Terms of Use

Last Updated: February 3, 2022

The EM•POWER team is dedicated to providing information and resources to those interested in exploring embryo donation. EM•POWER with Moxi provides a hub dedicated to embryo donation that includes educational tools, an opportunity for individuals to match, and normalizes the complexities associated with embryo donation. 

By proceeding to access or use the EM•POWER Service (as defined below) you agree to be bound by these Terms of Use. Without limiting the foregoing, to access certain content or features of the EM•POWER Service, we will require you to acknowledge your agreement with these Terms of Use by clicking a box. 

Agreement to Terms

The EM•POWER team is on a mission to increase awareness, empower choice, and foster understanding for all of those involved in the embryo donation process. We ask that you read these Terms of Use carefully as it is a legal agreement between you and EM•POWER Donation, LLC (“EM•POWER,” “we,” “us,” or “our”) that governs your use and purchase of any products or services from EM•POWER, including through our website www.empowerwithmoxi.com (the “Website”) (collectively, the “EM•POWER Service”). Without limiting the foregoing, the "EM•POWER Service" includes your use of third-party platforms such as Teach:able and Circle to access our educational content and community resources and such use is therefore subject to these Terms of Use.  By purchasing products or otherwise accessing the EM•POWER Service, using or accessing any information or services through the EM•POWER Service, or signing up to receive our newsletters and other communications, you signify that you have read, understand and agree to be bound by these Terms of Use – whether or not you are a registered user. If you do not agree to these Terms of Use, please do not use the EM•POWER Service.

You agree to our use of your personal information in accordance with our Privacy Notice, which is available at https://empowerdonation.teachable.com/p/privacy.

Agreement to Third-Party Terms

Certain resources provided through the EM•POWER Service, including certain education and matching resources, are provided through third-party platforms. For example, we currently use Teach:able for education and Circle for community, resources, and matching. To create an account or access certain features on these platforms, these third parties may require you to consent to their terms of use and privacy policies. Please review those carefully before proceeding and keep in mind that we have no control over these (or any other third party) practices or procedures. Teach:able's current privacy policy and terms of use can be found here: https://teachable.com/privacy-policy; https://teachable.com/terms-of-use. Circle's current privacy policy and terms of service can be found here: https://app.circle.so/privacy; https://app.circle.so/terms. 

Arbitration Notice

Unless you opt out of arbitration within 30 days of the date you first agree to these terms by following the opt-out procedure specified in the “Arbitration Agreement and Class Action Waiver” section below, you agree that most disputes between you and EM•POWER will be resolved by binding, individual arbitration, and you are waiving your right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.

Do Not Rely on the EM•POWER Service for Medical, Legal, or Other Professional Advice

The EM•POWER Service provides information and resources for those seeking more information about the embryo donation process and allows both embryo donors and recipients to share information and connect to discover whether they “match.” You may see information on the EM•POWER Service relating to other people’s experience with embryo donation or materials and videos from health care, legal or other professionals, but we are not a health care provider or attorneys, and the EM•POWER Service is not intended to provide medical advice, diagnosis, or treatment, or legal advice. The ability to match with a donor or recipient, information, services and other content provided on and through the EM•POWER Service (including information that may be linked to third-party sites by a healthcare professional) are provided for informational purposes only and are not a substitute for an attorney's, doctor’s, or other healthcare professional’s judgment or advice. We recommend that you discuss your specific, individual health options and circumstances with your doctor, health care professional, and attorney. Decisions about treatment options or embryo-related procedures should be determined by you and your treating doctor and not by the experiences or any of the personal stories shared on our sites or the content we may make available on the EM•POWER Service.

We are not responsible for information provided by health- or legal-information content providers or third-party sites linked to the EM•POWER Service, and we do not make any representations regarding the content, accuracy, or timeliness of any such information.

