Last Updated: December 29, 2020
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
IF YOUR ORTHODONTIST DETERMINES THAT YOU ARE NOT ELIGIBLE TO ACCESS AND USE THE DEVICE OR THE GRIN SERVICES, YOUR RIGHT TO ACCESS AND USE THE GRIN SERVICES WILL BE DEACTIVATED AND YOU SHOULD STOP USING THE DEVICE, THE GRIN SERVICES AND THE APP IMMEDIATELY AND TALK TO YOUR ORTHODONTIST.
IF YOU ARE IN NEED OF IMMEDIATE MEDICAL ATTENTION OR IF YOU HAVE A MEDICAL EMERGENCY, YOU SHOULD CALL 911 OR CONSULT WITH A MEDICAL PROFESSIONAL IMMEDIATELY.
ARBITRATION NOTICE. Except for certain kinds of disputes as described in Section 11, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND GRIN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
THE DEVICE AND THE GRIN SERVICES MAY BE USED BY MINORS UNDER 18. IF YOU ARE UNDER 13, YOUR PARENTS OR GUARDIAN MUST AGREE TO THESE TERMS. IF YOU ARE 13 OR OVER OR UNDER 18, HOWEVER, YOU MUST HAVE YOUR PARENTS’ OR GUARDIAN’S PERMISSION TO AGREE TO THESE TERMS AND OBTAIN THE RIGHT TO ACCESS AND USE THE DEVICE, THE GRIN SERVICES AND THE APP. BY CLICKING “I AGREE,” ACKNOWLEDGING YOUR AGREEMENT, AGREEING VERBALLY OR OTHERWISE ACCESSING OR USING THE DEVICE, THE GRIN SERVICES, THE APP OR ANY OF THE SERVICES, YOU REPRESENT THAT:
• YOU CONFIRM THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH GRIN OR IF YOU ARE 13 OR OVER OR UNDER 18, YOU HAVE HAD YOUR PARENTS OR GUARDIAN REVIEW THESE TERMS AND YOU HAVE YOUR PARENTS’ OR GUARDIAN’S PERMISSION TO AGREE TO THESE TERMS;
• IF YOU ARE SEEKING TO OBTAIN THE RIGHT TO ACCESS AND USE THE DEVICE AND THE GRIN SERVICES FOR A MINOR UNDER 18, THEN YOU REPRESENT THAT (A) YOU ARE THE PARENT OR GUARDIAN OF THAT MINOR AND HAVE THE RIGHT TO AGREE TO THESE TERMS ON BEHALF OF SUCH MINOR AND (B) BY ALLOWING YOUR CHILD TO ACCESS AND USE THE DEVICE AND THE GRIN SERVICES, YOU ARE SUBJECT TO THESE TERMS AND RESPONSIBLE FOR YOUR CHILD’S ACCESS AND USE THE DEVICE, THE GRIN SERVICES AND THE APP;
• HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM ANY OF THE SERVICES;
• YOU WILL COMPLY WITH THESE TERMS AND ALL APPLICABLE LOCAL, STATE, NATIONAL AND INTERNATIONAL LAWS, RULES AND REGULATIONS; AND
• YOU ARE NOT A COMPETITOR OF GRIN AND DO NOT INTEND TO USE THE DEVICE, THE GRIN SERVICES OR THE APP FOR REASONS THAT ARE IN COMPETITION WITH GRIN OR OTHERWISE TO REPLICATE THE DEVICE OR SOME OR ALL OF THE GRIN SERVICES FOR ANY REASON.
Notwithstanding the foregoing, Grin shall comply with all applicable state and federal laws and regulations including the privacy and confidentiality of patient records including but not limited to (i) The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); (ii) the Privacy and Security Standards (45 C.F.R. Parts 160 and 164) and the Standards for Electronic Transactions (45 C.F.R Parts 160 and 162) (collectively, the “Standards”) promulgated or as to be promulgated by the Secretary of Health and Human Services on and after the applicable effective dates specified in the Standards; and (iii) The Health Information Technology Economic and Clinical Health Act of 2009 (the “HITECH Act”). Grin shall not disclose to any third party, except where required or permitted by law and the applicable Business Associate Agreement, any medical record or other information regarding any Patients, and in such case, disclosures shall be made in accordance with the applicable policies of the parties, the applicable Business Associate Agreement and the Standards. All medical information and data concerning specific Patients, including but not limited to the identification of the Patients, derived from the access and use of the Device and the Grin Services shall be treated and maintained in a confidential manner.
