Terms & Conditions
Effective Date: June 26, 2017
1.1.IMPORTANT — THIS AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) (“YOU” OR “YOUR”) AND Groome, INC. (HEREINAFTER “GROOME,” “WE”, “US” OR “OUR”) THAT SETS FORTH THE LEGAL TERMS AND CONDITIONS FOR YOUR ACCESS TO AND USE OF AND ANY OTHER WEBSITE OWNED AND OPERATED BY GROOME (THE “WEBSITE(S)” OR “SITE(S)”) AND ANY GROOME SOFTWARE, INCLUDING ANY GROOME MOBILE APPLICATIONS (THE “APP(S)”) OR OTHER SERVICES OFFERED BY GROOME FROM TIME TO TIME A (COLLECTIVELY, THE WEBSITE(S), APP(S) AND SERVICES ARE REFERRED TO AS “SERVICE(S)”).
1.2.Which terms will govern you? DEPENDING UPON THE JURISDICTION IN WHICH YOU ARE LOCATED, DIFFERENT TERMS THROUGHOUT THIS DOCUMENT WILL APPLY TO YOU. FOR EXAMPLE, IF YOU ARE A USER LOCATED WITHIN THE UNITED STATES OR CANADA ACCESSING THE SERVICE(S), THE MANDATORY ARBITRATION LANGUAGE INCLUDED IN SECTION 13.6 BELOW WILL APPLY.
1.3.Why should you read these Terms? These terms create a legally binding agreement between you and us. By accessing or using the Site, you are accepting this Agreement and agreeing to use the Services in accordance with the terms and conditions in this Agreement. Some of our Services may have additional rules, policies, and procedures. Where such additional terms apply, we will make them available for you. A copy of these Terms and Conditions may be downloaded, saved and printed for your reference.
1.4.You confirm that you can enter the Agreement. As a condition of your use of the Services, you confirm and warrant to us that you meet the eligibility requirements set out in Section 4.3 and have the right, authority, and capacity to enter into these terms or, if you are under the age of majority in your jurisdiction of residence, you have have obtained the consent of your parent or legal guardian to this Agreement,.
1.5.Which provisions of the terms should you pay particular attention to? The key terms that you should consider in particular detail are: 3. Changes to the Site and these Terms; 9. Our responsibility for loss or damage; and 11. Termination.
1.6.What to do if you don’t want to accept these terms? If you do not agree with all of the provisions of these terms, do not access and/or use the Services.
2Information about Groome and contact details
2.1.Who we are. Groome Inc. is a company registered in Virginia, USA.
2.2.Where we are based. Our registered office is at 2608 3rd Street North, Arlington, Virginia 22201.
2.3.How to contact us. You can contact us by writing to us at 2608 3rd Street North, Arlington, Virginia 22201.
2.4.How we may contact you. If we have to contact you we may do so by telephone or by email to the number and/or address you provided when you registered for an Account.
2.5.Email counts as “in writing”. When we use the words “writing” or “written” in these Terms, this includes emails. For contractual purposes, you consent to receiving communications from Groome by email.
3Changes to the Site and these Terms
3.1.Small changes.We reserve the right to change the terms and conditions of this Agreement or to modify or discontinue the Services offered by Groome at any time. Those changes will go into effect on the effective date shown in the revised agreement. If we change this Agreement, we will give you notice by posting the revised agreement on the applicable website(s) or app(s) and sending an email notice to you using the contact information provided by you. Therefore, you agree to keep your contact information up-to-date and that notice sent to the last email address you provided shall be considered effective. We also encourage you to check this Agreement from time to time to see if it has been updated.
3.2.More significant changes. In addition, we may make more significant changes to the Site and/or these Terms, but if we do so and these changes materially or adversely impact your rights or use of the Site, we will notify you by email of such changes using the contact information provided by you. We may require you to provide consent to the updated agreement before further use of the Services is permitted. By continuing to use any Services after the new effective date, you agree to be bound by such changes. If the modified terms are not acceptable to you, please cease using the Services.
