TERMS OF USE
PLEASE READ THE FOLLOWING CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AS AN END USER (AS DEFINED BELOW) (“END USER” OR “YOU”) AND DANTE VIRGIL, INC. D/B/A GROOV (“GROOV” OR “WE”). THIS TERMS OF USE AGREEMENT, TOGETHER WITH ALL AMENDMENTS, AND COLLECTIVELY WITH ALL GROOV RULES AND POLICIES, INCLUDING THE GROOV PRIVACY POLICY, CONSTITUTE THE “AGREEMENT” BETWEEN YOU AND GROOV REGARDING YOUR ACCESS TO AND USE OF THE GROOV WEBSITE (“WEBSITE”), THE GROOV MOBILE APPLICATION (“APP”), AND ALL SERVICES PROVIDED BY US TO YOU THROUGH THE WEBSITE OR APP (“SERVICES”) (COLLECTIVELY, THE WEBSITE, APP, AND SERVICES ARE REFERRED TO AS THE “PLATFORM”). BY ACCESSING OR USING THE PLATFORM, YOU SIGNIFY THAT YOU HAVE READ THE AGREEMENT AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE AGREEMENT.
THIS AGREEMENT COVERS IMPORTANT INFORMATION ABOUT THE PLATFORM. THE AGREEMENT INCLUDES INFORMATION ABOUT FUTURE CHANGES TO THE AGREEMENT, AUTOMATIC RENEWALS, LIMITATIONS OF LIABILITY, AND PRIVACY INFORMATION.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION PROVISION AND CLASS ACTION WAIVER” SECTION BELOW, AND UNLESS YOU OPT-OUT AS SET FORTH IN THAT SAME SECTION, YOU AGREE THAT DISPUTES BETWEEN YOU AND GROOV OR OTHER PARTIES DESCRIBED HEREIN WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AT THE ELECTION OF EITHER PARTY, AND YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS OR TO PARTICIPATE IN A CLASS, PRIVATE ATTORNEY GENERAL, REPRESENTATIVE, OR COLLECTIVE ACTION IN COURT OR IN ARBITRATION.
IF YOU HAVE NOT READ THE AGREEMENT, DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THE AGREEMENT, OR ARE NOT ABLE TO CONSENT TO BE BOUND BY THE AGREEMENT (E.G., IF YOU ARE NOT OLD ENOUGH TO ENTER INTO A BINDING LEGAL CONTRACT), DO NOT USE OUR PLATFORM. IF YOU ARE UNDER THE AGE OF 18, YOU MAY ONLY USE THE PLATFORM WITH THE CONSENT OF YOUR PARENT OR GUARDIAN AND YOU REPRESENT THAT YOU HAVE YOUR PARENT’S OR GUARDIAN’S PERMISSION TO USE THE PLATFORM. PLEASE BE SURE YOUR PARENT OR LEGAL GUARDIAN HAS REVIEWED AND DISCUSSED THESE TERMS WITH YOU. IF YOU ARE A PARENT OR LEGAL GUARDIAN OF A USER UNDER THE AGE OF 18, BY ALLOWING YOUR CHILD TO USE THE PLATFORM, YOU ARE SUBJECT TO THE TERMS OF THIS AGREEMENT.
1. Scope and Acceptance
Anyone who accesses or uses our Platform is an “End User.” The Agreement sets forth your rights and obligations as an End User with respect to your access to and use of the Platform and use of any and all information or data of any kind arising from access to, or use of, the Platform, including, without limitation, any text, graphics, images, art work, sound recordings, audio, video, and software.
We reserve the right, in our sole discretion, to change this Agreement (including the Privacy Policy) from time to time, without prior notice. You are responsible for reviewing the Agreement regularly. Your access to any part of the Platform is deemed to be your acceptance of this Agreement, and any changes thereto.
If you are accessing or using any part of the Platform on behalf of any business, organization, or other entity of any kind, you represent and warrant that you are authorized (a) to accept these terms on its behalf and (b) to bind such business, organization, or entity to the Agreement.
2. Privacy Policy
Please see our Privacy Policy for a detailed description of how we collect, use, and disclose information about our End Users.
