in accordance with these Terms and the applicable Service Terms. If you purchase Subscription Services through a third-party reseller of the Subscription Services, you and we are still bound by these Terms and any applicable Service Terms as though you purchased your subscription directly from Emagine, except as modified by your reseller and agreed to by you.
1.5. Subscriptions for some Subscription Services may be purchased via an in-app transaction facilitated by a third-party app store, such as Google Play or the Apple App Store (an "App Store"). If you purchase your subscription via an App Store, your purchase and subscription are also subject to the applicable App Store's terms and conditions ("App Store Terms"). In the event of any conflict between these Terms and any applicable App Store Terms related to your purchase, cancellation, refunds and payment, the App Store Terms will prevail.
1.6. Emagine reserves the right to update, change or discontinue any Subscription Service (or portion thereof) and to update prices and fees for any Subscription Service at any time as Emagine may determine in its sole and absolute discretion. Except as otherwise provided in these Terms or any applicable Service Terms, any such changes will take effect upon notice to you. Without limiting the foregoing, Emagine also reserves the right to limit or discontinue the availability of the Subscription Services on, or provision of Subscription Services to, any devices on or through which the Subscription Services function at any time as Emagine may determine in its sole and absolute discretion. Except as otherwise provided in these Terms or any applicable Service Terms, any such limitation or discontinuation will take effect upon notice to you.
2.1. To cancel a subscription purchased directly from Emagine, you must sign into your account and follow the instructions for cancellation. To cancel a subscription purchased via an App Store, please follow the cancellation instructions provided by the applicable App Store. If you subscribe to more than one type of Subscription Service from Emagine, you may choose to cancel your subscription to one Subscription Service without canceling your subscription to other Subscription Services.
2.2. If you are unable to sign into your account, you may cancel a subscription purchased directly from Emagine by submitting a request to info@Emaginest.com or by mail to 9040 S. Rita Road, Suite 1270, Tucson, AZ 85747. Your request must include the email address associated with your Emagine account, phone number and the billing address used for your Subscription Plan. Failure to submit the proper information can delay the implementation of your cancellation request. The effective cancellation date of a request can take 2 business days or more after the submission is received.
2.3. Your Subscription Plan will automatically renew each month for successive 1-month terms until you cancel your subscription (or disable automatic renewal, if applicable) as provided in this Section 2. If you take no action, the subscription will automatically cancel after 12 months of service. If you cancel a Subscription Plan, then you will be billed at the time of cancellation for an amount equal to the monthly cost. Additionally, if you cancel your subscription within 120 days (4 months) of signing up for the service, you will be billed the cost of the blood pressure monitor and scale, as applicable to your subscription. No additional charges, other than those provided for in this section, will be billed to you as a result of your cancellation.
2.4. Notwithstanding anything in these Terms to the contrary, Emagine may modify these Terms at any time by updating this posting and notifying you of such modifications via email to the address associated with your account. If you do not agree to the changes in these Terms, then you must cancel your account as described in Section 2.2 above within 30 days of your receipt of Emagine's notice of changes and cease all use of the Subscription Services. Your cancellation request must specify that you are terminating your subscription due to a modification of these Terms. Except as otherwise provided in any applicable App Store Terms and/or App Store policies, if you cancel your subscription as provided in this Section 2.4 due to a modification of these Terms, Emagine will provide you with a pro-rata refund of any amounts already paid by you for the period following your cancellation. Your continued use of the Subscription Services after a modification shall be deemed your agreement to the modification.
2.5. If you are in breach of these Terms or any applicable Service Terms, or if you act in any manner which clearly shows you do not intend to, or are unable to, comply with these Terms or any applicable Service Terms, Emagine may terminate your subscription and discontinue the provision of some or all Subscription Services to you at any time without notice or liability to you (except where prior notice is required under applicable laws, standards and codes). Emagine may also terminate these Terms and any applicable Service Terms if required to do so by any governmental regulatory body and/or law.
2.6. If you cancel your subscription to any Subscription Service or if your subscription or these Terms are terminated by Emagine, you must cease using that Subscription Service immediately upon the effective date of such cancellation or termination.
4.1. Fees for subscriptions purchased directly from Emagine will be billed on a recurring basis by the applicable service provider described in the table at the bottom of this page. Fees for subscriptions purchased via an App Store will be billed on a recurring basis via the payment information provided by you to the applicable App Store.