4Service Description and Participation/Account Creation/Eligibility/Referrals and Promotions
4.2.Account Creation. In order to access certain features of the Website and Apps and to use certain Services, you may be required to register to create an account (“Account”). In connection with setting up your Account with Groome, we may supply you with a user identification and/or password. In connection with any future use, you may be asked to input your user identification and/or password from time to time. You agree to be responsible for all activity that occurs under your Account and agree to be responsible for maintaining the security of your password and user identification. You agree to immediately notify Groome of any unauthorized use of your user identification or password or any other breach of security. You can delete your Account at any time, for any reason.
4.3.Eligibility. Persons under 13 are prohibited from providing personal information on our Websites or via our Apps. If you are under the age of majority in your jurisdiction of residence, you may use the Services only with the involvement of your parent or guardian. Make sure that you review these terms with your parent or guardian so that you both understand all your rights and responsibilities. If you are under the age of majority in your jurisdiction of residence, you represent and warrant that you have obtained the consent of your parent or legal guardian to this Agreement.
4.4Referral Credits. We offer credits for referring new users. To qualify for a referral credit, you must refer a new user who establishes a Groome Account and reserves and completes a service within [ninety (90)] days of signing up for an account. Please note that referral credits are given for the purpose of attracting brand new users to Groome. You may earn only one referral bonus per new user referred, and the value of your referral bonuses may not exceed one thousand five hundred dollars ($1,500).
4.5Promotional Codes. We may, in our sole discretion, create promotional codes that may be redeemed for credit in your Account, or other features or benefits related to the Services, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. [Each benefit may only be redeemed once per account. Promo Codes for duplicate benefits will be voided.] Only Promo Codes sent to you through official Groome communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use.
4.6Reservation of Rights. We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event we determine or form a suspicion that the use or redemption of the Promo Code or the provision of any referral credit was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or the terms of this Agreement. Once you have redeemed a Promo Code or used any credit in your Account to purchase Services, no further promotional value adjustments or credits will be issued for any reason, including but not limited to, dissatisfaction with the Services.
5Gift Cards. The following terms under this “Gift Cards” heading relate to you as the purchaser or user of gift cards purchased through the Site (“Gift Cards”). IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT PURCHASE
GIFT CARDS THROUGH THE SITE.
5.2Use and Limitations. Gift Cards cannot be used to purchase other gift cards. To the fullest extent of the law, Gift Cards cannot be reloaded, resold, transferred for value, redeemed for cash, or applied to any other account. Unused Gift Card balances in an account may not be transferred. Unless otherwise required by law, Gift Cards are not returnable or refundable for cash. If applicable law permits the card-holder cash-out a Gift Card, such request may be made to email@example.com. To the fullest extent of the law, Gift Cards may not be sold or bartered to third parties. Gift Cards may be used as personal or business gifts, but may not be used in connection with any marketing, advertising, or other promotional activities (including without limitation via Sites, Internet advertisements, email, telemarketing, direct mail, newspaper and magazine advertisements, and radio and television broadcasts) unless you obtain Groome’s prior written approval. Groome will not be liable with respect to any Gift Card that is obtained from unauthorized sellers or resellers, including through Internet auction sites. Use of Groome’s name, logo, trade dress (including any image/likeness of the Gift Cards) or trademarks (or those of any of its subsidiaries or affiliates) in connection with the purchase or use of Groome Gift Cards is strictly prohibited. Furthermore, the use of Groome Gift Cards in any manner that states or implies that any person, Site, business, product, or service is endorsed or sponsored by, or otherwise affiliated with, Groome, or any of its subsidiaries or affiliates is prohibited.
5.3Risk of Loss. If your Gift Card is lost or stolen, immediately contact customer service at firstname.lastname@example.org. Your Gift Card will be cancelled and after an internal investigation, we will issue a new Gift Card with the remaining balance, if any. Lost or stolen Gift Cards cannot be replaced without the original confirmation email sent to the email account provided to Groome. Groome and its affiliates shall have no liability to you for: lost or stolen Gift Cards; or use of any Gift Cards by third parties through your account that is not attributable to the negligence or misconduct of Groome. You are responsible for keeping the username and password for your Account safe and for any activity conducted under your account that is not attributable to the negligence or misconduct of Groome. Notwithstanding the above, the risk of loss and title for Gift Cards passes to the purchaser upon our electronic transmission to the purchaser, recipient, or delivery to the carrier, whichever is first and/or applicable. The Gift Cards never expire, nor is there a dormancy fee, but we are not responsible if a Gift Card is lost, stolen, destroyed, or used without your permission for reasons not attributable to the negligence or intentional or reckless misconduct of Groome.