Provider Directory

We may make available a list of resources, including lawyers, mental health professionals, genetic counselors, doctors, clinics and others (“Providers”) that are familiar with and provide professional support to individuals and families on their embryo donation journey. While we try to ensure that the list is accurate and kept up to date, the directory is subject to change based on information we receive from these Providers and other data sources. The Provider list is provided as a convenience to you and we make no representations associated with the skills or professional qualifications of any Provider.

Changes to the Terms of Use

EM•POWER reserves the right to change these Terms of Use at any time to address changes in our business and the law. If we change the Terms of Use, we’ll let you know either by posting the modified Terms of Use on the Website or by communicating with you directly. Your continued use of the EM•POWER Service will be considered your acceptance to the revised Terms of Use.

Because we constantly improve the EM•POWER Service, we may change or discontinue any part of the EM•POWER Service, at any time and without notice.

Registering for an Account

The EM•POWER Service is only available to United States residents; you must be at least 18 years old to use the EM•POWER Service, and you will be required to create an account(s) to access certain features. When you create an account(s), you agree to provide accurate, current and complete information about yourself and will maintain and update that information promptly if there are any changes. You also understand and acknowledge that the EM•POWER Service does not include any screening, background checks, evaluation of suitability, or perform any other assessment of any kind associated with EM•POWER Service users.

In addition, you agree:

  1. You are a United States resident at least 18 years old.
  2. You are responsible for keeping your password confidential and that you will not allow anyone else to use your username or password to access the EM•POWER Service. You are solely responsible for all activities that occur under your username and password. You agree to immediately notify us at [email protected] of any unauthorized use of your password or username or any other breach of security of which you become aware. 
  3. You may not register with a username or e-mail address that is already being used by someone else or that belongs to another person. We may refuse to accept a username if someone else has already registered with that username or for any other reason at our own discretion.
  4. That we may access, preserve, and disclose your registration information if required to do so by law or in the good faith belief that it is necessary to: 
  • Respond to your requests for customer service;
  • Comply with legal process;
  • Enforce these Terms of Use;
  • Respond to claims that information you have provided violates the rights of others; or
  • Protect the rights, property or personal safety of our users, the public or the EM•POWER Service.
  1. That we may suspend your access to the EM•POWER Service, without prior notice, if we believe you have violated these Terms of Use or for any other reason. You agree that we are not liable to you or any third party for denying you access to any portion of the EM•POWER Service.

If you are a donor seeking to utilize the Moxi Matching group on the Circle platform ("Moxi Matching") to connect to a potential recipient, you further agree that:

1.     You have embryos to donate. We strongly encourage donors to contact their clinic or storage facility to verify the viability of your embryos. Embryos may have been frozen years ago, so an updated embryology report that highlights the number of embryos, embryo quality, and how they were frozen or how many are in each straw, is important to know. Many recipients will request this detail so gathering this information on the front end may prove helpful.

2.     You will not sell embryos. It is illegal to buy or sell embryos. So don’t do it.

3.     You have received consent from the original donor(s) to donate. All genetic contributors and legal owners of embryos must consent to embryo donation or re-donation. That means if you worked with an egg or sperm donor to create the embryos, that original donor must have consented to re-donation. You can review your original contract, ask your clinic, or talk to a family formation lawyer to get further information about this consent status.

4.     You will not post photos of any egg or sperm donor that has not given permission to post their photo.

5.     If you decide not to share identifying information, such as your name or other contact information with an embryo recipient, it is important to understand the limitations associated with this type of arrangement. This includes that, due to social media and various technologies like DNA testing, remaining anonymous cannot be guaranteed. A consensual way to connect in the future may be an important consideration for all parties. 

6.     You will respect the confidentiality of other EM•POWER Service users and the content we provide. You will not disclose to any third party (including media outlets such as television, radio, podcast, social media, websites, magazines, etc.) any content you access within Moxi Matching, including profile information of any other Moxi Matching members or information provided by EM•POWER. In addition, you will not share any information you obtain as a Moxi Matching member about other Moxi Matching members outside the EM●POWER Service such as through email, social media, phone or in-person conversations, without the express authorization of the member or EM•POWER. 