(a) Introduction. The Device, the Grin Services and the App are part of Grin’s communication platform to assist eligible Patients’ communicate with their orthodontists and orthodontists’ remote monitoring and telecommunication provided to eligible Patients, as identified by their orthodontists and for whom their orthodontists have authorized Grin to activate the Device and the Grin Services for such eligible Patients to engage with their orthodontists. You have no right to use, and shall not use, the Device or the Grin Services unless you are an eligible Patient as determined by your orthodontist.
(b) Your Orthodontist. It is your responsibility to choose and work with your orthodontist. ACCESS AND USE OF THE DEVICE AND THE GRIN SERVICES REQUIRES YOUR ORTHODONTIST’S PRIOR AUTHORIZATION BEFORE YOU CAN ACCESS AND USE THE DEVICE AND THE GRIN SERVICES. THIS AUTHORIZATION ONLY ALLOWS YOU TO ACCESS AND USE THE DEVICE AND THE GRIN SERVICES UNDER THE CARE AND OVERSIGHT OF YOUR AUTHORING ORTHODONTIST (OR HIS OR HER DESIGNEE). YOUR OTHORDONTIST IS FULLY RESPONSIBLE FOR ALL ORTHODONTIC OR OTHER ADVICE PROVIDED IN CONNECTION WITH THE DEVICE AND THE GRIN SERVICES OR OTHERWISE. HOW YOU AND YOUR ORTHODONTIST CHOOSE TO COMMUNICATE WITH EACH OTHER IS STRICTLY BETWEEN YOU AND YOUR OTHODONTIST. THE GRIN SERVICES ARE JUST ONE WAY OF COMMUNICATING WITH YOUR ORTHODONTIST AND YOU ARE FREE TO USE ANY OTHER MEANS TO CONTACT OR INTERACT WITH YOUR ORTHODONTIST.
(c) Not Medical, Dental or Orthodontic Services. GRIN DOES NOT PROVIDE MEDICAL, DENTAL OR ORTHODONTIC SERVICES. GRIN PROVIDES THE DEVICE AND THE GRIN SERVICES TO FACILITATE AN ORTHODONTIST’S PROVISION OF ORTHODONTIC SERVICES TO HIS OR HER PATIENTS. NOTHING IN THE GRIN SERVICES OR THE APP SHOULD BE INTERPRETED AS MEDICAL, DENTAL OR ORTHODONTIC ADVICE, DIAGNOSIS OR TREATMENT. NOTHING IN THE GRIN SERVICES OR APP IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL, DENTAL OR OTHODONTIC ADVICE, DIAGNOSIS OR TREATMENT. You should always discuss any questions or concerns that you might have about your health or medical condition with your orthodontist, doctor or other healthcare provider.
4. Account; Access.
(a) Account. In order to make use of the Device, the Grin Services and the App, you will have to create an account (“Account”). You agree not to create an Account for anyone else or use the account of another without their permission (other than your minor child). When creating your Account, you will be required to provide us with some information about yourself (and/or your minor child), such as your name, email address or other contact information. You shall not share your Account or access to the Grin Services or the App with any other person except as authorized under these Terms. You agree that the information you provide is accurate and complete information, and that you will keep it accurate and up-to-date at all times. You are solely responsible for the activity that occurs in, and maintaining the confidentiality of, your Account and password. You must notify us immediately of any breach of security or unauthorized use of your Account. As between you and us, you are solely responsible and liable for the activity that occurs in connection with your Account. If you wish to delete your Account, you may send an email request to us at firstname.lastname@example.org.