5.4Issuer. Gift Cards are issued by Groome Merchandise, Inc., a Delaware company.
6.1.You are responsible for your use of the Services, and for any use of the Services made using your Account. Our goal is to create a positive experience in connection with our Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to Groome.
6.2.If you are a Therapist or Customer, you agree not to attempt to contact each other directly about the Services outside of the Services for a period of 6 months after the date of your last visit to the Services, except as may be permitted by these Terms or Groome, or otherwise circumvent your relationship with Groome.
6.3.When you use the Services, you agree that you will not:
(a)violate this Agreement or any Groome rules regarding use of the Services;
(b)violate any law or regulation;
(c)breach any agreements you enter into with any third parties;
(d)violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
(e)engage in any behavior that is abusive, harassing, indecent, profane, obscene, hateful or otherwise objectionable, including sexual misconduct;
(f)stalk, harass, or harm another individual;
(g)for the purpose of misleading others, create a false identity of the sender or the origin of a message, forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Services or in connection with Groome;
(h)impersonate any person or entity or perform any other similar fraudulent activity;
(i)harvest or otherwise collect or store any information (including personally identifiable information) about other users of the Services, including e-mail addresses, without the express consent of such users or alter transmission data;
(j)collect, distribute or gather personal or aggregate information, including Internet, e-mail or other electronic addresses, about Groome’s customers or other users;
(k)upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation or commercial electronic message;
(l)use any means to scrape or crawl any Web pages or Content contained in the Websites or Apps (although Groome may allow operators of public search engines to use spiders to index materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, and Groome reserves the right to revoke these exceptions either generally or in specific cases);
(m)attempt to circumvent any technological measure implemented by Groome or any of Soothe’s providers or any other third party (including another user) to protect the Websites or Apps; to the extent permitted by applicable law, attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Websites or Apps; or
(n)advocate, encourage, or assist any third party in doing any of the foregoing.
7Mobile Application License
7.1.Subject at all times to this Agreement, if you elect to download the App, the following also applies: Groome grants you a license to download, install and use a copy of the App on a single mobile device or computer that you own or control solely for your personal and professional use on the basis that the license is:
(a)revocable – we have the right to remove your ability to use the App in accordance with these Terms;
(b)non-exclusive – other people can access and use the App;
(c)non-transferable – you can’t pass this right to someone else or sublicense the license; and
(d)limited – the license does not extend beyond what has just been described above.
7.2.Furthermore, with respect to any App accessed through or downloaded from an App Store such as Google Play or the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of Section 11.
8Payments, Cancellation and Rescheduling
8.1.Pricing and Fees. We may charge fees in connection with your use of the Services. The price of the product or service will be the price indicated on the order pages when you placed your order. We use our best efforts to ensure that the price advised to you is correct. However please see Section 8.2 for what happens if we discover an error in the price of your order. Further, as a Customer, you may elect to tip your Therapist. You acknowledge that Groome does not determine or mandate any such tip or gratuity amount and you hereby agree to pay the amount you authorize as a tip for your Therapist.
8.2.What happens if we got the price wrong? It is always possible that, despite our best efforts, some of the Services may be incorrectly priced. We will normally check prices before accepting your order so that, where the correct price at your order date is less than our stated price at your order date, we will charge the lower amount. If the correct price at your order date is higher than the price stated to you, we will contact you for your instructions before we accept your order.
8.3.When you must pay and how you must pay. You agree to pay all charges incurred by you or any users of your Account and payment card (or other applicable payment mechanism) at the amounts in effect when such charges are incurred. Customers must provide Groome with a valid credit or debit card (Visa, MasterCard, or any other accepted issuer) or use Apple Pay or any other payment or financial mechanism specified by Groome (“Payment Provider”) as a condition to making any payments. Therapists must support the use of the Payment Providers and provide Groome with valid bank account information (e.g. account and routing number) as a condition to receiving any payments. The Customer’s Payment Provider agreement governs its use of the designated credit or debit card or other mechanism, and the Customer should refer to that agreement and not this Agreement to determine its rights and liabilities. By providing Groome with your payment and/or financial information, you agree that Groome and any of its third party payment processors are authorized to immediately debit or credit your account for all applicable fees and charges and that no additional notice or consent is required. You agree to immediately notify Groome of any change in your payment and financial information. Groome reserves the right at any time to change its prices and billing methods. All information that you provide to us or our third party payment processors must be accurate, current and complete. You will also be responsible for paying any applicable taxes relating to payments that you make or that you receive.