If you are a recipient seeking to use Moxi Matching to connect with a potential donor, you agree that

1.    You will not buy or offer to pay a donor for their embryos and you will not sell any remaining embryos in your possession after a donation agreement. It is illegal to buy or sell embryos. So don’t do it.

2.    You will not seek embryos if you already have donated embryos in your possession. If you are a current recipient holding embryos that you plan or hope to transfer, you may not seek additional embryos. If there is some compelling reason for seeking another set of embryos, we ask that you are transparent with any potential donor(s) about this.

3.    You have medical verification that you (or your partner) are able to carry a pregnancy or intend to work with a qualified gestational carrier. Embryo donors often ask for medical confirmation, such as a doctor’s note, that confirms that the person who plans to carry the pregnancy has been evaluated and medically “cleared.”

4.     You are responsible for the various fees associated with embryo donation. It’s important to establish financial details and expectations with legal counsel.

5.     If you decide not to share identifying information, such as your name or other contact information with an embryo donor, it is important to understand the limitations associated with this type of arrangement. This includes that, due to social media and various technologies like DNA testing, remaining anonymous cannot be guaranteed. A consensual way to connect in the future may be an important consideration for all parties. 

6.     You will respect the confidentiality of other EM•POWER Service users and the content we provide. You will not disclose to any third party (including media outlets such as television, radio, podcasts, social media, websites, magazines, etc.) any content you access within the Moxi Matching, including profile information of any other Moxi Matching member or information provided by EM•POWER. In addition, you will not share any information you obtain as a Moxi Matching member about other Moxi Matching members outside the EM•POWER Service such as through email, social media, phone or in-person conversations, without the express authorization of the member or EM•POWER.

Finally, while we have attempted to create a safe space for people to share donation-related information, it’s important that you are aware that there are some things we simply cannot guarantee.

We cannot guarantee that you will find a match and we DO NOT get involved in the matching process. While our goal is to facilitate the opportunity for potential donors and recipients to communicate directly, we do not get involved in the specific matching process—that is left to you.

We cannot guarantee that donors have the embryos they claim to have. We are not a clinic or a storage facility and we rely on donors to directly share information about their embryos.  

We cannot guarantee that people will hold up to their end of any agreement you might reach. While we strive to provide a safe space for the exchange of information and encourage honesty and transparency, we cannot guarantee that any agreement reached between Moxi Matching members will be upheld. We always recommend legal counsel.

We cannot guarantee a successful outcome to your journey. While we want the very best outcomes for everyone, there is no way for us to guarantee that you will achieve the results you hope for. We cannot guarantee that a healthy child/ren will be born and we cannot guarantee that this will be a positive experience for you.

We cannot guarantee that all recommendations or any guidelines will be followed.  We may offer some general recommendations or guidelines but we cannot guarantee these will be right for everyone, that any Moxi Matching member will follow these recommendations or guidelines or that following recommendations or guidelines will be effective in the embryo donation process.

Intellectual Property

As between you and EM•POWER, all materials included on the EM•POWER Service, such as product images and information, blog posts, videos, graphics, guidebooks, workbooks, articles and reports, and any other written material we make available (“Materials”), are the property of EM•POWER or its licensors. The Materials are protected by copyright, trademark and other intellectual property laws.

EM•POWER with Moxi and Moxi Matching, and other trademarks and logos that we use are trademarks of EM•POWER. Any third-party trademarks that appear within the EM•POWER Service are the property of their respective owners. You may not use any of these trademarks without express written permission from EM•POWER or their owners.

Limited License

So long as you comply with these Terms of Use, you may access the EM•POWER Service and view the Materials for non-commercial purposes. You may download and print a reasonable number of the Materials for your personal use only. You may not use, download, print, copy, distribute, or modify Materials for any other purpose.