(b) Access. Subject to your complete and ongoing compliance with these Terms, Grin grants you, solely for your (and/or your minor child’s) personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable: (a) license to install and use one object code copy of the App obtained from a legitimate app store on a mobile device that you own or control solely to access and use the Device and the Grin Services; and (b) the right to and access and use the Device and the Grin Services.
(c) Prevention of Unauthorized Use. Grin reserves the right to exercise whatever lawful means it deems necessary to prevent the unauthorized access or use of the Grin Services or the App or the circumvention of the other Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
(d) Push Notifications. When you install our App on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
(e) Usage Rules. If you are downloading the App from an app store (an “App Store”), please be aware that the App Store may have established usage rules, which also govern your use of the App (“Usage Rules”). We specifically refer to the Usage Rules of certain App Stores below in Section 22 but other Usage Rules may be applicable depending on where the App has been downloaded from. You acknowledge that, prior to downloading the App from an App Store, you have had the opportunity to review and understand, and will comply with, its Usage Rules. The Usage Rules that are applicable to your use of the App are incorporated into these Terms by this reference. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the App. If you are unable to make such a representation, you are prohibited from installing and/or using the App.
(f) Reviews. Orthodontists, Patients and other Users may submit opinions, assessments and reviews about the Device, the Grin Services and the App (“User Review”). We do not check, verify the correctness and reliability, censor or supervise User Reviews, and therefore we do not assert any liability for any and all losses or damages that may be caused as a result from a User Review. You shall be solely responsible for your User Review and the consequences of posting, publishing or uploading them. We have complete discretion whether to publish your User Review and we reserve the right in our sole discretion and without further notice to you, to monitor, censor, edit, remove, delete, and/or remove any User Review. By submitting a User Review, you hereby grant Grin a worldwide, irrevocable, non-exclusive, fully paid, royalty-free, perpetual, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of and display the User Review for any purpose, including without limitation for publishing and redistributing part or all of your User Reviews (and derivative works thereof) in any media formats and through any media channels and to improve the Device, the Grin Services, the App and the other Services without restriction and create other products and services, and you hereby waive any moral rights in your User Reviews or rights to compensation, to the extent permitted by law.
5. Prohibited Conduct.
BY ACCESSING OR USING THE DEVICE, THE GRIN SERICES, THE APP OR ANY OF THE OTHER SERVICES, YOU AGREE NOT TO:
(a) Decipher, decompile, disassemble, reverse engineer, modify, translate, or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the Device, the Grin Services, the App or any of the other Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);
(b) Access or use the Device, the Grin Services or the App for the benefit of anyone other than yourself (and/or your minor child) except in accordance with these Terms, including selling, renting, reselling or distributing, in whole or in part, the Device, the Grin Services or the App;
(c) Copy, disclose, or distribute any data or other information available through the Device, the Grin Services, the App or any of the other Services and/or information, in any medium, including without limitation on the Site, by any automated or non-automated “scraping;”
(d) Interfere with, circumvent or disable any security or other technological features or measures of any of the Grin Services or the App or attempt to gain unauthorized access to the Grin Services or the App or its related systems or networks;
(e) Use bots or other automated methods to: access the Grin Services, the App or any of the other Services, download any information, send or redirect messages or perform any other activities through the Grin Services, the App or any of the other Services;
(f) Take any action that Grin determines, in its sole discretion, imposes or may impose, an unreasonable or disproportionately large load on its infrastructure;
(g) Upload invalid data, viruses, worms or other software agents through the Grin Services, the App or any of the other Services;
(i) Impersonate any person or entity, use a fictitious name, or misrepresent your affiliation with a person or entity;
(j) Use the Device, the Grin Services, the App or any of the other Services for any unlawful or inappropriate activities; or
(k) Use any of the Services for any commercial solicitation purposes.
6. Device Use and Restrictions.
(a) You may only use the Device for use in connection with the Grin Services in accordance with instructions provided by your orthodontist and/or Grin.
(b) You will have no rights with respect to the Device except as expressly set forth herein. All rights relating to the Device that are not expressly granted hereunder to you are reserved and retained by Grin.
