Table of ContentsDefinitions Part I (Consumers, Business Enterprise Users, and Individual Enterprise Users)
LAST MODIFIED: 6/30/2020
Thank you for using Grokker! Grokker, Inc. ("Grokker,” “us,” or “we”) offers expert videos and brings together a community of people who share a passion for mindfulness, yoga, fitness, and other pursuits. Except as specified below, all terms are applicable to all users. If anything is unclear or you have any questions please contact us at: email@example.com
These Terms of Service apply to all Consumers, Business Enterprise Users, and Individual Enterprise Users (Part I). Please note that if you are a Consumer or an Individual Enterprise User resident in the UK, additional and/or replacement provisions will also apply to you in the attached schedule (Part II).
You are a “Consumer” if you are an individual purchasing Grokker’s Service (defined below) for personal, family, or household purposes.
You are a “Business Enterprise User” if you are a business purchasing Grokker’s Service (defined below) as a benefit to your company’s employees.
You are an “Individual Enterprise User” if you are an individual accessing Grokker’s Service (defined below) for personal purposes as part of the benefits offered by your employer.“US” or “United States” means the United States of America. “UK” means the United Kingdom of Great Britain and Northern Ireland. “EU” means the European Union
PLEASE NOTE THAT (1) THESE TERMS OF SERVICE CONTAIN A DISPUTE RESOLUTION AND ARBITRATION AGREEMENT, INCLUDING CLASS ACTION WAIVER, THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO CLAIMS OR DISPUTES YOU MAY HAVE WITH GROKKER. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED (SEE SECTION 20. DISPUTE RESOLUTION – ARBITRATION AGREEMENT AND CLASS ACTION WAIVER) BELOW.
To ensure uninterrupted service, your Grokker account will automatically renew on your renewal date unless and until you cancel. Grokker’s automatic renewal billing terms and information on how to cancel can be found at Section 12. BILLING AND PAYMENT TERMS.
FOR UK RESIDENTS: IF YOU ARE A CONSUMER OR AN INDIVIDUAL ENTERPRISE USER RESIDENT IN THE UK SECTION 1 ABOVE IS SUBJECT TO THE PROVISIONS OF PART II BELOW AND PLEASE NOTE THAT SECTION 20 DOES NOT APPLY TO YOU AND YOU SHOULD REFER INSTEAD TO THE DISPUTE RESOLUTION PROVISIONS IN PART II BELOW.
Grokker provides Content through its website and through the Service that is copyrighted and/or trademarked work of Grokker or Grokker’s third-party licensors and suppliers or other users of the Content.
If you are a Consumer or Individual Enterprise User, subject to the terms and conditions of these Terms, and your compliance with these Terms, Grokker hereby grants you a limited, personal, non-exclusive, and non-transferable license to use and to display the Content and to use the Service, solely for your personal use. Except for the foregoing license, you have no other rights in the Service or any Content, and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Service or any Content in any manner.
Authorized users in the UK have certain mandatory user rights, including in relation to software interoperability, please contact us if you need more information about interoperability or any other rights (“Mandatory Rights”).
If you breach any of these Terms including those listed below, and subject to the Breach and Termination provisions for Consumers and Individual Enterprise Users in the UK set out in Part II, the above license will terminate automatically, you must immediately stop all access and use of the Service, and you must immediately destroy and cease all use of any downloaded or printed Content.
Grokker reserves the right to immediately terminate or restrict your account or your use of the Service or access to Content at any time, without notice or liability, if Grokker determines in its sole discretion that you have breached these Terms, violated any law, rule, or regulation, engaged in other inappropriate conduct, or for any other business reason. Grokker also reserves the right to terminate your account or your use of the Service or access to Content if such use places an undue burden on our networks or servers.
Grokker makes available software that allows you to access the Grokker.com website and the Service from mobile and set-top devices ("Native Application(s)"). To use a Native Application you must have a device that is compatible with the application. Grokker does not warrant that the Native Applications will be compatible with your particular device.