Use Restrictions

Your right to use the EM•POWER Service is conditioned on compliance with these Terms of Use and applicable laws. You may not (and you may not permit anyone else to):

  1. Post or submit information about another person or company without authorization to do so.
  2. Interfere with any other user's right to privacy by trying to access or collect information about any user other than in connection with a genuine interest in finding an embryo match.
  3. Interfere with the functioning of the EM•POWER Service or with others’ use of the EM•POWER Service in any way, including:
  4. Posting or transmitting any file or computer code or program (for example, viruses, worms, Trojan horses) that could damage or interfere with the operation of any hardware, software or telecommunications equipment.
  5. Interfering with the functioning of the EM•POWER Service, its servers or networks or circumventing any of the technical limitations of the EM•POWER Service.
  6. Hacking, defacing or modifying any portion of the EM•POWER Service.
  7. Use any manual process or robot, spider, scraper, or other automated means to collect information from the EM•POWER Service or from other users;
  8. Interfere with or prevent access to the EM•POWER Service by other users, or impose an unreasonable service request or usage load on our infrastructure;
  9. Copy, republish, sell or use for commercial purposes any portion of the EM•POWER Service or Materials unless we have provided you with prior written permission. This includes framing or mirroring any part of the EM•POWER Service, systematically downloading and storing any Materials, putting the Materials in a database or republishing it.
  10. Change or remove any copyright, trademark, or other proprietary notices on the Materials or the EM•POWER Service;
  11. Impersonate any person or entity, misrepresent yourself or your entity, or attempt to gain access to another user’s account without the user’s permission;
  12. Use any metatags or any other hidden text incorporating EM•POWER’s name or trademarks in any online site or posting; or
  13. Use the EM•POWER Service for commercial activities such as contests or advertising.

EM•POWER may, in its sole discretion, remove any post or content it considers: (a) false, inaccurate, or misleading; (b) inappropriate or offensive, including content that is harassing, abusive, obscene, or hateful; (c) an infringement on any copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy of any party; (d) promotional of commercial products or illegal activities; or (e) that otherwise violates these Terms of Use. Any user continuing to post such content will have access to the EM•POWER Service suspended at our discretion.

While we may periodically monitor some content areas on the EM•POWER Service for relevance and to ensure these Terms of Use are not violated, we have no obligation to prescreen content and we are not responsible for their content. We encourage you to contact us at [email protected] if you become aware of any inappropriate or illegal content. We reserve the right to remove content for any reason. 

Content, User Feedback and Other Data

Your feedback and participation are critical to our success. The EM•POWER Service allows Moxi Matching members to post messages, stories, images, and other content (“Account Content”) associated with their account. As a Moxi Matching member, you are solely responsible for all Account Content and information and materials, including data and images you post, upload, transmit, or make available, including your profile information, to others using Moxi Matching. Under no circumstances will we be liable in any way for any Account Content posted on or made available through Moxi Matching by you, any other Moxi Matching member, or any third party.

With respect to any content or information you submit or make available to EM•POWER that you create outside your Moxi Matching membership account (such as through social media channels), which may include comments, reviews, pictures, videos and other content (“Member Submissions”), you grant EM•POWER a non-exclusive, perpetual, worldwide, royalty-free, transferable license to use, copy, distribute, publicly display, modify, create derivative works, commercialize and sublicense Member Submissions for any legal purpose.

In the event that you submit or post any creative suggestions, improvements, proposals, or ideas about our products and services (“Feedback”), you agree that Feedback will be treated as non-confidential and you assign all intellectual property rights in Feedback to EM•POWER without any remuneration or attribution to you.

You promise that your Account Content, Member Submissions and Feedback does not and will not violate these Terms of Use or the rights of any third party, including intellectual property and privacy rights and you grant us an unlimited right and license to use, copy, display, perform, distribute, translate, edit, and create derivative works of your Account Content, Member Submissions and Feedback.

Copyright Takedown Policy

EM•POWER respects intellectual property rights. If you believe your copyrighted work has been copied or posted on or through the EM•POWER Service in a way that constitutes copyright infringement, then please contact us at [email protected] and provide the following information:

  1. A description of the copyrighted work that you believe has been infringed;
  2. A description of what the allegedly infringing work is;
  3. A description of the location where the allegedly infringing work is located on the EM•POWER Service;
  4. An address and telephone number where you can be contacted, including an email address if possible;
  5. A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
  6. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright; and
  7. A statement, made under penalty of perjury, that the above information in the notice is accurate and that the signatory is the copyright owner or is authorized to act on behalf of the copyright owner.