4.2. Except as otherwise provided in any applicable App Store Terms and/or App Store policies, payments for Subscription Services are nonrefundable (subject to any applicable App Store Terms and any cancellation rights described under Sections 2 and 3 above), and any unused Subscription Services will not be credited and may not be transferred to a third-party account.
4.3. Subject to applicable law, if your bill is not paid within 10 days after the due date, you will be charged a late fee of (i) 1.5% per month or (ii) the maximum legal rate (including under Mandatory Consumer Rights), whichever is lower. This late fee is applicable to the unpaid balance as of the due date and will be billed on subsequent invoices and statements. Emagine may suspend any or all of your Subscription Services in the event of late payment in accordance with any applicable standards or codes (including under Mandatory Consumer Rights). If it does so, Emagine may charge a reactivation fee where permitted by such standards, codes or rights.
4.4. Some Subscription Plans may include an activation fee that will be charged to you when you sign up for the applicable Subscription Service. Changing your address from one country to another country (for example, from the U.S. to Canada) may require service level changes and might incur additional charges on your account. Please see the applicable Service Terms and Section 5.5 below for more details.
4.5. Unless otherwise stated in writing by Emagine, the published price for the Subscription Services does not include all sales, value added, usage, excise, ad valorem, goods and services, harmonized sales, property or any other taxes now or hereafter imposed, directly or indirectly, by any governmental authority or agency. You are required to pay these taxes not already collected for you by Emagine, and these taxes may be added to the final price charged to you in your bill.
4.6. The published price for the Subscription Services also may not include certain applicable surcharges and/or fees associated with the Subscription Services, such as fees associated with the Federal Universal Service Fund for certain Subscription Services in the U.S. These surcharges and/or fees may be added to your bill by Emagine in accordance with all applicable laws, standards and codes.
4.7. Your cell phone service provider and/or internet provider may charge you or your recipients additional fees in relation to any SMS/MMS messages, social connectivity messages and/or other emails and/or data sent by you using certain Subscription Services. Please familiarize yourself with any such applicable plans, services and associated fees before using the Subscription Services and any related Emagine devices. You are responsible for any such applicable charges and fees.
4.8. We may offer promotions from time to time that may affect pricing and that are governed by terms and conditions separate from these Terms and the applicable Service Terms. Any additional and/or different terms will be disclosed to you at the time of sign-up. If there is a conflict between the terms for a promotion and these Terms or any applicable Service Terms, the promotion terms will govern. You agree to the terms of the promotion, including any time limitations, and you agree to provide your Payment Method information for any additional services and to extend the Subscription Services beyond the promotional period. If you use a promotion code for your purchase, you certify that you qualify for the applicable promotion.
This Section 5 applies if you purchase your subscription directly from Emagine. If you purchase your subscription via an App Store, please see the applicable App Store Terms.
5.1. Except as otherwise provided in any applicable Service Terms, use of the Subscription Services requires a current, valid, accepted method of payment, such as a credit card or payment via an account with a third party (a "Payment Method"), and is subject to credit approval by Emagine. Emagine may seek authorization of your Payment Method prior to your first activation/purchase to validate that you can charge the applicable fees to access the Subscription Services. By authorizing Emagine to charge your Payment Method for the fees associated with your subscription, you are authorizing Emagine to automatically continue charging that Payment Method (or any replacement Payment Method if the original Payment Method is renewed, lost, stolen, or changed for any reason by the issuer, and the issuer informs Emagine of the new replacement Payment Method account) for all fees or charges associated with your subscription, including any renewal fees as described below. You authorize the Payment Method issuer to pay any amounts described herein and authorize Emagine, or any other company that acts as a billing agent for Emagine, to continue to attempt to charge all sums described herein to your Payment Method account until such amounts are paid in full.
5.2. If your Payment Method fails due to expiration, insufficient funds or otherwise, Emagine will notify you via an email message sent to your last known email address. If your Payment Method continues to fail, Emagine reserves the right to terminate your subscription or suspend your access to the applicable Subscription Service(s) until you provide a valid Payment Method.
5.3. Emagine's termination or suspension of your subscription due to Payment Method failure will not relieve you of any otherwise applicable fees that may be due. Additionally, Payment Method failure may result in late payment fees and, if you wish to reactivate your subscription, you may be charged a reactivation fee as set out above. Subject to any applicable Mandatory Consumer Rights, until all applicable payments and fees have been paid in full, (a) you will not be able to sign up for any new Subscription Services or activate any new Emagine device for use with the Subscription Services, and (b) no device currently linked to your account may be activated on any other account.