Grokker hereby grants to you a non-exclusive, non-transferable, revocable license to use the Native Applications. Subject to the Mandatory Rights of authorized users in the UK, you may not:
You acknowledge that Grokker may from time to time issue upgraded versions of the Native Applications and may automatically electronically upgrade the version of the Native Application that you are using on your device. You consent to such automatic upgrading on your device and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Native Application(s) or any copy thereof, and Grokker and its third-party licensors or suppliers retain all rights, titles, and interests in and to the Native Applications (and any copy of the Native Applications).
Standard carrier data charges may apply to your use of the Native Applications.
In using the Service, you must behave in a civil and respectful manner at all times. By using the Service, you agree not to:
Grokker has the right, but not the obligation, to monitor all conduct on and content submitted to the Service. Grokker reserves the right to alter, edit, remove, or refuse to post any content, in whole or in part, in its sole discretion or to satisfy or comply with applicable laws, regulations, and/or legal processes.
In addition to the general restrictions above, and subject to the Mandatory Rights of authorized users in the UK and, if you are a Consumer or an Individual Enterprise User resident in the UK, the Digital Content provisions in Part II below, the following restrictions and conditions apply specifically to your use of Content:
In order to access most features of the Service, you will have to create a Grokker account.
You agree to provide accurate and complete information when creating your account, and it is your responsibility to maintain and promptly update your account information to keep it true, accurate, current, and complete.
If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Grokker reserves the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof) at any time.
The following conditions apply to the use of your account and account password:
The following conditions apply to Content you submit on the Service:
If you send or transmit any communication, comment, question, suggestion, or related materials to Grokker, whether by letter, email, telephone, or otherwise, suggesting or recommending changes to the Service, including, without limitation, new features or functionality relating thereto (collectively, "Feedback"), all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all rights, title, and interests in, and Grokker is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Grokker is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
YOU AGREE THAT GROKKER WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY.
In using the Service, you may not submit Content that:
A. Free Trial Period
If you signed up for a free trial, you will not be charged for your use of the Service during the free trial period. You may cancel at any time during the free trial period to avoid any payments. To cancel, you may use any of the cancellation methods below. A cancellation will be effective immediately.
B. Automatic Renewals
In order to provide continuous service, Grokker automatically renews all paid subscriptions for the Service (“Paid Subscriptions”) on a monthly or annual basis (“Subscription Fee”) in accordance with the billing terms you agreed to at the time you signed up. Your subscription will automatically renew at the beginning of each billing period until you cancel at any time by using any of the cancellation methods below. A cancellation will be effective on the next renewal date of your subscription following your notice of cancellation, and you may continue to use the Service until that time.
In certain limited circumstances, we will offer subscriptions for a longer term (e.g., 3 months, 6 months, or even a year). These longer-term subscriptions are charged in full upon purchase, and automatically renew for the same duration as the initial subscription term you selected (e.g., 3 month subscriptions will automatically renew for three months, 6 month subscriptions will renew for six months, and so on). The amount due for the next renewal term will be due and immediately payable in full and charged as of the first day of such renewal term.
C. Billing Information
When you provide a payment method to Grokker, you are granting your express consent and are expressly authorizing us (and our designated payment processor) to automatically charge you each period for the subscription membership. If you provide a payment method and our charge results in an overdraft, chargeback, or other fee from your bank, you alone are responsible for that fee.
You must provide and at all times must maintain accurate, complete, and current billing information, including but not limited to your billing zip code, credit card number, and credit card expiration date. If you fail to disclose any such information, you agree that Grokker may continue charging you for any use of the Paid Subscription unless you have terminated your Paid Subscription as set forth herein. If you become aware of a potential breach of security to your billing information (such as credit card loss or theft), you must notify Grokker immediately.