3. Description of Platform
4. Our Platform permits an End User to use the App to generate digital scans of the End User’s feet that are submitted to us through the Platform to enable the remote production of a custom-manufactured and fully-personalized shoe insole that the End User can purchase from our store. Our store is hosted on Shopify Inc., which provides us with the online e-commerce platform that allows us to sell our products to you. Pricing, Payments, Limitations, and Problems with Our Products
4.1 Pricing
Prices for our products are subject to change without notice. We will use commercially reasonable efforts to publish accurate pricing information for items for purchase through the Platform. We occasionally run promotions and sales, during which certain items are available at discounted prices for a set period of time. Any and all terms, conditions, and restrictions applicable to such promotions and sales, such as being limited only to new End Users, are within our discretion. The price applicable to the item will be the price at the time you complete your purchase of the item (at checkout). Any price offered for a particular item may also be different when you are logged into your account from the price available to End Users who aren’t registered or logged in, because some of our promotions are available only to new End Users.
4.2 Payments
When you make a payment, you agree to use a valid payment method. You agree to pay the fees for items that you purchase, and you authorize us to charge your debit or credit card or process other means of payment for those fees. We work with payment service providers to offer you the convenient payment methods and to keep your payment information secure. We may update your payment methods using information provided by our payment service providers.
When you make a purchase, you agree not to use an invalid or unauthorized payment method. If your payment method fails and you still get access to the item you purchased, you agree to pay us the corresponding fees within thirty (30) days of notification from us. We reserve the right to disable access to any item for which we have not received adequate payment.
4.3 Limitations
We reserve the right, but are not obligated, to limit the sales of products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer made on this Platform is void where prohibited.
We reserve the right to refuse any order you place with us, including, without limitation, if you seek to customize any product ordered from us with objectionable content in violation of the terms of this Agreement. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors or are in violation of this Agreement.
You agree to provide current, complete, and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
4.4 Problems with Our Products
5. If you are not reasonably satisfied with any product purchased from us through the Platform, please let us know by contacting us within three (3) weeks following delivery of the product at me@groov.me. We will use good-faith efforts on a case-by-case basis, subject to your reasonable cooperation and within our discretion, to try to make right any problem you may have with one of our products that exists at the time the product is delivered to you. Please note that because many of our products are customized to our End Users, we do not as a general matter accept returns of our products for refunds, but if a product you purchased from us is defective upon delivery, as determined in our sole discretion, we will seek to replace the defective product with a non-defective product. Accounts
5.1 Account Creation
In order to use certain features of the Platform, you must register for an account with Groov (“Groov Account”) and provide certain information about yourself as prompted by the registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information at all times. Groov may suspend or terminate your Groov Account as provided in this Agreement below.
5.2 Account Responsibilities
When you create a Groov Account, you will establish or be provided with an End User name and password. You are responsible for maintaining the confidentiality of your Groov Account login information and are fully responsible for all activities that occur under your Groov Account. You agree immediately to notify Groov of any unauthorized use, or suspected unauthorized use, of your Groov Account or any other breach of security. Your access to the Platform, and your account, is solely for your own personal use. You shall not authorize or enable others to use your account. Except with the express authorization of another End User to access and use the Platform and such End User’s behalf (e.g., as a caregiver or other agent of such End User), you shall not use the End User name or password of any other End User at any time, or attempt to impersonate another End User, or any person who is not an End User.
6. App Platforms
6.1 Generally
You acknowledge and agree that the availability of the App is dependent on the third-party app platform from which you received the App, e.g., the Apple App Store® or the Google Play® Store (“App Platform”). You acknowledge that this Agreement is between you and Groov and not with the App Platform provider. Groov, not the App Platform provider, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Platform provider in connection with the App. Each App Platform may have its own terms and conditions to which you must agree before downloading the App from it. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable agreements, terms, and conditions of use/service, and other policies of the applicable App Platform. You acknowledge that the App Platform provider (and its subsidiaries) is a third-party beneficiary of this Agreement and will have the right to enforce this Agreement.
6.2 Accessing and Downloading the App from Apple
The following additional terms apply to the App as accessed through or downloaded from Apple’s App Store® (“App Store-Sourced Mobile App”):
(a) You acknowledge and agree that (i) this Agreement is concluded between you and Groov only, and not Apple, and (ii) Groov, not Apple, is solely responsible for the App Store-Sourced Mobile App and content thereof. The license granted to you in this Agreement to use the App Store-Sourced Mobile App is a non-transferable right to use the App Store-Sourced Mobile App on any Apple Device that you own or control, and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Mobile App.
(c) In the event of any failure of the App Store-Sourced Mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Mobile App, if any, to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Mobile App. As between Groov and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Groov.
