Terms and Conditions
These terms (“Terms”) are a binding contract between you and GOT and/or our subsidiaries or other affiliates (collectively, “Gratitude Organic Tea,” “Gratitude Health, LLC”, “we,” “us” or “our”). These Terms include the provisions in this document as well as those in the Privacy Policy. Your (1) purchase of any Products will also be governed by any other terms made available by us to you during the sales process, including, but not limited to the Standard Terms and Conditions of Sale, and (2) participation in any referral or promotion program, including receipt of any rewards or incentives for referring others to the Services, will also be governed by any other terms made available by us to you during the sales process. These Terms are important and affect your legal rights, so please read them carefully. If you do not agree to these Terms, you may not access or use the Services or order, receive, or use Products made available through the Services or otherwise from us. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with those Additional Terms. If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or such entity violates these Terms.
PLEASE READ THESE TERMS CAREFULLY. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: NOTE THAT SECTION 18 OF THE TERMS OF USE CONTAINS A MANDATORY ARBITRATION PROVISION, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THAT SECTION, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION
We are constantly striving to improve our Products and Services, so these Terms may change along with our Products and Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at gratitudeorganictea.com, send you an email, and/or notify you by some other means. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If
THESE TERMS REPLACE AND SUPERSEDE ALL PRIOR VERSIONS OF GOT TERMS OF USE AND PRIVACY POLICY.
1. Description and Use of the Services
GOT includes the offer, sale, production, and delivery of ready to drink green tea that is designed to be sustainable, healthy, and taste great.
2. Eligibility
The Services are not targeted toward or intended for use by anyone under the age of 18. By using the Services, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, (d) do not have more than one GOT Account (as defined below), and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
3. Community Guidelines
GOT’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Services, you hereby agree to comply with these community rules and that:
You must be the age of majority in their jurisdiction and capable of entering into binding contracts;
You will not use the Services for any unlawful purpose;
You may not use the Services to engage in any commercial activities, including, without limitation, raising money; advertising or promoting a product, service, or company; or engaging in any pyramid or other multi-tiered marketing scheme;
You will not upload, post, e-mail, transmit, or otherwise make available any User Content that:
is false, deceptive, misleading, deceitful, or misinformative;
Infringes any copyright, trademark, trade secret, right of publicity, or other proprietary rights of any person or entity;
is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or
discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information;You will not access or use the Services to collect any market research for or otherwise assist a competing business;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Services, except for Internet search
engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Services; and
You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords through hacking, password, or data.
Please let us know about inappropriate content. If you find something that violates our community guidelines, let us know, and we’ll review it. We reserve the right, in our sole and absolute discretion, to deny you access to the Services, or any portion of the Services, without notice, and remove or edit any User Content that does not adhere to these guidelines.
4. Registration, Account and Communication Preferences
4.1 General. In order to access and use certain areas or features of the Services, you will need to register for a GOT account (your “Account”). By creating an Account, you agree to (a) provide accurate, current, and complete Account information, (b) maintain and promptly update from time to time as necessary your Account information, (c) maintain the security of your password and accept all risks of unauthorized access to your Account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your Account.
4.2 Consent to receive electronic communications. By creating a GOT Account, you also consent to receive electronic communications from GOT (e.g., via email or by posting notices to the Services). These communications may include notices about your Account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
4.3 Recording and retaining communications. All communications with us, in any form, are subject to being recorded and retained by us for our business purposes. Any use by us of recording or retained communications is subject to the Terms. By communicating with us in any manner, you consent and agree to such recordings and retention, subject to the Terms.
4.4 Mobile Application.
You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such stores, including the specific terms relating to Apple App Store set forth below. You agree
to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Use, the more restrictive or conflicting terms and conditions in these Terms of Use apply.
Through our mobile applications, you may purchase (“In-App Purchase”) certain goods or features designed to enhance the performance of the Services. When you make an In-App Purchase, you are doing so through either the Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions, available at http://www.apple.com/legal/internet-services/itunes/us/terms.html and http://play.google.com/intl/en_us/about/play-terms.html). Gratitude Organic Tea (“GOT”) is not a party to any In-App Purchase.
These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
Both you and GOT acknowledge that the Terms are concluded between you and GOT only, and not with Apple, and that Apple is not responsible for the Application or the Content;
The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
You will only use the Application in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
You acknowledge and agree that Gratitude Health, LLC, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Gratitude Health, LLC, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and GOT acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be
affected by such use; and
Both you and GOT acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
5. Terms of Product Sale and Use
Purchases of GOT’s products and services are subject to our Standard Terms and Conditions of Sale, available at Terms of Sale and any other payment terms that may be presented to you at the time you purchase Products or Services offered by GOT from time to time, each of which are deemed part of these Terms.