7. Intellectual Property Rights.
(a) Ownership. You acknowledge and agree that all right, title and interest in (a) the underlying technology of the Device, (b) the Grin Services, (c) the App, (d) the Site and (e) all intellectual property rights evidenced by, embodied in and/or related to the Device, the Grin Services, the App and the other Services, including any copyrights, patents and trade secrets, are and shall remain the exclusive property of Grin and/or its third-party licensors. Grin shall also own all right, title and interest in any anonymous performance results generated under or by the Device and the Grin Services. We reserve all rights not expressly granted hereunder in and to the Device, the Grin Services and the App.
(b) Content and Marks. You acknowledge and agree that: (i) the content on the Grin Services, the App, the Site and/or any of the other Services, including without limitation, the text, descriptions, software, applications, source code, object code, graphics, photos, sounds, videos, interactive features, and services (collectively, the “Materials”), and (ii) the trademarks, service marks and logos contained therein (“Marks,” together with the Materials, the “Content”), are the property of Grin and/or its third-party licensors and may be protected by applicable copyright or other intellectual property laws and treaties. “Get-Grin”, “Grin”, the Grin logo, and other marks are Marks of Grin or its affiliates. All other trademarks, service marks, and logos used on the Device, the Grin Services, the App or any of the other Services are the trademarks, service marks, or logos of their respective owners. We reserve all rights not expressly granted in and to the Content.
(c) Use of Content. The Content is provided to you for your information and personal use only, and may not be used, modified, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent. If you download or print a copy of the Content you must retain all copyright and other proprietary notices contained therein.
(d) Feedback. If you choose to provide input, suggestions, comments, feedback, improvement requests or other recommendations regarding the Device, the Grin Services, the App or any of the other Services (collectively, “Feedback”), then you hereby grant Grin a worldwide, irrevocable, non-exclusive, fully paid, royalty-free, perpetual, sublicensable and transferable license to use or otherwise exploit the Feedback in any manner and for any purpose without restriction. You should not submit any Feedback to us that you do not wish to license to us as stated above. We have no obligation (a) to maintain any Feedback in confidence; (b) to pay any compensation for any Feedback; or (c) to respond to any Feedback. You grant us the right to use the name that you submit in connection with any Feedback.
8. Warranty Disclaimers.
(a) This Section 8 applies whether or not you have paid for the Device, the Grin Services or the App. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF YOU RESIDE IN SUCH A JURISDICTION, THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU RESIDE.
(b) THE DEVICE, THE GRIN SERVICES, THE APP AND THE OTHER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. GRIN HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE PRACTICE. GRIN DOES NOT GUARANTEE THAT THE GRIN SERVICES, THE APP OR THE OTHER SERVICES WILL BE FREE OF BUGS, MALFUNCTIONS, SECURITY BREACHES, VIRUS ATTACKS, OR ILLEGAL PENETRATIONS. THE GRIN SERVICES, THE APP AND THE OTHER SERVICES MAY OCCASIONALLY BE UNAVAILABLE FOR ROUTINE MAINTENANCE, UPGRADING, OR OTHER REASONS. GRIN DOES NOT WARRANT THAT ANY OF THE AFOREMENTIONED ISSUES WILL BE CORRECTED. YOU AGREE THAT GRIN WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS. WE DO NOT WARRANT, ENDORSE OR GUARANTEE ANY CONTENT, PRODUCT, OR SERVICE THAT IS FEATURED OR ADVERTISED ON THE GRIN SERVICES, THE APP OR ANY OF THE OTHER SERVICES BY A THIRD PARTY.