8.4.For Therapists. Each Therapist hereby appoints Groome as the Therapist’s limited payment collection agent solely for the purpose of accepting applicable payment from Customers. Each Therapist agrees that payment made by a Customer through Groome shall be considered the same as a payment made directly to the Therapist, and the Therapist will provide its services to the Customer in the agreed-upon manner as if the Therapist has received the payment. Groome reserves the right to charge the Therapist a commission on the fees paid by a Customer to the Therapist for the provision of Therapist’s services (“Groome Commission”). Each Therapist understands that Groome accepts payments from Customers as the Therapist’s limited payment collection agent and that Groome’s obligation to pay the Therapist is subject to and conditional upon successful receipt of the associated payments from Customers. Groome does not guarantee payments to Therapists for amounts that have not been successfully received by Groome from Customers. In accepting appointment as the limited payment collection agent of the Therapist, Groome assumes no liability for any acts or omissions of the Customers. Each Customer acknowledges and agrees that Groome reserves the right, in its sole discretion, to charge Customer for and collect fees from the Customer. In the event a Customer elects to tip the Therapist for the provision of services, the Customer will be charged for such tip amount designated by Customer. Tips will not be subject to any Groome Commission. Groome reserves the right at its discretion to cancel or reverse any payment, even if it has been previously confirmed by Soothe, as a result of any mistake or error, including any mistaken pricing or service description or other error.
8.5.Cancellations and Rescheduling. If you are a Therapist or Customer, you agree to Groome’s cancellation and rescheduling policy and the associated charges and payments, the terms of which are located here https://www.soothe.com/cancellation and are incorporated herein by reference.
9Ownership & Copyright
9.1.Ownership. The parties agree that all proprietary rights in the Services are and will remain the property of Soothe. This includes non-personally identifiable aggregate data collected by Soothe in connection with providing the Services, including usage statistics and traffic patterns, any and all rights, title and interest to which are hereby assigned to Soothe by you.
(a)The Websites and Apps, including but not limited to software, content, text, photographs, images, graphics, video, audio and the compilation as a whole (“Content”), are copyrighted under U.S. and Canadian copyright, trademark and other laws by Groome or its licensors, unless otherwise noted. You must abide by all additional copyright notices or restrictions contained in the Websites, Apps or elsewhere. You may not delete any legal or proprietary notices in the Websites, Apps or elsewhere.
(b)Except as noted in Section 7 above: (1) the Websites and Apps may not be used, displayed, copied, reproduced, distributed, republished, uploaded, downloaded, posted, transmitted, mirrored or modified; and (2) except to the extent permitted by applicable law, you may not redistribute, sell, translate, modify, reverse-engineer or reverse-compile or decompile, disassemble or make derivative works of the Websites, Apps or any Content or components that are available on the Websites or Apps.
(c)You agree not to interfere or take action that results in interference with or disruption of the Websites or Apps or servers or networks connected to the Websites or Apps. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites or Apps. Groome reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under Soothe’s and/or any third party’s intellectual property rights. Notwithstanding anything herein to the contrary, Soothe may revoke any of the foregoing rights and/or your access to the Services, including the App, or any part thereof, at any time without prior notice.
9.3.Copyright Permission. Permission is granted for viewing the Website pages and Content on the Internet and via the Apps for your own informational purposes, subject to the terms and conditions of this Agreement. In the event that information is downloaded from the Websites or Apps, the information, including any Content, data or files incorporated in or generated by the Websites or Apps are owned by Soothe and Soothe retains complete title to the information and all property rights therein. All other rights are reserved. Reproduction of multiple copies of the Content, in whole or in part, for resale or distribution, is strictly prohibited except with the prior written permission of Soothe. To obtain written consent for such reproduction, please contact us at email@example.com.