You should consult your legal advisor before filing an infringement notice because there can be penalties for false claims under the Digital Millennium Copyright Act.

Communications

By providing your contact information, you agree to receive certain electronic communications from us. You agree that any notice, agreement, disclosure or other communication that we send you electronically will satisfy any legal notice requirements, including that such communications be in writing. All calls, emails and other communications between you and EM•POWER may be recorded. 

Community Membership Fees; Educational Content Fees; Payment Policy

Community Membership Fees. EM•POWER Service users who join our community on the Circle platform are charged $19 per month or $199 per year, based on their billing preferences. Some of our educational content on the Teach:able platform is free after you create an account; other content is available only by paying additional fees. We reserve the right to change our fees at any time.

Electronic Payment Vendors: Payments may be processed through electronic payment vendors. Your relationship with any electronic payment vendor is separate from your relationship with us and is governed by the payment processor’s terms and conditions posted on their website.

Refunds. All purchases are final and we do not refund membership fees. However, if you have a problem with your membership, please contact us by emailing us at [email protected] or completing the form located here.

Termination; Cooperation with Law Enforcement

If we believe you have violated these Terms of Use or any applicable law, we may suspend or terminate your account, block access to or use of the EM•POWER Service, and investigate any suspected violations of these Terms of Use. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

Warranty Disclaimer

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE EM•POWER SERVICE IS AT YOUR SOLE RISK. THE EM•POWER SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EM•POWER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

EM•POWER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT: (i) THE EM•POWER SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE EM•POWER SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE EM•POWER SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE EM•POWER SERVICE WILL MEET YOUR EXPECTATIONS; (v) ANY ERRORS IN THE SOFTWARE OR CODE UNDERLYING THE EM•POWER SERVICE WILL BE CORRECTED; (vi) YOU WILL FIND A MATCH; (vii) THAT DONORS HAVE THE EMBRYOS THEY CLAIM TO HAVE; (viii) YOU WILL HAVE A SUCCESSFUL OUTCOME TO YOUR EMBRYO JOURNEY; OR (ix) ANY MEMBER YOU INTERACT WITH WILL FULLFIL ANY AGREEMENT YOU MAY COME TO.

ANY ARRANGEMENTS YOU MAKE WITH OTHER EM•POWER SERVICE USERSOR MATERIAL SUBMITTED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE EM•POWER SERVICE IS SUBMITTED AND/OR ACCESSED AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EM•POWER OR THROUGH OR FROM USE OF THE EM•POWER SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.

YOU UNDERSTAND AND AGREE THAT WE DO NOT OFFER MEDICAL ADVICE OR DIAGNOSES OR ENGAGE IN THE PRACTICE OF MEDICINE. THE EM•POWER SERVICE IS NOT INTENDED TO BE, AND DOES NOT CONSTITUTE, A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT AND ANY INFORMATION IS OFFERED FOR INFORMATIONAL PURPOSES ONLY. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HEALTHCARE PROVIDER BASED UPON INFORMATION WITHIN THE EM•POWER SERVICE, WHETHER SUCH INFORMATION IS ACCURATE OR INACCURATE.

Limitation of Liability and Damages

YOU EXPRESSLY UNDERSTAND AND AGREE THAT EM•POWER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EM•POWER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE EM•POWER SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE EM•POWER SERVICE; (iii) UNAUTHORIZED ACCESS TO, DISCLOSURE OF, OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE EM•POWER SERVICE; OR (v) ANY OTHER MATTER RELATING TO YOUR USE OF THE EM•POWER SERVICE.