If you do not pay on time or if Grokker cannot charge your credit card or other payment method for any reason, Grokker reserves the right to either suspend or terminate your access to the Service and terminate these Terms. You also agree that you will be responsible for all costs and expenses incurred by Grokker, such as court costs, collection fees, and attorney fees, incurred in connection with such collection efforts.
If your account is active and in good standing, you will be charged the Subscription Fee even if you never use the Service and you will not be eligible for refunds during a billing period. You may cancel your Paid Subscription at any time.
To cancel your account, simply go to the Membership Details section in your Account Settings. You may also cancel by telephone at +1-888-664-0886 or by emailing Grokker at firstname.lastname@example.org. In such case, your subscription will terminate at the end of the subscription term for which you have paid, and you will not receive any refund for any unused days of such subscription term. There are no refunds on subscriptions for billing periods that have already started. Each subscription and the rights and privileges provided to each user is personal and non-transferable.
E. Modifications to Service and Pricing
Grokker reserves the right at any time and from time to time to change, modify, add, remove, suspend, cancel, or discontinue any aspect of it subscriptions including the functionality, content, and/or availability of any features of such subscriptions at any time in Grokker’s sole discretion. If the Service you subscribed to is materially altered, you will receive advance notice at least thirty (30) days in advance, and the opportunity to cancel your subscription if you do not agree to the changes.
In addition, Grokker may modify its Subscription Fees from time to time. In the event the Subscription Fee for your Subscription Plan has been modified, and you are required to pay a different fee than at the time you entered into these Terms, you will be notified at least thirty (30) days before you are billed at the different rate at the email address for you on file and have the opportunity to cancel your account. If you do not cancel your subscription before the next billing renewal date (at the new rate), you will be deemed to have accepted the new fees.
A. Withholding Tax
If you are required under any applicable law, regulation, or government order to withhold any taxes on any amounts payable by you to Grokker under these Terms, then the amount payable shall be increased to such amount which, after making all required withholdings or deductions of taxes therefrom, will equal the amount payable hereunder had no such withholding taxes or deductions been required. For avoidance of doubt, such withheld amounts may not be claimed as a reduction or offset against any payments due to Grokker under these Terms. You shall make such withholdings or deductions and shall pay the full amount withheld or deducted to the appropriate government authorities according to applicable laws. You shall obtain and furnish to Grokker, within sixty (60) days of such a payment of taxes, official tax receipts or other evidence of payment of all such taxes. You shall be solely liable for, and shall indemnify and hold Grokker and its Affiliates harmless against, any penalties, interest and expenses incurred by or assessed against Grokker.
B. Value Added Taxes
The amounts payable under these Terms are exclusive of value added, goods and services, sales, or similar taxes. You are responsible for payment of all value added, goods and services, sales, or similar taxes, if any, levied on or deducted from any amounts payable to Grokker pursuant to these Terms. To the extent applicable law requires any such taxes to be paid by you directly to a governmental authority or to the extent a reverse charge mechanism is available and applicable to you, you must account for and pay such taxes promptly and receipts or other proofs of such payment shall be provided to Grokker upon Grokker’s request. If, however, Grokker has the legal obligation to pay taxes and is required or permitted to collect such taxes for which you are responsible under the preceding sentence, you shall promptly pay the taxes invoiced by Grokker unless you have furnished Grokker with valid tax exemption documentation regarding such taxes.
For UK Residents: If you are a Consumer resident in the UK the amounts payable will be expressed to you inclusive of VAT and any other mandatory local taxes.
Grokker is not responsible for any injuries that result from participating in the activities shown on the Service unless you are a user in the UK in which case Grokker does not exclude its liability for death or personal injury due to its negligence. You expressly waive and release any claim that you may have at any time for injury of any kind against Grokker, or any person or entity involved with Grokker, including without limitation its directors, principals, instructors, independent contractors, employees, agents, contractors, affiliates, and representatives, except if you are a Consumer or an Individual Enterprise User resident in the UK then the foregoing is replaced by the Liability provisions in Part II below.