9.4.Content License. As part of the Services, we may, if our sole discretion, permit you to post, upload, publish, submit or transmit certain content (“Your Materials”). We may also post a photograph or other visual likeness of you (“Your Image”). By making available any of Your Materials on or through the Services or if we make available Your Image on or through the Services, you (i) hereby grant to Groome the right to use Your Materials and Your Image as necessary to provide the Services, promote the Services and improve the Services, and (ii) waive any and all moral rights that you may have in and to Your Materials and Your Image with respect to these uses. Groome does not claim any ownership rights in any of Your Materials and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any of Your Materials. If you do not want to grant us permission to use Your Material or Your Image in accordance with this Agreement, please do not post, upload, publish, submit or transmit Your Materials or Your Image.
9.5.Copyright Policy. You acknowledge and agree that you are solely responsible for all of Your Materials that you make available through the Services. You represent and warrant that: (1) you either are the sole and exclusive owner of all of Your Materials that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to Groome (or, the Therapist or Customer as applicable) the rights in Your Materials, as contemplated under this Agreement; and (2) neither Your Materials nor your posting, uploading, publication, submission or transmittal of Your Materials or Groome’s (or, the Therapist’s or Customer’s as applicable) use of Your Materials or Your Image (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate any patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
9.6.Trademarks/Use of Name or Brand. All Content, product names, trademarks, service marks and logos appearing as part of the Services, unless otherwise noted, are wholly owned or validly licensed by Groome. Trademarks, service marks and logos owned by third parties remain the property of such third parties.
9.7.Feedback. If you submit any ideas, suggestions or testimonials “Feedback” to Groome, you hereby transfer to us all rights in such Feedback without charge. You also agree that Groome shall have the right to use and fully exploit such Feedback in any manner that we consider appropriate, including posting on the Internet. Please note that the Feedback you provide to us will not be treated as confidential information – accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary.You may only submit ideas and material if you have obtained appropriate copyright and other permission to submit such materials and to permit Groome to use such material without restriction. You agree that you will not violate or infringe the rights of third parties, including privacy, publicity and intellectual and proprietary rights, such as copyright or trademark rights.
10Our Responsibility for Loss or Damage
TO INDIVIDUAL CUSTOMERS
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS, LIABILITY OR CERTAIN DAMAGES OR LIMITATIONS OF REPRESENTATIONS MADE CONCERNING GOODS OR SERVICES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
10.1.DISCLAIMER. GROOME DOES NOT MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO THE SERVICES. YOU AGREE THAT ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF ANY ACTION OR INACTION OF ANY THERAPISTS OR CUSTOMERS, SHALL BE EXCLUSIVELY BETWEEN YOU AND THE THERAPIST OR CUSTOMER (AS APPLICABLE) AND NOT GROOME. THE SERVICES ARE PROVIDED “AS IS.” YOU AGREE TO USE THE SERVICES SOLELY AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SERVICES. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT ANY DAMAGES TO YOU, WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING. YOU UNDERSTAND AND ACKNOWLEDGE THAT GROOME ONLY PROVIDES A PLATFORM FOR COMMUNICATION BETWEEN THERAPISTS AND CUSTOMERS, AND AS SUCH GROOME DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY THERAPIST(S) OR OTHER CUSTOMER(S). ANY REPRESENTATIONS MADE TO YOU BY ANY THERAPIST(S) ARE MADE SOLELY AT THE DISCRETION OF THE THERAPIST AND GROOME HAS NO WAY TO MONITOR OR VALIDATE, AND SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, ANY REPRESENTATIONS OR STATEMENTS MADE TO YOU BY THE THERAPIST(S). YOU UNDERSTAND AND ACKNOWLEDGE THAT GROOME SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY THE THERAPIST TO YOU AS A RESULT OF YOUR USE OF THE SERVICE(S).
10.2.THE SITE IS NOT BESPOKE TO YOU. YOU ACKNOWLEDGE THAT THE SITE HAS NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS, AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE SITE MEET YOUR REQUIREMENTS.