5.4. BY AUTHORIZING EMAGINE TO CHARGE YOUR PAYMENT METHOD, YOU REPRESENT THAT YOU ARE THE AUTHORIZED OWNER OR USER OF YOUR PAYMENT METHOD AND THAT YOU ARE A RESPONSIBLE PARTY FOR THAT PAYMENT METHOD. YOU GRANT EMAGINE ACCESS TO AND THE RIGHT TO (A) REVIEW THE INFORMATION IN, AND YOUR REFERENCES SUBMITTED WHEN YOU SUBSCRIBE, (B) OBTAIN YOUR CREDIT REPORTS AND CREDIT HISTORY (IF THIS IS PERMITTED BY THE LAW OF YOUR LOCAL JURISDICTION), AND/OR (C) OBTAIN ALL OTHER RELEVANT INFORMATION AND MATERIALS THAT EMAGINE REASONABLY BELIEVES IS DESIRABLE FOR THE PURPOSE OF IDENTIFYING YOUR FINANCIAL STATUS AND CREDITWORTHINESS. AS FURTHER DESCRIBED BELOW, YOU AUTHORIZE EMAGINE TO CHARGE YOUR PAYMENT METHOD IN ORDER TO RENEW YOUR SUBSCRIPTION PLAN UP UNTIL SUCH TIME THAT YOU CANCEL THE SUBSCRIPTION SERVICE (OR DISABLE AUTOMATIC RENEWAL, IF APPLICABLE) IN ACCORDANCE WITH SECTION 2 ABOVE.
The basis on which we may access and use any personal information described above is defined and set out in our Privacy Policy at www.Emaginest.com/privacy/.
5.5. IMPORTANT NOTICE - AUTOMATIC RENEWAL: Unless you cancel your subscription (or disable automatic renewal, if applicable) in accordance with Section 2 above prior to the last day of your then-current subscription term, then beginning with the first month following the end of the subscription term for which you initially subscribe, Emagine will automatically renew your subscription and, as authorized by you above and during your registration process, Emagine will charge your Payment Method with the applicable subscription fee and any taxes or other fees applicable to your payment or subscription. Each renewal period will be for the same length as your immediately preceding subscription term. If you do not cancel your subscription (or disable automatic renewal, if applicable) prior to the last day of your then-current subscription term, the subscription will automatically renew and you will not receive a refund. If you do not cancel prior, your subscription will be automatically canceled after 12 months.
5.6. Subject to applicable law, you agree to pay Emagine for all reasonable and actual collection costs, including without limitation the standard fees of any collection agency, reasonable attorney and legal fees, and any other costs incurred by Emagine in exercising any of its rights under these Terms or any applicable Service Terms.
6.1. Use of the Subscription Services requires you to create an account. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the "Registration Data"). You agree not to impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password or other account information, or another person's name, likeness, voice, image or photograph. You also agree to notify us promptly at info@Emaginest.com of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to any Subscription Services.
6.2. We may suspend or terminate your account and your ability to use any Subscription Service or portion thereof for failure to comply with these Terms or any applicable Service Terms.
6.3. You are and will remain solely responsible for any content that you create, transmit or display on or through the Subscription Services ("User Content") and for the consequences of your actions by doing so. You will be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from your User Content. You retain copyright and any other rights you already hold in User Content which you create, transmit or display. To the fullest extent permitted by law, including any Mandatory Consumer Rights, you acknowledge and agree that by creating, posting or displaying any such User Content, you give Emagine a perpetual, irrevocable, worldwide, royalty-free, and nonexclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any such User Content. Furthermore, you agree that this license includes a right for Emagine to make such User Content available to other companies, organizations or individuals as required for the provision of Subscription Services. The basis on which we may access and use any personal information in User Content or other information described in this Section 6.3 is set out in our Privacy Policy at www.Emaginest.com/privacy/.
6.4. Your use of any Emagine website is governed by the terms and conditions of use contained on each such website. Your installation or use of any downloadable software or application provided by Emagine is governed by the end-user license agreement delivered with such software or application.