(d) You and Groov acknowledge that, as between Groov and Apple, Apple is not responsible for addressing any claims you have or any claims of any third-party relating to the App Store-Sourced Mobile App or your possession and use of the App Store-Sourced Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store-Sourced Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Groov acknowledge that, in the event of any third-party claim that the App Store-Sourced Mobile App or your possession and use of that App Store-Sourced Mobile App infringes that third-party’s intellectual property rights, as between Groov and Apple, Groov, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(f) You and Groov acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store-Sourced Mobile App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store-Sourced Mobile App against you as a third-party beneficiary thereof.
(g) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(h) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store-Sourced Mobile App.
7. Communications
7.1 Text Messaging
You agree that Groov, its affiliated companies, and necessary third-party service providers and those acting on its behalf may send you operational and informational text (SMS) messages about your use of the Platform at any mobile phone number you provide us. Groov may also send marketing or other promotional messages to the extent that you have provided the appropriate opt-in consent. Messages from Groov may include, but are not limited to: operational communications concerning your user account or use of the Platform, updates concerning new and existing features on the Platform, communications concerning promotions run by us or our third-party partners, and news concerning Groov and industry developments. Standard text messaging charges applied by your mobile phone carrier will apply to text messages we send. Your agreement to receive promotional texts is not a condition of any purchase or service offered by Groov. If you change or deactivate the phone number you provide to Groov, you must update your account information to help prevent us from inadvertently communicating with anyone who acquires your old number. You agree that texts, calls, or prerecorded messages may be generated by automatic telephone dialing systems.
7.2 Opt-Out
You may opt out of receiving text messages from Groov at any time by replying STOP to any text message from Groov. If you opt-out of receiving all text messages from Groov, you will not be able to use certain portions of the Platform without agreeing to receive operational text messages. You may continue to receive text messages for a short period while Groov processes your request, and you may also receive text messages confirming the receipt of your opt-out request.
7.3 Push Notifications
When you install our App on your mobile device you may be prompted to agree to receive push notifications, which are messages an app sends you on your mobile device even when the app is not on. You can turn off notifications by adjusting your mobile device’s “settings.”
7.4 Email
You agree that we may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
8. Operation
The specific features and functionality of the Platform are dynamic and may change from time to time. We reserve complete discretion with respect to the operation of the Platform. We also reserve the right to withdraw, suspend, or discontinue any functionality or feature of the Platform at any time.
9. Inaccuracies
We make great efforts to provide accurate information on the Platform, including accurate descriptions and images of products offered in our online store. However, we disclaim—and you release us from any liability regarding—errors, inaccuracies, and omissions of the Platform. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice. Groov makes no guarantees whatsoever as to the completeness, timeliness, correctness, or accuracy of the materials or data available through the Platform. If you believe any portion of the Platform includes an error or inaccuracy, please notify us.
10. Permitted Use
10.1 Ownership
Certain Groov materials provided through the Platform are protected by intellectual property laws, including but not limited to U.S. copyright laws. You expressly acknowledge and agree that the content accessible through the Platform that is not expressly designated as belonging to an End User is the property of Groov and its content providers, and Groov and its content providers retain all right, title, and interest in the content.
10.2 License
Subject to the terms of this Agreement, you are granted a limited, personal, non-exclusive, non-sublicensable, non-assignable, non-transferable, and revocable license to access and use the Platform and related materials solely for your own non-commercial use. Except as expressly provided, all rights are reserved. Nothing contained in this Agreement or on the Platform shall be construed as conferring by implication, estoppel or otherwise any license or right under any patent or trademark of Groov, or any third party.