6. License to Access and Use Our Services and Content
Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the GOT logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of GOT or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, non-transferable, non-sublicensable license to access and use the Services and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Services or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Services or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Services or Content, except as expressly permitted by us, and (f) use the Services or Content other than for their intended purposes. Any use of the Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright, or other proprietary rights of GOT or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time for any reason.
Notwithstanding anything to the contrary in these Terms, the Services and Content may include software components provided by Gratitude Health, LLC or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
6.1 Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act, we have adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members, or users and (2) remove and discontinue service to repeat offenders.
Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to GOT’s Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed;
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that GOT is capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number and, if available, email address;
A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
remove or disable access to the infringing material;
notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
terminate such content provider's access to the Services if he or she is a repeat offender.
Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
A physical or electronic signature of the content provider;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of
the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider's address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, GOT may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that GOT may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company's discretion.
Please contact GOT’s Designated Agent at the following address:
Address: Gratitude Health LLC.
Attn: Designated Agent
5900 Australian Ave., Ste 11
West Palm Beach, Fl 33407
Email: admin@organicgratitude.com
7. Trademarks
“Gratitude Tea,” the Gratitude Tea logo and any other Gratitude Health, LLC Product or service names, logos or slogans that may appear on the Services or Products are trademarks of Gratitude Health, LLC, are protected under United States and foreign intellectual property registration and other laws, and may not be copied, imitated, or used, in whole or in part, without our prior written permission. You may not use any meta tags or other “hidden text” utilizing “Gratitude Tea” or Gratitude Organic Tea” or any other name, trademark or Product or service name of Gratitude Health without our prior written permission. In addition, the look and feel of the Services and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Gratitude Health, LLC and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Services or Products are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by Gratitude Health.
8. Hyperlinks
You may be granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Services for noncommercial or promotional or marketing purposes. You shall not make or allow to be made any false, misleading, or disparaging remarks about Gratitude Health, LLC or any of our affiliated individuals or organizations or our products of services, and you agree that such hyperlink will not portray GOT or any of our Products in a false, misleading, derogatory, or
otherwise defamatory manner, and that the linking site will not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time by Gratitude Health, LLC for any reason. You may not use a Gratitude Organic Tea logo or other proprietary graphic of Gratitude Health, LLC to link to the Services without our express written permission, which, if granted, may be conditioned or revoked in our sole discretion, for any reason. Further, you may not use, frame, or utilize framing techniques to enclose any Gratitude Health, LLC trademark, logo, or other proprietary information, including the images found on the Services or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Services without our express written consent.
Gratitude Health, LLC makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of third party websites accessible by hyperlink from the Services or of websites linking to the Services. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes, or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
9. Third Party Content
We may display content, advertisements, and promotions from third parties through the Services or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse, or adopt any Third-Party Content, and we make no representations or warranties of any kind regarding such Third-Party Content, including, without limitation, regarding its accuracy or completeness. All third party content is provided “as is.” You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that GOT is not responsible or liable in any manner for such interactions or Third-Party Content.
10. User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Services. You agree that you will abide by these Terms and will not:
Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Use or attempt to use another user’s Account without authorization from such user and Gratitude Health, LLC;
Use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Services in any manner;
Reverse engineer any aspect of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any
Content, area, or code of the Services;
Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Services that you are not authorized to access;
Develop any third party applications that interact with User Content or the Services without our prior written consent;
Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Services, extract data, or otherwise interfere with or modify the rendering of Services pages or functionality;
Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Services, extract data, or otherwise interfere with or modify the rendering of Services pages or functionality;
Use the Services, or any information on the Services or in your Account for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates the Terms or other agreements with or rules of Gratitude Health, LLC.
11. User Content
The Services may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items, or other materials (collectively, “User Content”). In the event you decide to share User Content with others through the Services or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Services.
By using the interactive features and areas of the Services, you further agree not to create, post, share or store any of the following:
User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, or otherwise objectionable;
User Content that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or otherwise create liability or violate any local, state, national or international law;
User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
User Content that contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
User Content that impersonates, or misrepresents your affiliation with, any person or entity;
User Content that references or depicts GOT’s or our Products but fails to disclose a material connection to us, if you have one (for example, if you are a GOT employee or paid blogger);
User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
User Content that contains any private or personal information of a third party without
such third party’s consent
User Content that references alcohol irresponsibly, such as references to overconsumption or use by minors;
User Content that contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
User Content that, in our sole judgment, is objectionable, inconsistent with Gratitude Organic Tea’s values, or that restricts or inhibits any other person from using or enjoying the Services or Products, or that may expose GOT or others to any harm or liability of any type or adversely impact our reputation, or that of our partners, employees, vendors, Products, Services or anything associated with Gratitude Health, LLC.
We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense.
12. Rights in User Content
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Services or to our pages or feeds on third party social media platforms (e.g., Gratitude Organic Tea’s Facebook page, Instagram page or Twitter feed), you hereby grant Gratitude Health a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Gratitude Health, LLC through the Services or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, subject to Gratitude Health’s Privacy Policy, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Gratitude Health, LLC to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate or infringe these Terms or any applicable law, rule, regulation or third party right.