6.5. The Subscription Services may include applications developed by third parties. Emagine is not responsible for and makes no representations or warranties regarding the content or functionality of these third-party applications or the privacy practices of such third-party developers. If you decide to download and use any third-party applications, then you do so at your own risk and agree to comply with any and all licenses, terms of use and other conditions applicable to the use of such third-party applications.
7.1. Emagine makes no representations or warranties about the accuracy, reliability, completeness, or timeliness of the Subscription Services or about the results to be obtained from using the Subscription Services. Any use of the Subscription Services is at your own risk. Changes are periodically made to Subscription Services and may be made at any time. Some Subscription Services (or portions thereof) may be provided by third parties, and Emagine will not be held responsible for any such Subscription Services (or portions thereof) provided by third parties.
7.2. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, EMAGINE DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL OPERATE ERROR-FREE OR THAT THE SUBSCRIPTION SERVICES ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL GOODS. IF YOUR USE OF THE SUBSCRIPTION SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR LOSS OF PROFITS OR DATA, EMAGINE WILL NOT BE RESPONSIBLE FOR THOSE COSTS.
7.3. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, THE SUBSCRIPTION SERVICES ARE PROVIDED ON AN 'AS IS' BASIS WITHOUT ANY WARRANTIES OF ANY KIND. EMAGINE, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF PROPRIETARY OR THIRD-PARTY RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE.
7.4. Your use of the Subscription Services is at your own risk. If you are dissatisfied with the Subscription Services or with these Terms, your sole remedy is to discontinue use of the Subscription Services. IN NO EVENT WILL EMAGINE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, INCIDENTAL, EXEMPLARY, AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SUBSCRIPTION SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EMAGINE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE SUCH EXCLUSION OR LIMITATION APPLIES TO THE MAXIMUM EXTENT ALLOWABLE UNDER THE APPLICABLE LAW. In New Jersey, this disclaimer of damages does not apply to intentional or reckless acts or gross negligence on the part of Emagine.
8.1. To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless Emagine and its affiliates, licensors, service providers and suppliers and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorney's fees) arising out of or in connection with your unauthorized use of the Subscription Services and any associated software.
Please read this provision carefully. It affects your legal rights.
This Dispute Resolution and Arbitration; Class Action Waiver provision (this "Provision") facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort - including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence - or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below)) that may arise between you and Emagine. Effectively, then, "dispute" is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided to you (such as Emagine's licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against Emagine in the same proceeding.
This Provision provides that all disputes between you and Emagine shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney's fees). You may, however, opt out of this Provision, which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). BOTH YOU AND EMAGINE AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-arbitration Claim Resolution. For all disputes, whether pursued in court or arbitration, you must first give Emagine an opportunity to resolve the dispute, which is accomplished by mailing notice to Emagine at 9040 S. Rita Road, Suite 1270, Tucson, AZ 85747, Attention: Legal Department, which notice should include the following information: (1) your name, (2) your address, (3) a written description of the dispute, and (4) a description of the specific relief you seek. If Emagine does not resolve the dispute within 45 days after receiving your notification, then you may pursue the dispute in arbitration. You may pursue the dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, you or Emagine may choose to pursue a dispute in court and not by arbitration if: (a) the dispute qualifies for initiation in small claims court; or (b) YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the "Opt-out Deadline"). You may opt out of this Provision by emailing notice to info@Emaginest.com, which notice should include the following information: (1) your name; (2) your address; and (3) a clear statement that you do not wish to resolve disputes with Emagine through arbitration. A decision to opt out of this Provision will have no adverse effect on your relationship with Emagine, but any opt-out request received after the Opt-out Deadline will not be valid, and you must pursue your dispute in arbitration or small claims court.
Arbitration Procedures. If this Provision applies and the dispute is not resolved as provided above (Pre-arbitration Claim Resolution), either you or Emagine may initiate arbitration proceedings. The American Arbitration Association ("AAA"), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration and shall in no event be commenced or maintained or heard as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for disputes of less than $75,000 USD (or equivalent amount in your local currency), the AAA's Supplementary Procedures for Consumer-related Disputes will apply; for disputes involving $75,000 USD (or equivalent amount in your local currency) or more, the AAA's Commercial Arbitration Rules will apply. In either instance, the AAA's Optional Rules for Emergency Measures of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Subscription Services and these Terms concern interstate commerce, the U.S. Federal Arbitration Act ("FAA") governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a Party. Such award will be final and binding on the Parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the Parties for purposes of enforcement.