(c) GRIN IS NOT RESPONSIBLE FOR AND DOES NOT GUARANTEE ANY ORTHODONTISTS’ SUITABILITY, COMPETENCY, OR COMPATIBILITY TO THE NEEDS AND OBJECTIVES OF PATIENTS AND GRIN DOES NOT WARRANT, ENDORSE OR GUARANTEE TO PATIENTS ANY SERVICE PERFORMED BY ANY ORTHODONTIST. GRIN SHALL NOT BE LIABLE TO YOU OR TO OTHER PATIENTS OR USERS IN ANY WAY FOR THE RESULTS OR OUTCOMES OF THE DEVICES OR ANY OF THE GRIN SERVICES PROVIDED HEREUNDER OR FOR ANY ORTHODONTIC, MEDICAL OR CLINICAL ADVICE, TREATMENT OR DIAGNOSTIC PROVIDED THROUGH THE DEVICE, THE GRIN SERVICES OR THE APP, INCLUDING, WITHOUT LIMITATION, FOR THE ACTS OR OMISSIONS OF YOUR ORTHODONTISTS AND/OR ANY ACTIVITIES OCCURRING ON THE PREMISES OF YOUR ORTHODONTIST’S OFFICE. FOR CLARITY, ALL THE ABOVE ARE THE RESPONSIBILITY OF YOUR ORTHODONTIST AND NOT GRIN’S RESPONSIBILITY.
(d) YOU HEREBY ACKNOWLEDGE THAT YOUR USE OF THE DEVICE, THE GRIN SERVICES, THE APP OR ANY OF THE OTHER SERVICES IS VOLUNTARY AND AT YOUR OWN RISK, AND YOU AGREE THAT GRIN WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCES (SUCH AS, BUT NOT LIMITED TO, HEALTH PROBLEMS, PERSONAL INJURY, OR DEATH) TO YOU OR OTHER THIRD PARTY THAT RESULT FROM (I) YOUR USE OF (OR INABILITY TO USE) THE DEVICE, THE GRIN SERVICES, THE APP OR ANY OF THE OTHER SERVICES OR (II) YOUR NEGLECT OR MISUSE OF THE DEVICE OR THE GRIN SERVICES. YOU ACKNOWLEDGE THAT GRIN IS NOT A LICENSED ORTHODONTIST OR MEDICAL CARE PROVIDER AND THAT YOUR ORTHODONTIST OR MEDICAL PROVIDER IS SOLELY RESPONSIBLE FOR THE ORTHODONTIC OR MEDICAL INFORMATION OR ADVICE PROVIDED BY YOUR ORTHODONTIST OR PROVIDER THROUGH THE DEVICE, THE GRIN SERVICES OR THE APP. YOU HEREBY ACKNOWLEDGE THAT ANY ORTHODONTIC, MEDICAL OR OTHER SIMILAR PROFESSIONAL ADVICE PROVIDED VIA THE DEVICE, THE GRIN SERVICES OR THE APP IS THE RESPONSIBILITY OF YOUR ORTHODONTIST.
9. Limitation of Liability.
(a) TO THE FULLEST EXTENT PERMISSIBLE BY LAW, AND EXCEPT FOR GRIN’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER GRIN NOR ANY OF ITS AFFILIATES SHALL BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE OR FOR ANY DIRECT, INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND, OR FOR ANY LOSS OF DATA, REPUTATION OR ANY OTHER INTANGIBLE LOSS, ARISING FROM OR IN CONNECTION WTIH THESE TERMS, YOUR ORTHODONTIST’S SERVICES OR OUT OF YOUR ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE, THE DEVICE, THE GRIN SERVICES OR THE APP, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, EVEN IF GRIN OR ANY OF ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitations may not apply to you.
(b) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GRIN FOR ANY DAMAGES ARISING UNDER THESE TERMS, THE ORTHODONTISTS’ SERVICES OR OUT OF YOUR ACCESS OR USE OF, OR INABILITY TO ACCESS AND USE, THE DEVICE, THE GRIN SERVICES OR THE APP EXCEED THE GREATER OF (I) THE TOTAL AMOUNT OF FEES, IF ANY, PAID BY YOU TO GRIN UNDER OR IN CONNECTION WITH THE DEVICE, THE GRIN SERVICES OR THE APP IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (II) $500.
(c) EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. Indemnity. To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless Grin and its affiliates, and our respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from your (a) violation of these Terms, (b) misuse of the Device, the Grin Services or the App or (c) violation of law.