By using the Service you represent that you understand that physical exercise involves strenuous physical movement, and that such activity carries the risk of injury whether physical or mental. You are responsible for exercising within your limits and seeking medical advice and attention as appropriate. Not all exercises are suitable for everyone. You understand that it is your responsibility to judge your physical and mental capabilities for such activities and to ensure that by participating in classes and activities from Grokker, you will not exceed your limits while performing such activity. You will select the appropriate level of classes for your skills and abilities, as well as for any mental or physical conditions and/or limitations you have.
It is advised that you seek the advice of a physician before beginning any physical exercise regimen, routine, or program, including participating in the activities shown on the Service, including the use of any suggested equipment shown in any of the Content. As with any exercise program, if at any point during your workout you begin to feel faint or dizzy or have physical discomfort, you should stop immediately.
You understand that from time to time instructors may suggest the use of equipment, physical adjustments, poses, moves, and instruction and it is your sole responsibility to determine if any such suggestions or comments are appropriate for your level of ability and physical and mental condition. All such suggestions and comments are not required to be performed by you and are carried out at your election while viewing Grokker videos and using the Service. Nothing contained in the Service should be construed as any form of medical advice or diagnosis.
Grokker, "BE A BETTER YOU" and the KK logo are trademarks of Grokker in the United States, the UK, and other countries. Other trademarks, names, and logos on Grokker’s website are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on Grokker’s website, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Grokker, Copyright © 2017 Grokker. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
All software that is provided to you through or as a part of the Service and related documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if you are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to US Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
Grokker respects the intellectual property rights of others, and we ask you to do the same. Grokker may, in appropriate circumstances and at our discretion, terminate the Service and/or access to Grokker’s website for users who infringe the intellectual property rights of others.
A. DMCA Copyright Notifications
Pursuant to the Digital Millennium Copyright Act (“DMCA”, found at 17 U.S.C. § 512), if you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our website, please provide Grokker’s designated agent the following information:
Grokker’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
Grokker, Inc. Attn: Copyright Infringement Agent 560 S. Winchester Blvd., Ste. 150 San Jose, CA 95128
Under the U.S. Copyright Act, 17 U.S.C. § 512(f), any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
B. DMCA Counter-Notifications
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to Grokker designated agent that includes all of the following information:
C. Termination of Repeat Infringers
Grokker reserves the right, in its sole discretion, to terminate the account or access of any user of our website and/or Service who is the subject of repeated DMCA or other infringement notifications.
YOU AGREE THAT YOUR USE OF THE SERVICE AND THE CONTENT SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, GROKKER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, IN CONNECTION WITH THE SERVICE AND CONTENT AND YOUR USE THEREOF. GROKKER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT OR THE CONTENT OF ANY SITES LINKED TO GROKKER’S WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY:
AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL:
The Service and Content are controlled and offered by Grokker from its facilities in the United States of America. Except as set out in these Terms of Service, Grokker makes no representations that the Service and Content are appropriate or available for use in other locations. Those who access or use the Service or Content from other jurisdictions do so at their own volition and are responsible for compliance with local law.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Grokker, its parent corporation, officers, directors, employees, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
For UK Residents: If you are a Consumer or an Individual Enterprise User resident in the UK, the indemnity provisions above, and those set out elsewhere in these Terms of Service, do not apply to you but you may still be held liable including after termination of these Terms of Service for loss, damage, and costs caused to Grokker or to others (including other users of the Grokker service) as a result of you breaching these Terms of Service including as a result of Content you submit to the Grokker Service or where your conduct is in breach of the Code of Conduct or if you breach the copyright, property, privacy or other rights of Grokker or others (including other users of the Grokker service) or if you use the Grokker Service in an unauthorized, inappropriate or unlawful way.