10.3 Restrictions
Except as expressly permitted by the Agreement, in connection with the use of the Platform, you may not:
(a) alter or modify the Platform, or make any electronic reproduction, adaptation, distribution, performance, or display of the Platform, or any portion thereof, except to the extent required for the limited purpose of reviewing material on the Platform; or
(b) make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform; or
(c) access or use the Platform in order to build a similar or competitive product or service; or
(d) sell, rent, lease, transfer, distribute, broadcast, display, provide, or otherwise assign to any third party any rights to the Platform, or related materials; or
(e) remove or modify any proprietary notice or labels on the Platform, or related materials, including author attribution and copyright notices, or use any of our trademarks as meta-tags on any other website; or
(f) use the Platform for any non-authorized purpose or any illegal purpose; or
(g) copy, modify, erase, or damage any information contained on computer servers used or controlled by Groov or any third party; or
(h) use the Platform to violate any legal right of any third party, including any publicity or privacy right, copyright, or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful, or otherwise objectionable; or
(i) access or use any password-protected, secure, or non-public areas of the Platform, or access data on the Platform not intended for you, except as specifically authorized by Groov; or
(j) impersonate or misrepresent your affiliation with any person or entity or provide us with any false or misleading information; or
(k) use any automated means to access or use the Platform, including scripts, bots, scrapers, data miners, or similar software, or display the Platform, or portions thereof, in things (e.g., framing, scraping, etc.), without our express written permission; or
(l) copy or use any material or content from the Platform, including without limitation any data, text, graphics, or images, for purposes of training, fine-tuning, prompting, or instructing artificial intelligence models or technologies in any manner, including without limitation for purposes of (i) generating text, graphics, images, or any other output; or (ii) supporting machine learning methods used to predict, classify, label, or score inputs into such models or technologies; or
(m) attempt to or actually disrupt, impair, or interfere with the Platform, or any information, data, or materials posted and/or displayed by Groov; or
(n) attempt to probe, scan, or test the vulnerability of the Platform or breach any implemented security or authentication measures, regardless of your motives or intent; or
(o) attempt to interfere with or disrupt access to or use of the Platform by any user, processor, host, or network, including, without limitation, by submitting a virus, worm, Trojan horse, or other malicious code; or
(p) post any content to the Platform (including in any product reviews) or customize any product purchased from us in a way that: (i) includes any profane, obscene, defamatory, discriminatory, threatening, menacing, harassing, or violent content; (ii) depicts or suggests nudity or sexual acts; (iii) promotes hatred, including against members of a protected group under federal, state, or local law (such as, for example, a group defined by race, gender, or national origin); (iv) is objectively shocking or disgusting; (v) depicts or suggests presently occurring illegal activity, including, e.g., illicit drug use or underage drinking; (vi) includes unlicensed proprietary content of a third party, including, e.g., third-party content protected by copyright or trademark for which you do not have a license; (vii) breaches any duty of confidentiality you may have to a third party (e.g., discloses private information about a third party without consent); or (viii) is contrary to the Agreement, including Groov’s rules and policies. We have full discretion with respect to determining whether your conduct violates any of the above restrictions.
11. Third Party Properties Referred to on the Platform
Our Platform may refer to physical venues, geographical sites, websites on the Internet, and/or products or services that are not under the control of or maintained by Groov (“Third Party Properties”). Such Third Party Properties include optional third-party tools that we may make available to you to access and use. Unless expressly stated to the contrary, such references do not constitute an affiliation with or endorsement by Groov of any such Third Party Properties. You acknowledge that Groov is providing any references to such Third Party Properties to you solely as a convenience to you, and you agree that Groov is not responsible for any injury, harm, damages, or negative experience you may encounter by accessing, visiting, or using such Third Party Properties. Groov does not endorse or make any representations about any Third Party Properties. Such Third Party Properties may be subject to additional terms and conditions required by the providers of such Third Party Properties. You should ensure that you are familiar with and approve of any terms and conditions on which such Third Party Properties are provided by the relevant providers. If you access, visit, or use any Third Party Properties referred to on our Platform, you do so at your own risk.
12. Transmissions and Availability of the Platform
You understand that your content (not including credit card information) may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
It is not possible to operate our Platform with 100% guaranteed uptime. Groov will make reasonable efforts to keep our Platform operational. However, certain technical difficulties, routine site maintenance and upgrades, and other events may, from time to time, result in interruptions to or outages of our Platform. You agree that Groov shall not be liable to you or to any third party for any direct or indirect consequence of any modification, suspension, discontinuance of, or interruption to our Platform.
13. Disclaimers
THE PLATFORM AND ALL PRODUCTS ARE PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED, GROOV DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, INCLUDING EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, REGARDING (A) THE PLATFORM; AND (B) ANY PRODUCTS AND SERVICES OFFERED THROUGH THE PLATFORM, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE.
GROOV MAKES NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL OR CONTENT DISPLAYED ON OR OFFERED THROUGH THE PLATFORM IS ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. GROOV ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO AND USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
THE PLATFORM IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE, DISORDER, OR CONDITION, AND GROOV DOES NOT SELL MEDICAL PRODUCTS OR SERVICES OR OFFER MEDICAL ADVICE. ANY INFORMATION ACCESSED THROUGH THE PLATFORM IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY, IS NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND IS NOT INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, OR ADVERSE EFFECTS OF ANY PRODUCTS REFERRED TO OR DISCUSSED THEREIN. THE INFORMATION AVAILABLE THROUGH THE PLATFORM SHOULD NOT BE USED FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. ALWAYS CONSULT YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL DISEASE, DISORDER, OR CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE PLATFORM.