11. Dispute Resolution and Arbitration.
(a) Generally. In the interest of resolving disputes between you and Grin in the most expedient and cost-effective manner, and except as described in Sections 11(b) and 11(c), you and Grin agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND GRIN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Despite the provisions of Section 11(a), nothing in these Terms will be deemed to restrict or otherwise limit the right of either party to: (a) bring an individual action in small claims court to the extent that the applicable requirements have been met; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in any court of competent jurisdiction to address an intellectual property infringement claim.
(c) Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 11 within 30 days after the date that you agree to these Terms by sending a letter to Get-Grin, Inc., Attention: Legal Department – Arbitration Opt-Out, 382A Rte 59, Airmont, NY 10952 that specifies: your full legal name, the email address associated with your account on the Grin Services, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Grin receives your Opt-Out Notice, this Section 11 (other than Section 11(b)) will be null and void, and in that case, the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms or any of the Services. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
(d) Arbitration. Any arbitration between you and Grin will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Grin. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county of your billing address. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
(e) Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Grin’s address for Notice is: Get-Grin, Inc., 382A Rte 59, Airmont, NY 10952. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the Notice of Arbitration is received, either you or Grin may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Grin must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Grin in settlement of the dispute prior to the award, then Grin will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
(f) Fees; Prevailing Party. If you commence arbitration in accordance with these Terms, Grin will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. The party prevailing in any arbitration shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
(g) No Class Actions. YOU AND GRIN AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Grin otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(h) Modifications to this Arbitration Provision. If Grin makes any future change to this arbitration provision, other than a change to Grin’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Grin’s address for Notice of Arbitration, in which case (i) your account with Grin and your right to access and use the Device, the Grin Services and the App will be immediately terminated and (ii) this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(i) Enforceability. If Section 11(h) or the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 (other than Section 11(b)) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms or any of the Services.
(j) YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO YOUR USE OF THE DEVICE, THE GRIN SERVICES, THE APP OR ANY OF THE OTHER SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(a) Grin. If you violate any of these Terms, Grin may, upon prior written notice to you, suspend your ability to access and use the Grin Services and the App. You agree that Grin in its sole discretion, for any or no reason, and without penalty, may terminate your access and use of the Device, the Grin Services, the App or any of the other Services or any account (or any part thereof) that you may have with Grin and remove and discard all or any part of your account, user profile, at any time. Grin may also in its sole discretion and at any time prohibit you from accessing and using the Device, the Grin Services and the App or discontinue providing access to the Grin Services and the App or any of the other Services, or any part thereof, with or without notice. You agree that any termination of your ability to access or use the Device, the Grin Services, the App or any of the other Services or any account you may have, or portion thereof may be effected without prior notice, and you agree that Grin will not be liable to you or any third party for any such termination or suspect. These remedies are in addition to any other remedies that Grin may have at law or in equity. As provided herein, Grin does not permit copyright infringing activities on the Site or any of the other Services, and Grin shall be permitted to terminate access to the Site or any of the other Services. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD GRIN HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY GRIN DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER GRIN OR LAW ENFORCEMENT AUTHORITIES.
(b) You. Your only remedy with respect to any dissatisfaction with (i) the Device, the Grin Services, the App or any of the other Services, (ii) any term of these Terms or (iii) any policy or practice of Grin in operating the Grin Services, the App or the other Services, is to terminate your use of the Device, the Grin Services and the App, any of the other Services and your account (if any). You may terminate your use of the Services and your account (if any) at any time by sending an email request to us at email@example.com.
(c) Upon termination of these Terms for any reason, you shall cease all use of the Device, the Grin Services and the App.
(d) This Section 12 and Section 2 (Privacy), 5 (Prohibited Conduct), 7 (Intellectual Property Rights), 8 (Warranty Disclaimers), 9 (Limitation of Liability), 10 (Indemnity), 11 (Dispute Resolution and Arbitration), Section 15 (Export), Section 17 (Governing Law) and Section 23 (Miscellaneous) shall survive the termination of these Terms.
13. Independent Contractors. You and Grin are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, or employment relationship between you and Grin. You must not under any circumstances make, or undertake, any warranties, representations, commitments or obligations on behalf of Grin.