Location of Arbitration. You or Emagine may initiate arbitration in either Pima County, Arizona, USA or the federal judicial district that includes your billing address. In the event that you select the latter, Emagine may transfer the arbitration to Pima County, Arizona, USA so long as Emagine agrees to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.
Payment of Arbitration Fees and Costs. So long as you place a request in writing prior to commencement of the arbitration, Emagine will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys' fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with Emagine as provided in the section above titled "Pre-arbitration Claim Resolution" and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney's fees and costs as determined by the arbitrator.
Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Emagine specifically agree to do so following initiation of the arbitration. If you choose to pursue the dispute in court by opting out of this Provision, as specified above, this Class Action Waiver will not apply to you. Except to the extent that representative claims under California's Private Attorney General Act ("PAGA") are excluded from this Agreement (if PAGA is applicable), neither you, nor any other user of the Subscription Services, can be a class representative, class member or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
No Judge or Jury in Arbitration. Arbitration does not involve a judge or jury. You understand and agree that by accepting this Provision, you and Emagine are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Emagine might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the dispute will be decided by a court.
Continuation. This Provision shall survive the termination of these Terms and any applicable Service Terms and your discontinued use of the Subscription Services. Notwithstanding any provision in this Agreement to the contrary, Emagine agrees that if it makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Emagine to adhere to the language as of the date you entered into this Agreement if a dispute between Emagine and you arises.
9.2. Except as otherwise expressly provided in this Section 9, these Terms and any applicable Service Terms, as well as any dispute or claim arising from these Terms and any applicable Service Terms or related to the use of the Subscription Services, will be construed in accordance with and determined by the Federal Arbitration Act, applicable U.S. federal law, and the laws of the State of Arizona, without respect to its conflict of laws principles. By using or subscribing to the Subscription Services, you agree that, except for disputes subject to arbitration as described above, the exclusive forum for any claims or causes of action arising out of your use of the Subscription Services is the U.S. District Court for the District of Arizona, or any Arizona state court sitting in Pima County. You hereby irrevocably waive, to the fullest extent permitted by law, any objection which you may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
10.1. Access or use of the Subscription Services in locations outside your place of residence is done on your own initiative. You are solely responsible for compliance with all laws applicable to your use of the Subscription Services. Access to the Subscription Services which, in whole or in part, is illegal or penalized is prohibited. You may not use or otherwise export or re-export the Subscription Services except as authorized by U.S. law and the laws of the jurisdiction(s) in which the Subscription Services are obtained. You represent and warrant that you are not (a) located in any 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, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. You also agree that you will not use the Subscription Services for any purposes prohibited by U.S. law. Additionally, you will not export or re-export the Subscription Services (a) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's restricted lists.
10.2. These Terms, together with any applicable Service Terms, website terms and conditions and end-user license agreements, constitute the entire agreement between you and Emagine with respect to the subject matter hereof. Any headings are provided for convenience only.
10.3. The failure of Emagine to exercise or enforce any right under these Terms or any applicable Service Terms shall not constitute a waiver of such right. All rights and remedies granted to Emagine are cumulative and not alternate. If any provision of these Terms or any applicable Service Terms is found invalid or unenforceable, such invalidity or unenforceability shall not affect the remaining terms and conditions of these Terms or any such applicable Service Terms, and the parties shall substitute a valid provision that most nearly approximates the intent and economic effect of the invalid or unenforceable one. Any provisions that expressly or by their nature should survive termination of these Terms and any applicable Service Terms, including payment obligations, disclaimer of warranty, rights of indemnity, limitation of liability, arbitration and class action waiver, shall survive such termination.
10.4. You may not assign these Terms or any applicable Service Terms, or any of your rights or obligations hereunder or thereunder, but Emagine may assign these Terms and any applicable Service Terms and any of its rights and obligations hereunder or thereunder. These Terms and any applicable Service Terms inure to the benefit of and are binding on the parties' respective successors and permitted assigns.
The provider of the Subscription Services is Emagine Solutions Technology LLC, 9040 S. Rita Road, Suite 1270, Tucson, AZ 85747, USA. The provider of the Subscription Services is subject to change upon notice by Emagine. Your billing relationship will be directly with the applicable third-party App Store operator.