14. Limitation of Liability and Release
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL GROOV OR ANY OF ITS AFFILIATES OR SUPPLIERS (INCLUDING ANY OF ITS OR THEIR PARTNERS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, OR ASSIGNEES) BE LIABLE TO YOU (INCLUDING ANY OF YOUR PARTNERS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, OR ASSIGNEES) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, EQUITY, INTENDED CONDUCT, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), NOR FOR ANY DAMAGES ARISING FROM DELAY, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO DATA, INTERRUPTION IN USE OR AVAILABILITY OF DATA, LOSS OF USE OF MONEY OR USE OF PRODUCTS, LOST PROFITS, REVENUE OR SAVINGS (ACTUAL OR ANTICIPATED), OR OTHER ECONOMIC LOSS ENSUING FROM OR IN CONNECTION WITH THE EXISTENCE, ACCESS TO, USE OF, OR INABILITY TO USE THE PLATFORM OR RELATING TO ANY MATERIALS, INFORMATION, QUALIFICATION, OR RECOMMENDATIONS ON THE PLATFORM, EVEN IF GROOV OR ANY OF ITS AFFILIATES OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Despite the foregoing limitation of liability for damages, if a court or other tribunal of competent jurisdiction decides to award monetary damages to you for any claim or cause of action arising from the same, to the maximum extent permitted by applicable law, the amount of monetary damages for such claim or cause of action shall not exceed two hundred U.S. dollars ($200).
The limitations of this section shall apply to the maximum extent permitted by applicable law. To the extent that any of the foregoing limitations are inconsistent with applicable law, such limitations shall be modified automatically to the minimum extent necessary to be consistent with applicable law.
15. Indemnity
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS GROOV, ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ALL CLAIMS, DEMANDS, LAWSUITS, DAMAGES, LIABILITIES, LOSSES, COSTS, OR EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE FEES AND DISBURSEMENTS OF COUNSEL AND COURT COSTS), JUDGMENTS, SETTLEMENTS, AND PENALTIES OF EVERY KIND ARISING FROM OR RELATING TO ANY VIOLATION OF THIS AGREEMENT AND ANY ACTIVITY RELATED TO YOUR USE OF THE PLATFORM OR THE INFORMATION CONTAINED ON THE PLATFORM.
16. Termination
You agree that Groov may, to the extent feasible, in its sole discretion, and without prior notice, terminate your access to or use of any portion of our Platform at any time and for any reason, with or without cause. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this Agreement for all purposes. You also agree that any violation by you of the Agreement will constitute an unlawful and unfair business practice that will cause irreparable harm to Groov for which monetary damages would be inadequate. You consent to Groov obtaining any injunctive or equitable relief that Groov deems necessary or appropriate in such circumstances, without the need for a bond. These remedies are in addition to any other remedies Groov may have at law or in equity.
17. Intellectual Property Infringement Complaints
If you believe a work protected by a U.S. copyright you own has been posted on the Platform without authorization, you may notify our copyright agent, and provide the following information:
(a) a physical or electronic signature of the person authorized to act on behalf of the copyright owner;
(b) identification of the copyrighted work or works claimed to have been infringed;
(c) a detailed description of the material you claim is infringing, together with information sufficient to enable us to locate it, including the URL or other description of where the infringing material appears;
(d) your name, mailing address, telephone number, and e-mail address;
(e) a statement by you that you believe in good faith that the copyrighted material identified is being used in a manner that is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you that the above information is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright allegedly infringed.
To notify Groov of a claimed copyright infringement, please contact:
5 Schoolhouse Lane
Lake Success, NY 11020
privacy@groov.me
18. General
18.1 Modifications
At any time and in Groov’s sole discretion, we may add, delete, or modify the Agreement. We will use commercially reasonable efforts to publish any revised portion of the Agreement, for example, by publishing the latest version of these terms and conditions here. Should you deem any such addition, deletion, or modification to the Agreement unacceptable, you shall stop accessing and using the Platform. All changes to the Agreement shall be effective immediately.
18.2 Access and Use Where Prohibited
Access to and use of our Platform are unauthorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation this provision.
1.1 Operation of the Platform from the United States of America
By accessing and using the Platform, you acknowledge and agree that Groov controls and operates all parts of the Platform from its offices in the United States of America and that the Platform, and the information contained on the Platform, is intended for use by End Users located in the United States of America. Other countries may have laws, regulatory requirements and medical practices that differ from those in the United State of America. Unless expressly stated to the contrary, Groov makes no representation that the Platform, or the information contained on the Platform, is appropriate or will be available for use in other locations. Unless otherwise explicitly stated, all material and content found on or accessible through the Platform is solely directed to individuals, companies, or other entities located in the United States of America. Groov reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or service to any person or geographic area. Any offer for any feature, product, or service made on or through the Platform is void where prohibited. If you access or use the Platform from outside the United States of America, you are entirely responsible for compliance with applicable local laws and other applicable laws. You may not use any portion of the Platform in violation of applicable export laws and regulations.