13. Feedback
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other evaluation data, information, reports and feedback about GOT the Services, or the Products, including, but not limited to ingredients, names, techniques, or recipes (collectively, “Feedback”). Feedback shall become the sole property of GOT and you shall and hereby do assign any rights in such Feedback to GOT. Gratitude Health, LLC shall own exclusive rights, including, without limitation, all intellectual property rights, in and
to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You further represent that any Feedback you provide is your own and does not infringe or misappropriate the rights of anyone, or otherwise breach any obligations you may have to anyone.
14. Indemnification
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Gratitude Health, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Gratitude Health Parties”), from and against all actual or alleged Gratitude Health, LLC Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Services, Content or Products, (b) any User Content you create, post, share or store on or through the Services or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, (e) your violation of the rights of another, and (f) any third party’s use or misuse of the Services or Products provided to you. You agree to promptly notify GOT of any third party Claims and cooperate with the Gratitude Health, LLC Parties in defending such Claims. You further agree that the Gratitude Health, LLC Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Gratitude Health, LLC.
15. Disclaimers
Gratitude Health, LLC and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of our and their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Gratitude Health and all such parties together, the “Gratitude Health Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services or any Products, and GOT Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The GOT Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services including, without limitation, any Products. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS-IS” and without any warranty of any
kind from the Gratitude Health, LLC Parties or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product).] THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. GRATITUDE ORGANIC TEA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SERVICES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Services (or any features or functionality of the Services) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof, or any affiliation therewith, by us.
16. Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GRATITUDE HEALTH, OT OR ANY OF THE OTHER GRATITUDE HEALTH PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM GOT, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO GRATITUDE HEALTH LLC’s RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF GRATITUDE ORGANIC TEA AND THE OTHER GOT PARTIES (JOINTLY) ARISING OUT OF
OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THE GOT MARKET EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF PRODUCT, OR ACCESS OR USE OF THE SERVICES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE GOT AND THE OTHER GOT PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE GOT AND THE GRATITUDE HEALTH, LLC PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH GOT PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
ACCESS TO THE GRATITUDE HEALTH OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF GRATITUDE HEALTH SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW
17. Modifications to the Services and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Services (or any features or parts thereof) or the provision of the Products at any time and without liability therefor.
18. Arbitration and Dispute Resolution
Most questions or concerns can be resolved quickly and satisfactorily by emailing us (sales@organicgratitude.com) or contacting us via another means as specified on our Services. Please read the following ARBITRATION AGREEMENT carefully because in the event that we are not able to resolve a dispute, you will be required to arbitrate certain disputes and claims with Gratitude Health, LLC and this arbitration agreement limits the manner in which you can seek relief from Gratitude Health, LLC. Both you and GOT acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Gratitude Health Parties are third-party beneficiaries of these Terms, and that upon your acceptance of
these Terms, Gratitude Health Parties will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
18.1 Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Florida. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
18.2 Costs of Arbitration. The Rules will govern payment of all arbitration fees. Gratitude Health, LLC will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Gratitude Health will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
18.3 Small Claims Court; Infringement. Either you or Gratitude Health, LLC, may assert claims, if they qualify, in small claims court in Florida or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
18.4 Waiver of Jury Trial. YOU AND GRATITUDE HEALTH, LLC WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and GRATITUDE HEALTH, LLC are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and GOT over whether to vacate or enforce an arbitration award, YOU AND GRATITUDE HEALTH WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
18.5 Waiver of Class or Consolidated Actions. 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. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor GOT is entitled to arbitration; instead, all claims and disputes will be resolved in a court as set forth in 18.8 below.
18.6 Batch Arbitrations. To increase efficiency of resolution, in the event 100 or more similar arbitration demands against Gratitude Health, presented by or with the assistance of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the
rules described above within a 30-day period, the arbitration provider shall (i) group the arbitration demands into batches of no more than 100 demands per batch (plus, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (ii) provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch. You agree to cooperate in good faith with Gratitude Health and the arbitration provider to implement such a batch approach to resolution and fees.
18.7 Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Gratitude Health, LlC., Attention: Legal; 5900 Australian Blvd., Ste 11, West Palm Beach, Fl 33407 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your Account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
18.8 Exclusive Venue. If you send the opt-out notice in 18.7, and/or in any circumstances where the foregoing arbitration agreement permits either you or Gratitude Health to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Gratitude Health agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Florida, or the federal district in which that county falls.
18.8 Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Gratitude Health, LLC.
19. Miscellaneous
These Terms constitute the entire agreement between you and Gratitude Health relating to your access to and use of the Services and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Gratitude Health, LLC. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of New York, without regard to the conflicts of laws provisions thereof. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Gratitude Health’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.