You may opt-out of this Arbitration Agreement and Class Action Waiver (“Arbitration Agreement”) by emailing us at email@example.com the following information: (1) your or your business’s name; (2) your address; and (3) a clear statement that you do not wish to resolve disputes with us through arbitration. Your decision to opt-out of this Arbitration Agreement will have no adverse effect on your relationship with us, but we must receive this opt-out request within 30 days from the date that you first consent to these Terms of Service. Any opt-out request received after this deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
UNLESS YOU OPT-OUT OF THESE ARBITRATION PROCEDURES AS SET FORTH ABOVE AND EXCEPT AS OTHERWISE DESCRIBED HEREIN:
YOU AND GROKKER EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED BELOW, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION, RATHER THAN IN COURT, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
You and Grokker agree to arbitrate – rather than litigate in court – any and all claims or Disputes that may arise between you and Grokker, as defined below.
For the purpose of this Arbitration Agreement the term “Grokker” means Grokker, Inc. and any of its parent companies or organizations, subsidiaries, affiliates, and each of their managers, owners, officers, directors, employees, or agents. The term “Dispute” means any claim or dispute that may arise out of or in any way relates to your relationship with Grokker, including without limitation regarding these Terms of Service, your use of the Service, or the Grokker services that we, our affiliates, and/or our service providers (on our behalf) may provide to you in connection with your use of the Service, including, without limitation, any Dispute based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability, or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. However, in no event shall this Arbitration Agreement prevent you, in your individual capacity, from filing or joining a complaint with any federal, state, or local government agency that is authorized by law to seek relief against Grokker on your behalf. The arbitration between you and Grokker will be binding, and judgment on the award rendered in the arbitration may be entered in any court having jurisdiction thereof.
Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their Disputes and potential Disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such Dispute(s) decided in a lawsuit, in court, by a judge or jury trial. This Arbitration Agreement provides that all Disputes between you and Grokker shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this Arbitration Agreement, you might otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is very limited.
The arbitrator’s authority is governed by these Terms of Service. You and Grokker agree that an arbitrator must follow and be governed by this Arbitration Agreement and may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to these Terms of Service. An arbitrator may award attorneys’ fees and costs if a court would be authorized to do so and may issue injunctive or declaratory relief if that relief is required or authorized by the applicable law, but that injunctive or declaratory relief may not extend beyond you and your dealings with us, and may not include class or collective action relief. Discovery may be limited in arbitration, and procedures are more streamlined than in court.
Notwithstanding this Arbitration Agreement, you and Grokker may bring appropriate claims against each other regarding Disputes in small claims court, if the claims fall within the small claims court’s jurisdiction, or, on an individual and not class or collective action basis, before any other federal, state, or local government agency authorized by law to hear your claims.
Any Dispute relating in any way to your visit to https://grokker.com or your use of the Service shall be submitted to confidential arbitration in San Jose, California, or in the federal judicial district in which you reside, except that, to the extent you have in any manner violated or threatened to violate Grokker’s intellectual property rights, Grokker may seek injunctive or other appropriate relief in any federal or state court in San Jose, California, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this Arbitration Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Arbitration Agreement shall be joined to an arbitration involving any other party subject to this Arbitration Agreement, whether through class arbitration, collective action, consolidated proceedings, or otherwise.
B. Class Action Waiver
You and Grokker agree that all Disputes between you and Grokker will be arbitrated individually, and that there will be no class, representative, or consolidated actions in arbitration. If you or we bring a claim or Dispute in small claims court, the class action waiver will apply, and neither of the parties can bring a claim on a class, representative, or consolidated basis. Furthermore, neither you nor Grokker may participate in a class or representative action as a class member if the class action asserts claims or Disputes that would fall within the scope of this Arbitration Agreement if they were directly asserted by you or us. Notwithstanding the foregoing, this Arbitration Agreement shall not prohibit you or Grokker from participating solely in your individual capacity in any judgment or settlement in any litigation brought by a federal, state, or local government on behalf of you or us, excluding litigation brought by any relator or party in its capacity as a private attorney general.