10.3.WE ARE RESPONSIBLE TO YOU ONLY FOR FORESEEABLE LOSS AND DAMAGE CAUSED BY US. IF WE FAIL TO COMPLY WITH THESE TERMS, WE ARE RESPONSIBLE FOR LOSS OR DAMAGE YOU SUFFER THAT IS A FORESEEABLE RESULT OF OUR BREAKING THESE TERMS OR OUR FAILURE TO USE REASONABLE CARE AND SKILL, BUT WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT IS NOT FORESEEABLE. LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME THESE TERMS ARE ENTERED INTO AND BOTH WE AND YOU KNEW IT MIGHT HAPPEN.
10.4.WE ARE NOT LIABLE FOR BUSINESS LOSSES. [IF YOU ARE AN INDIVIDUAL CUSTOMER, WE ONLY MAKE THE SITE AVAILABLE FOR YOUR DOMESTIC AND PRIVATE USE. IF YOU ARE A THERAPIST AND USE THE SITE FOR ANY COMMERCIAL, BUSINESS OR RE-SALE PURPOSE WE WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY.
10.5.NO LIABILITY FOR DAMAGE CAUSED BY UNAUTHORISED ACCESS. WE WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF UNAUTHORISED ACCESS TO YOUR ACCOUNT WHICH IS NOT WITHIN OUR REASONABLE CONTROL.
TO CORPORATE CUSTOMERS AND THERAPISTS
10.6.DISCLAIMER. GROOME DOES NOT MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO THE SERVICES. YOU AGREE THAT ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF ANY ACTION OR INACTION OF ANY THERAPISTS OR CUSTOMERS, SHALL BE EXCLUSIVELY BETWEEN YOU AND THE THERAPIST OR CUSTOMER (AS APPLICABLE) AND NOT GROOME. THE SERVICES ARE PROVIDED “AS IS.” YOU AGREE TO USE THE SERVICES SOLELY AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SERVICES. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT ANY DAMAGES TO YOU, WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING. YOU UNDERSTAND AND ACKNOWLEDGE THAT GROOME ONLY PROVIDES A PLATFORM FOR COMMUNICATION BETWEEN THERAPISTS AND CUSTOMERS, AND AS SUCH GROOME DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY THERAPIST(S) OR OTHER CUSTOMER(S). ANY REPRESENTATIONS MADE TO YOU BY ANY THERAPIST(S) ARE MADE SOLELY AT THE DISCRETION OF THE THERAPIST AND GROOME HAS NO WAY TO MONITOR OR VALIDATE, AND SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, ANY REPRESENTATIONS OR STATEMENTS MADE TO YOU BY THE THERAPIST(S). YOU UNDERSTAND AND ACKNOWLEDGE THAT GROOME SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY THE THERAPIST TO YOU AS A RESULT OF YOUR USE OF THE SERVICE(S).
10.7.LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU AGREE THAT GROOME, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES AND AGENTS WILL NOT BE LIABLE WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR: (A) ANY LOSS OF PROFITS; (B) ANY INDIRECT OR CONSEQUENTIAL LOSS; OR (C) TO THE EXTENT THAT YOU EXPERIENCE ANY LOSS OR DAMAGES RESULTING FROM YOUR USE OF THE SERVICES, INTERACTIONS WITH THERAPIST(S) OR OTHER CUSTOMERS.
10.8.INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS GROOME, ITS AFFILIATES, AGENTS, CONTRACTORS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES AND AGENTS, FROM ANY AND ALL LIABILITIES, CLAIMS, EXPENSES AND DAMAGES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OF THIS AGREEMENT.
TO INDIVIDUAL CUSTOMERS, CORPORATE CUSTOMERS AND THERAPISTS
10.9.LIABILITY CAP. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF GROOME, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES AND AGENTS TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, YOUR INTERACTION WITH ANY THERAPIST(S) OR OTHER CUSTOMER(S), ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT RECEIVED BY GROOME FROM YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR (B) $100.
10.10.THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES, CONDITIONS OR REPRESENTATIONS SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
10.11.WHAT WE DO NOT EXCLUDE. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR:
(a)DEATH OR PERSONAL INJURY RESULTING SOLELY FROM OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS;
(b)FRAUD OR FRAUDULENT MISREPRESENTATION;
(c)ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
11Third Party Links & App Store
11.1.Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Site contains links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Groome does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms.
11.2.App Store. When you download our Apps, you may do so through a third party’s App Store. You acknowledge that the terms of this Agreement are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application (as such term is defined in Section 7):
(a)Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
(b)You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c)In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Groome and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Groome.