(a) Grin reserves the right, in its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Site or any of the other Services. If Grin updates these Terms, it will update the “last updated” date at the top of the Terms. Please check these Terms, including any Additional Terms, periodically for changes. Your continued use of the Device, the Grin Services, the App or any of the other Services after the posting of changes constitutes your binding acceptance of such changes. In the event of a change to these Terms that materially modifies your rights or obligations, Grin will use commercially reasonable efforts to notify you of such change. Grin may provide notice through a pop-up or banner within any of the Services, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, Grin may require you to provide consent by accepting the changed Terms. If Grin requires your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Grin, such amended Terms will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on any of the Services. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF ALL SERVICES.
To the extent that any modifications to the Terms or Additional Terms are not allowed under applicable laws, the prior most recent version of the Terms or Additional Terms shall continue to apply.
(b) Grin reserves the right to modify, in its absolute discretion and without notice to you (or any other User), the Device, the Grin Services and/or the App and their content, including its design and the services that are provided through them.
15. Export Laws. You agree to comply fully with all applicable export laws and regulations to ensure that none of the Device, the Grin Services or the App nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
16. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, in whole or in part, but may be assigned by Grin without restriction or notification to you. Any prohibited assignment shall be null and void.
18. Additional Terms. Your access and use of the Device, the Grin Services and the App are subject to all additional terms, policies, rules, or guidelines applicable to the Device, the Grin Services or the App that we may post on or link to or from the Site, the Grin Services or the App (collectively, the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
20. Support. Support shall be provided via email at firstname.lastname@example.org or through the “Help” link on our website between the hours of 9:00 am and 5:00 pm EST Monday to Friday, excluding all Federal, state and other company holidays. Grin shall use commercially reasonable efforts to respond to any issues within one (1) business day.
21. Geographic Restrictions. Grin is based in the state of New York in the United States. The Device, the Grin Services and the App are intended solely for users located within the United States. Grin makes no claims that accessing or using or that the Device, the Grin Services or the App or any of the content is accessible or appropriate outside of the United States. Accessing or using the Device, the Grin Services or the App may not be legal by certain persons or in certain countries. If you access or use the Device, the Grin Services or the App from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Grin with respect thereto.
22. App Store Requirements and Usage Rules.
Apple. If you download the App from the Apple, Inc. (“Apple”) App Store (or in any event if you download an Apple iOS App) then, without derogating from the warranty disclaimers and limitation of liability as set forth in the Terms:
(a) You acknowledge and agree that:
(i) This agreement is concluded between Grin and you only, and not with Apple, and Apple is not responsible for the App and the content thereof;
(ii) Your use of the App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement;
(iii) The License granted herein is limited to a non-transferable right to use the App on an Apple iPhone, iPod Touch, iPad, or other Apple-branded product that you own or control and that runs the iOS;
(iv) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
(v) Apple is not responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will, to the extent applicable, refund any purchase price paid (if any) by you for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App;
(vi) Apple is not responsible for addressing any product claims you, or any third party, may have relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation, including in connection with the App’s use of HealthKit and HomeKit frameworks;
(vii) in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Apple shall not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim; and
(viii) Apple, and its subsidiaries, are third party beneficiaries of this agreement, and that, upon your acceptance of the terms and conditions of this agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement against you as a third party beneficiary thereof.
(b) You represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
(c) If you have any questions, complaints, or claims regarding the App, please contact Grin at: email@example.com.
By entering into this agreement, you, to the extent legally permitted, hereby waive any applicable law requiring that this agreement be localized to meet your language and other local requirements. To the extent that the foregoing is not permitted, you agree to be bound by the standard Apple Licensed Application End User License Agreement, which is part of the Apple App Store Terms of Service, at www.apple.com/legal/itunes/us/terms.html#SERVICE (as amended from time to time).
24. Contact Information. The Device, the Grin Services, the App and the other Services are offered by Get-Grin Inc., located at 382A Rte 59, Airmont, NY 10952. If you have any questions, complaints, or claims regarding the Device, the Grin Services, the App or any of the other Service, you may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
25. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Device, the Grin Services or the App or to receive further information regarding use of the Device, the Grin Services or the App.
© Get-Grin Inc. 2020