We both agree that this Class Action Waiver is an essential part of our Arbitration Agreement and that, if this Class Action Waiver is found to be unenforceable by any court or arbitrator, then the entire Arbitration Agreement set forth in this section will not apply to any claim or Dispute between you and us. This Class Action Waiver may not be severed from our Arbitration Agreement.
C. Informal Dispute Resolution
You and Grokker agree to try to resolve Disputes informally before resorting to arbitration. If the Dispute cannot be resolved by telephone, you agree to notify us of the Dispute by sending a written description of your claim to Grokker, Inc. at 560 S. Winchester Blvd., Suite 150, San Jose, CA 95128, so that we can attempt to resolve it with you. If we do not satisfactorily resolve your Dispute within thirty (30) calendar days of receiving notice of it, then you may pursue the Dispute in arbitration. Neither you nor we may initiate arbitration without first providing the other notice of the Dispute and following the Informal Dispute Resolution procedure provided in this paragraph.
D. Arbitration Procedures
If the Dispute is not resolved by the Informal Dispute Resolution procedure described above, then either you or Grokker may initiate arbitration proceedings. You and Grokker agree that this website and your use of Grokker’s Service affects interstate commerce and that the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., applies. All arbitrations shall be conducted by the American Arbitration Association (“AAA”), and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a representative, class, or consolidated arbitration. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement.
The AAA’s rules are available on its website at www.adr.org or by calling 1-800-778-7879. If the Dispute asserted in arbitration is for less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply. If the Dispute asserted is for $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. If there is a conflict between the AAA’s rules and this Arbitration Agreement, this Arbitration Agreement shall control. To initiate arbitration, you must send a letter requesting arbitration and describing your Dispute and any claims for relief to Grokker, Inc. at 560 S. Winchester Blvd., Suite 150, San Jose, CA 95128. You must also comply with the AAA’s rules regarding initiation of arbitration. We will pay all filing fees and costs for commencement of an arbitration, but you will be responsible for your own attorneys’ fees and costs unless otherwise determined by the arbitrator pursuant to the terms of this Arbitration Agreement or applicable law. We will not seek to recover our fees and costs from you in the arbitration unless your claim has been determined to be frivolous. If you are successful in the arbitration, we will pay your reasonable attorney’s fees and costs. If you obtain an award from the arbitrator greater than our last written settlement offer, we will pay you $5,000 in addition to what you have been awarded in the arbitration. The arbitration will be held in a mutually convenient location, which may include San Jose, California, or the federal judicial district within which you reside. If you seek less than $10,000, then you may choose to hold the arbitration in person, via phone, or to have it decided based on written submissions.
E. Arbitration Award
The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, except as limited by other provisions of these Terms, and will not have the power to award relief to, against, or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the FAA or applicable state law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.
For UK Residents: If you are a Consumer or an Individual Enterprise User resident in the UK Section 20 above does not apply to you and you should refer to the Dispute Resolution provisions in Part II below.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Grokker without restriction.
By using the Service, you consent to receiving electronic communications from Grokker. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Service. These electronic communications are part of your relationship with Grokker. To the extent allowed by law, you agree that any notices, agreements, disclosures, or other communications that Grokker sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.
These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles, and any claim or Dispute between you and Grokker that arises in whole or in part from the Service shall be decided under California law.
No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Grokker's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability, and general provisions shall survive any termination of these Terms.
Maintaining the security and integrity of the Grokker Service is necessary to enable all our users to use it safely and effectively. Grokker agrees to use reasonable skill and care in protecting your account but you may be held responsible for unauthorized use of your account to the extent that this is due to your misuse including if you do not take reasonable care in protecting your password and user account.