(d)You and we acknowledge that, as between Groome and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (1) product liability claims; (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
(e)You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Groome and the App Store Owner, Groome, not the App Store Owner, 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 we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of this Agreement, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g)You represent and warrant that (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
(h)Without limiting any other terms in this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
12.1.When we might suspend or terminate your Account or Site access. We may, subject to applicable law, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate this Agreement and/or your access to the Services, and (b) deactivate or cancel your Account.
12.2.What happens when these Terms terminate? Upon termination we will promptly pay you any amounts that we reasonably determine we owe you (if any) in our discretion. In the event Groome terminates this Agreement or your access to the Services or deactivates or cancels your Account, you will remain liable for all amounts due hereunder.
12.3.Your right to cancel. You may cancel your Account at any time by contacting us at the contact information set out in Section 2. Please note that if your Account is cancelled, we do not have any obligation to delete or return to you any of Your Materials that you have posted to the Services, including, but not limited to, any reviews or Feedback.
12.4.Our right to cancel. If we terminate this Agreement and/or your access to the Services as a result of your violation of any applicable law or regulation, we may also, at our sole discretion, inform law enforcement or regulatory authorities of the circumstances surrounding such termination.
13Other Important Terms
13.2.Anti-Spam. Groome prohibits the sending of unsolicited email or text messages (spam) or other communications that violate applicable privacy and anti-spam legislation. Spam is defined for this purpose as sending any message that encourages participation in a commercial activity or multiple messages similar in content to any person(s), entity(ies), newsgroup(s), forum(s), email list(s), or other group(s), individual(s) or list(s) unless prior authorization has been obtained from the recipient or unless a business or personal relationship has already been established with the recipient in accordance with the requirements under applicable law. Groome also prohibits using false headers in emails or falsifying, forging or altering the origin of any email or text message in connection with Groome, and/or any products and Services. Groome prohibits engaging in any of the foregoing activities by using the service of another provider, remailer service, or otherwise. IF YOU OR ANYONE YOU KNOW IS “SPAMMED” BY SOMEONE IN RELATION TO SOOTHE’S SERVICES, PLEASE CONTACT US PROMPTLY VIA THE CONTACT MECHANISM MADE AVAILABLE VIA THE WEBSITE SO THAT WE MAY TAKE APPROPRIATE ACTION.
13.3.Governing Law and Jurisdiction. To the extent permitted by applicable by law, this Agreement will be governed by and interpreted in accordance with the laws of the State of California and we both agree to submit to the non-exclusive jurisdiction of the District Courts of California. This means that, if you are a citizen of a country in the EU, you may bring a claim to enforce your consumer protection rights in connection with these Terms in California or in the EU country in which you live.
13.4.Even if we delay in enforcing these Terms, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
13.5.Rights and Remedies. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
13.6.Mandatory Arbitration and Dispute Resolution for United States and Canadian Users. Please read this Arbitration Agreement carefully. It is part of your contract with Groome and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a)Applicability of Arbitration Agreement. To the extent permitted by applicable law, all claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of the Services provided by Groome that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Groom, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b)Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Soothe should be sent to: Director of Operations, Soothe, Inc. 7998 Santa Monica Blvd, West Hollywood, CA 90046. After the Notice is received, you and Groome may attempt to resolve the claim or dispute informally. If you and Groome do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c)Arbitration Rules. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Groome made to you prior to the initiation of arbitration, Groome will pay you the greater of the award or fifty dollars ($50). Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d)Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e)Time Limits. If you or Groome pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f)Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Groome , and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Groome.
(g)Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Groome in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h)Waiver of Class or Consolidated Actions. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i)Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j)Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k)Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l)Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Groome.
(m)Small Claims Court. Notwithstanding the foregoing, either you or Groome may bring an individual action in small claims court.
(n)Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o)Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p)Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose.
13.7.If a court finds part of these Terms illegal, the rest will continue in force. Each of the Sections of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining Sections will remain in full force and effect.
13.8.We may transfer these Terms to someone else. We may transfer our rights and obligations under these Terms to another organization – for example, this could include another member of our group of companies or someone who buys our business. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms.
13.9.Nobody else has any rights under these Terms. These Terms are between you and us. No other person shall have any rights to enforce any of its terms.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.
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