If you access the Platform from outside the United States, you acknowledge and agree that your information may be transferred to and maintained on computers and servers located outside of your state, province, country, or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction. Your consent to the Agreement followed by your submission of such information represents your agreement to the transfer of such information to the United States and the collection, use, and disclosure of your information in accordance with United States law and our Privacy Policy.
2. Choice of Law, Arbitration Agreement, Jury Trial Waiver, Class Action Waiver, and Forum Selection
(a) Choice of Law
This Agreement is governed by the laws of the State of Delaware, without regard to conflict of law provisions.
(b) Pre-Arbitration Dispute Resolution
We are always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at privacy@groov.me. If such efforts prove unsuccessful, a party may seek to submit the dispute to arbitration by sending to the other party, by certified mail, a written Notice of Dispute. The Notice of Dispute to us should be sent to our address identified below (“Notice Address”).
(c) Arbitration Agreement and Class Action Waiver
THIS ARBITRATION PROVISION AFFECTS YOUR RIGHTS; PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS OF SERVICE.
Agreement to Arbitrate. Except as otherwise explicitly provided in this Arbitration Provision, Groov, together with its parent companies, wholly or majority-owned subsidiaries, affiliates, commonly-owned companies, successors, assigns, and any of these entities’ employees, officers, directors, and agents and their successors, assigns, affiliates, and service providers (collectively, the “Transaction Parties”) and you can elect to resolve any past, present, or future dispute or claim (“Dispute”) arising from or relating in any way to (i) the use of the Services, (ii) these Terms of Service, or (iii) the relationship between you and any Transaction Party in connection with any of the foregoing that cannot be resolved directly between you and a Transaction Party, by binding arbitration under the Consumer Arbitration Rules (“the Consumer Rules”) of the American Arbitration Association (“AAA”), rather than in court. (Solely for purposes of this Arbitration Provision, the term Transaction Parties also includes any third party providing any goods and/or services in connection with the use of the Website or any of the foregoing on behalf of a Transaction Party, if that third party is named as a defendant along with a Transaction Party in the same proceeding or a related proceeding.)
“Dispute” Defined. Except as otherwise explicitly provided in this Arbitration Provision, “Dispute” broadly includes, without limitation: any claims based in contract, statute, constitution, ordinance, tort, fraud, consumer rights, misrepresentation, equity, or any other legal theory; initial claims, counterclaims, cross-claims, and third-party claims; federal, state, and local claims; and claims which arose before the date of your use of the Services, including, but not limited to, any dispute or claim arising before the date you accessed the Website or agreed to these Terms of Service and any dispute or claim relating to (by way of example and not limitation): (i) the use, denial, or termination of the Services and/or the events leading up thereto; (ii) any disclosure, advertisement, application, solicitation, promotion, or oral or written statement, warranty, or representation made by or on behalf of a Transaction Party; (iii) any product or service provided by or through a Transaction Party or third parties in connection with the use of the Services or the relationship between you and a Transaction Party and any associated fees; (iv) a Transaction Party’s use or failure to protect any personal information you give a Transaction Party in connection with the use of the Services or your relationship with the Transaction Party; (v) enforcement of any and all of the obligations a party may have to another party in connection with the use of the Services or agreement governing the same; or (viii) compliance with applicable laws and/or regulations.
Exceptions to “Dispute.” Notwithstanding any of the foregoing: (i) disputes or controversies about the validity, enforceability, coverage, or scope of this Arbitration Provision or any part thereof are for a court and not an arbitrator to decide; however, disputes or controversies about these Terms of Service or your agreements governing the use of the Services or with Transaction Parties as a whole are for an arbitrator and not a court to decide; (ii) any Disputes seeking to enforce or protect, or concerning the validity of intellectual property rights, will not be subject to binding arbitration under this Arbitration Provision; and (iii) any party may proceed with their individual claims in small claims court (or an equivalent court) if that option is available in the applicable jurisdiction and the amount in controversy falls within the small claims court’s (or the equivalent court’s) jurisdictional limits; but if that action is transferred, removed, or appealed to a different court, arbitration can be elected. Moreover, this Arbitration Provision will not apply to any Dispute that was already pending in court before this Arbitration Provision took effect.