If you breach any of these Terms of Service including as a result of Content you submit to the Grokker Service or where your conduct is in breach of the Code of Conduct, Grokker will give you notice and allow an opportunity to respond before Grokker exercises its rights to remove Content, suspend or terminate access or its other remedies but it does not have to do this if: (a) your breach is serious or repeated; or (b) this may expose Grokker or others to legal liability; harm Grokker or others (including other users of the Grokker Service); compromise or interfere with the security or integrity of the Grokker Service or Grokker’s systems or operations; or to the extent Grokker is restricted or prevented from doing so for technical, operational or legal reasons.
If you are a Consumer resident in the UK purchasing access to the Grokker Service please note the following provisions:
If you are a Consumer resident in the UK purchasing access to the Grokker Service please note that UK law provides that digital content must be as described, fit for purpose, and of satisfactory quality. If your digital content is faulty, you are entitled to a repair or a replacement. If the fault cannot be fixed, or if it has not been fixed within a reasonable time and without significant inconvenience, you can get some, or all of your money back.
If you are a Consumer resident in the UK purchasing access to the Grokker Service or you are an Individual Enterprise User resident in the UK please note that UK law provides, if you can show a fault with digital content has damaged your device and we have not used reasonable care and skill, you may be entitled to a repair or compensation.
This is a summary of some of your key rights. For detailed information from Citizens Advice, please visit citizensadvice.org.uk or call 03454 04 05 06.
These Terms of Service are governed by the laws of California and you and Grokker agree to submit to the non-exclusive jurisdiction of the Californian courts. This means that if you or we are able to bring a legal action relating to these Terms of Service we can do this in a court located in California, but you or we may also bring an action in another country if this is accepted by its courts. If you are a Consumer or Individual Enterprise User resident in the UK then such a court is likely to be that part of the UK in which you live and although California law will still apply it will be subject to any mandatory local law applicable in your country of residence.
If you are not happy with the way Grokker deals with any disagreement then you and we may agree to refer the matter to mediation or arbitration but you and we are not restricted from bringing court proceedings. The European Commission provides for an online dispute resolution platform, which you can access here: http://ec.europa.eu/consumers/odr/. If you would like to bring a matter to our attention, please e-mail Grokker at firstname.lastname@example.org. Grokker is not obliged nor willing to participate in dispute settlement proceedings before a consumer arbitration board or scheme.
If you are a Consumer resident in the UK purchasing access to the Grokker Service or you are an Individual Enterprise User resident in the UK, you are using the Grokker Service in a private capacity, and so Grokker shall not in any event be liable to you for business-related loss, damage, or costs such as lost data, lost profits, or business interruption.
Grokker will use reasonable skill and care in providing the Grokker Service in a secure and reliable way but Grokker shall have no liability for any loss, damage, or costs in relation to the Grokker Service: (a) due to your own fault; (b) due to a third party unconnected with our own performance; (c) due to any other events which are outside our or our suppliers' control even if we or they have taken reasonable care; or (d) that are not reasonably foreseeable by you and us at the time of entering into these Terms of Service.
We do not however limit or exclude our liability to you or anyone else in relation to the Grokker Service where this is prohibited by law including for death or personal injury caused by our negligence or for our fraud or fraudulent misrepresentation.
If you breach any provision of these Terms of Service and Grokker does not take any action against you, we may still take action against you later or if you breach the same provision on another occasion or if you breach a different provision.
We intend to rely upon the written terms set out in these Terms of Service (as may be amended in accordance with the Terms of Service) as the entire understanding between us relating to Grokker’s Service. If you and we agree any other changes, please make sure that you request that these are confirmed in writing. That way we can avoid any problems surrounding what we or you are expected to do in relation to Grokker’s Service.
Only you or Grokker have the right to enforce any provision under these Terms of Service.
We may transfer our rights and obligations under these Terms of Service to another organisation, and we will always notify you in writing if this happens, but this will not affect your rights or our obligations under these Terms of Service. We will wherever possible provide you with prior notice of this.