IN NO EVENT WILL EM•POWER’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE EM•POWER SERVICE FOR ANY TYPE OF CLAIM ASSOCIATED WITH USE OF THE EM•POWER SERVICE OR MATERIALS EXCEED THE GREATER OF FEES PAID OR $100.

The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between EM•POWER and you. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Indemnity

You agree to defend and indemnify EM•POWER, its affiliates, licensors and service providers, and their respective members, managers, officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the EM•POWER Service.

Arbitration Agreement and Class Action Waiver

Subject to the exceptions described below, all disputes arising out of or related to these Terms of Use or any aspect of your relationship with EM•POWER, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, will be resolved through final and binding arbitration before a panel of three arbitrators instead of in a court by a judge or jury. Arbitration procedures are simpler and more limited than rules applicable in court.

Arbitration is mandatory for the claims covered under this arbitration agreement. You agree that EM•POWER and you are each waiving the right to trial by a jury, and that any arbitration will take place on an individual basis. You hereby waive the ability to participate in a class action. The parties agree that the panel will have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this arbitration agreement.

You and EM•POWER each retain the right to: (i) bring an individual action in small claims court and (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement or misappropriation of a party’s trade secrets or intellectual property rights.

You will also have the right to litigate any other dispute that would otherwise be subject to this arbitration agreement if you opt out of the arbitration agreement by sending an email to [email protected] within 30 days after the date you first agree to these Terms of Use. If you don’t provide EM•POWER with a timely opt-out notice, this arbitration agreement applies.

The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (currently available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879). The panel will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the panel determines that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to both parties. If the parties are unable to agree on a location, the panel will determine the location. If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, EM•POWER will contribute to your filing and hearing fees as the panel deems necessary to prevent the arbitration from being cost-prohibitive. The panel’s decision will follow the terms of this Agreement (including the Limitation of Liability provision) and will be final and binding. The panel will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the panel. The award rendered by the panel may be confirmed and enforced in any court having jurisdiction.

Governing Law and Jurisdiction

The EM•POWER Service is owned and operated by EM•POWER, which has headquarters in the State of Oregon. The laws of the State of Oregon govern the contract formed by these Terms of Use. You agree that the federal court of the District of Oregon, if it has subject matter jurisdiction, has exclusive jurisdiction to hear and determine any claims or disputes between you and EM•POWER, its affiliates, licensors and service providers, and their respective members, managers, officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns, pertaining directly or indirectly to these Terms of Use, or to any matter arising from your use of the EM•POWER Service excluding those claims subject to the Arbitration Agreement and Class Action Waiver above. If such federal court lacks subject matter jurisdiction, any state court located in Multnomah County, Oregon, shall have exclusive jurisdiction to hear and determine such claims or disputes.

Miscellaneous

·       Survival. The terms that by their nature may survive termination shall remain in effect and survive the termination of these Terms of Use, including without limitation, Content, User Feedback and Other Data, Intellectual Property, Warranty Disclaimer, Indemnity, Limitation of Liabilities and Damages, Arbitration Agreement and Class Action Waiver, Governing Law and Jurisdiction, and Miscellaneous.

·       Assignment. These Terms of Use are personal to you, the user. You may not assign these Terms of Use or any rights and licenses in these Terms of Use to another party. These Terms of Use may be assigned by EM•POWER without restriction.

·       Limitations on Claims. Any cause of action or claim you may have with respect to EM•POWER or the EM•POWER Service (including without limitation the purchase of products and services) must be commenced within one year after the claim or cause of action arises.

·       No Waiver. EM•POWER’s failure to exercise or enforce any right or provision of the Terms of Use will not constitute a waiver of that or any other right or provision. Neither the course of conduct between the parties nor trade practice shall modify any of the terms in these Terms of Use.

·       Entire Agreement. These Terms of Use and the Privacy Notice constitute the entire agreement between you and us and govern your use of the EM•POWER Service. These Terms of Use supersede any prior agreements, communications, representations, or understandings between you and us, including without limitation any prior versions of these Terms of Use.

Contact Information

You may contact us at [email protected] with any questions about the EM•POWER Service.