Governing Law. The Federal Arbitration Act (“FAA”), 9 U.S.C. 1 et seq., and federal arbitration law apply to this Arbitration Provision. There is no judge or jury in arbitration and court review of an arbitration award is limited, but an arbitrator can award an individual the same damages and relief as a court in an individual case and must apply and follow applicable substantive law, consistent with the FAA, and the terms of these Terms of Service and any agreement governing the use of the Website. The arbitrator shall apply applicable statutes of limitations and honor privilege rules. Any judgment on the award rendered by the arbitrator will be final, subject to any appeal rights under the FAA, and may be entered in any court of competent jurisdiction. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Arbitration Provision.
JURY TRIAL WAIVER. YOU UNDERSTAND THAT ABSENT YOUR CONSENT TO ARBITRATION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A TRIAL BY JURY.
Arbitration Procedures. Either you or a Transaction Party can initiate arbitration through the AAA or by filing a motion to compel arbitration of claims filed in court. Regardless of who elected arbitration or how arbitration was elected, the party asserting the claim (i.e., the party seeking money damages or other relief from a court or an arbitrator) is responsible for starting the arbitration proceeding. If the AAA cannot serve and we cannot agree on a substitute, a court with jurisdiction shall select the arbitrator, who will apply the AAA rules and the procedures specified in this Arbitration Provision. Any arbitrator must be a practicing attorney with ten or more years of experience practicing law or a retired judge. Any arbitration will be governed by the then-current Consumer Rules, and its Procedures for the Resolution of Disputes through Document Submission (“Document Submission Procedures”). For more information about the AAA and its rules, you may contact the AAA at American Arbitration Association, 120 Broadway, Floor 21, New York, N.Y. 10271, 1-800-778-7879, www.adr.org. The Document Submission Procedures are included in the Consumer Rules. The parties shall pay filing, administrative and arbitrator fees in accordance with the Consumer Rules. If you cannot afford to pay your share of the fees and cannot obtain a waiver from the AAA, you can make a written good faith request for a Transaction Party to pay or advance such fees. Each party will bear the expense of its own attorneys, experts and witnesses, regardless of which party prevails, unless applicable law, these Terms of Service or an applicable agreement gives a party the right to recover such expenses from the other party. If the arbitrator determines that any party’s claim or defense is frivolous or wrongfully intended to oppress or harass the other party, the arbitrator may award sanctions in the form of fees and expenses reasonably incurred by the other party if such sanctions could be imposed under Rule 11 of the Federal Rules of Civil Procedure. The arbitration will be conducted by a single arbitrator solely based on written submissions and will not require any personal appearance by the parties or witnesses unless the arbitrator determines that a telephonic or in-person conference or hearing is necessary based on the request of one or more of the parties. If an in-person hearing is necessary, it will be held in the federal judicial district in which you reside or at another location that is reasonably convenient to all parties.
CLASS ACTION WAIVER. You and the Transaction Parties each agree that if arbitration of a Dispute is elected, the Dispute will be resolved in arbitration (not in court) only on an individual basis and not as a class, collective or other representative action. To the fullest extent permitted under the FAA: (a) no arbitration will be joined or consolidated with any other unless all parties otherwise agree in writing; (b) there is no right or authority for any Dispute to be arbitrated on a class-action, collective action or private attorney general basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. No arbitrator shall have the authority to issue any relief that applies to any person or entity other than Transaction Parties and/or you individually.
Miscellaneous; Conflicts. Even if all parties have opted to litigate a Dispute in court, a party may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in that or any related or unrelated lawsuit (including a claim initially asserted on an individual basis but modified to be asserted on a class, representative, or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Provision. If any portion of this Arbitration Provision is inconsistent with the Consumer Rules, with these Terms of Service, or your agreements governing the use of the Services, or with an arbitration provision in any agreement with a Transaction Party, this Arbitration Provision shall govern.
Survival; Severance. This Arbitration Provision shall survive termination of the Website or these Terms of Service or of any agreement into which you enter with a Transaction Party; and, further, you understand and agree that this Arbitration Provision applies not only to these Terms of Service but also to any subsequent agreement (including without limitation any agreement governing the use of Website or Services) into which you enter with a Transaction Party. If any portion of this Arbitration Provision is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Arbitration Provision, except that: (a) if the Class Action Waiver is limited, voided or found unenforceable with respect to a Dispute that does not seek public injunctive relief and that determination becomes final after all appeals have been exhausted, then this Arbitration Provision (except for this sentence) shall be null and void with respect to such proceeding. The parties acknowledge and agree that under no circumstances will a class action be arbitrated; and (b) if a claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Arbitration Provision prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim and that determination becomes final after all appeals have been exhausted, the claim for public injunctive relief will be determined in court and any individual claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated.
RIGHT TO OPT OUT: If you do not want this Arbitration Provision to apply, you must send us a signed notice within thirty (30) calendar days of the date on which you electronically submit an application for a product or service offered by a Transaction Party through the Website or Services. You must send the notice in writing (and not electronically) to privacy@groov.me You must provide your name, address, telephone number, and state that you “opt out” of the Arbitration Provision. Opting out will not affect the other provisions of these Terms of Service or any other agreement governing Website or with a Transaction Party. If you do not opt out, you will be bound by this Arbitration Provision in these Terms of Service and any other agreement governing a Service or with a Transaction Party. Please note that if you enter an agreement with a Transaction Party that contains a different arbitration provision with a right to opt out, opting out of this Arbitration Provision is not a rejection of the arbitration provision in the other agreement. You will need to separately opt out of the arbitration provision in the other agreement if you do not want it to apply.
3. User Generated Content
You are solely responsible for the content and information (collectively referred to as “User Content”) that you post or upload on the Services. By submitting User Content to the Website or to us otherwise, you automatically grant us the royalty-free, perpetual, irrevocable, non-exclusive right and license, but not the obligation, to use, publish, reproduce, modify, adapt, edit, translate, create derivative works from, incorporate into other works, distribute, sub-license, and otherwise exploit such User Content (in whole or in part) worldwide in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such User Content, without payment to you or to any third parties. With respect to any User Content that you post on this Website or otherwise submit to us, you agree that: (i) Groov and its affiliates have no obligation to you or anyone else concerning such User Content; (ii) such User Content is not confidential; (iii) Groov and its affiliates may use, disclose, distribute, or copy such User Content (including any ideas, concepts, or know-how contained in such User Content) for any purpose and without restriction or obligation to you or to anyone else during the term of the Terms and afterwards; and (iv) such User Content is truthful and do not violate the legal rights of others.
User Content uploaded or otherwise communicated on the Services shall comply with all applicable law and regulations, which you are responsible for knowing and understanding. You are prohibited from posting or otherwise communicating to us, or any other user of the Services any offensive, inaccurate, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal material, or any material that infringes or violates another person’s rights (including intellectual property rights, and rights of privacy and publicity).
You understand and agree that we, without any obligation to do so, may monitor or review any User Content you post, upload or otherwise communicate through the Services or social media. We reserve the right to remove any such User Content, in whole or in part, at our sole discretion, that violates these Terms, is likely to harm our reputation, is deemed inappropriate or otherwise poses a risk of harm to any other person. We reserve the right to terminate Your Account or your access to or ability to participate in the Services at any time and for any reason.
You agree that we may access, preserve and disclose your account and any User Content posted, uploaded, received or otherwise communicated if required to do so by law or with the good faith belief that such access, preservation or disclosure is reasonably necessary to: (i) comply with an enforceable subpoena or other legal process; (ii) enforce these Terms; (iii) respond to claims that any information violates the rights of third parties; (iv) respond to your requests for customer service or allow you to use the Services in the future; or (v) protect the rights, property or personal safety of Groov or its members, employees, agents, affiliates, partners, communities or any other person. Groov is under no obligation to edit, delete or otherwise validate User Content once it has been submitted to us.
4. Miscellaneous
If any part of the Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
No failure or delay in enforcing any provision, exercising any option, or requiring performance, shall be construed to be a waiver of that or any other right in connection with the Agreement.
No action arising out of this Agreement or your access to or use of our Platform, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) and you hereby waive any longer statute of limitations that may be permitted by law.
If Groov does take any legal action against you as a result of your violation of the Agreement, Groov will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Groov. You agree that Groov will not be liable to you or to any third party for termination of your access to, or use of, any of our Platform as a result of any violation of the Agreement or for any reason at all.
You may not assign, by operation of law or otherwise, any rights or delegate any duties under the Agreement to any third party without prior written consent by Groov. Any purported assignment lacking such consent will be void at its inception. Groov may assign all or part of its rights and/or delegate all or part of its duties under the Agreement to any party, at any time, and in its sole discretion, upon notice of assignment by posting such notice on our Platform.
4.1 Contact Information
If you have any questions about our Platform, our products, or this Agreement, please contact us at:
5 Schoolhouse Lane
Lake Success, NY 11020
privacy@groov.me
