These Terms and Conditions were last updated on January 16, 2023.  

Grouper
Member Terms of Service

These Member Terms of Service (“Terms”), and the policies and other documents referenced in these Terms, together form an agreement (“Agreement”) between you (“you” and “your”) and Element3 Health, Inc. d/b/a Grouper, a Delaware corporation with its principal office at 501 Boylston Street, Boston, MA 02116 (“Grouper,” “we,” “us,” or “our”).  

This website is part of a platform offered by Grouper (the “Platform”) providing registered users of the Platform (“Members”) with connections to a network of activity clubs (“Clubs”) as well as other additional services, resources, and offerings offered through the Platform (collectively, our “Offerings”).  Grouper is willing to allow you to become a Member and access and use the Platform and Offerings if you agree to be bound by this Agreement.  

This Agreement will form a binding legal agreement between you and Grouper as of the date you first accept this Agreement, including electronically (the “Effective Date”).  You and Grouper are each a party to this Agreement and together are the parties to this Agreement.  

PLEASE READ THIS AGREEMENT CAREFULLY.  ALL USE OF THE PLATFORM AND OFFERINGS IS SUBJECT TO YOUR COMPLIANCE WITH THIS AGREEMENT.  BY ACCESSING OR USING THE PLATFORM OR OFFERINGS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT.  IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE PLATFORM OR OFFERINGS.  

BY ENTERING INTO THIS AGREEMENT, YOU MAY BE WAIVING CERTAIN RIGHTS.  IN PARTICULAR, THIS AGREEMENT CONTAINS A GENERAL WAIVER AND RELEASE OF LIABILITY (IN THE SECTION BELOW ENTITLED “RELEASE OF LIABILITY”).  IN ADDITION, THIS AGREEMENT INCLUDES PROVISIONS PROVIDING FOR MANDATORY BINDING ARBITRATION AND WAIVER OF JURY TRIALS (IN THE SECTION BELOW TITLED “DISPUTE RESOLUTION”), WHICH LIMIT YOUR RIGHTS TO BRING AN ACTION IN COURT AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.  

  • TERM.  This Agreement is effective as of the Effective Date and will continue until terminated as set forth herein.  
  • SCOPE OF THIS AGREEMENT.  This Agreement generally applies to your access to and use of the Platform and Offerings.  Unless otherwise specified in this Agreement, all access to and use of the Platform and Offerings by you or on your behalf is subject to this Agreement.  
  • THIRD PARTY OFFERINGS.  The Platform may provide you with access to Offerings provided by third parties (“Third Party Offerings”).  Grouper does not operate, control, or endorse any Third Party Offerings.  Third Party Offerings are offered for your convenience and you assume sole responsibility for your use of any Third Party Offering.  You may be required to agree to additional terms and conditions applicable to a Third Party Offering (“Third Party Terms”).  Any Third Party Terms shall control only as to your use the Third Party Offering covered by those Third Party Terms and the terms of this Agreement will continue to control in all other respects with respect to the Platform and all Content and Offerings.  
  • ADDITIONAL GROUPER AGREEMENTS.  In addition to this Agreement, if you enter into any other agreement with Grouper or any of its affiliates (an “Additional Grouper Agreement”), the Additional Grouper Agreement will remain applicable between you and Grouper (or such affiliate, as applicable) as stated in that Additional Grouper Agreement, provided that the terms of this Agreement will control with respect to your access to and use of the Platform and all Offerings.  
  • ELIGIBILITY.  The Platform and all Offerings are for use by individuals 18 years of age and older for their own personal use.  Additional eligibility requirements will apply for individual Clubs and Offerings as stated on the Platform or as communicated by Grouper or individual Clubs.  If you do not meet the eligibility requirements for the Platform, the Platform is not for you and you are not permitted to become a Member or access or use the Platform.  Even if you do become a Member, if you do not meet the eligibility requirements for any individual Clubs or Offerings, you may not join those Clubs or access or use those Offerings.  
  • ACCOUNT.  
  • Your Account.  Before you can become a Member of the Platform, you will be required to establish an account on the Platform (your “Account”).  All Accounts are issued at the sole discretion of Grouper.  
  • Account ID.  Your Account (and any user name and password (“Account ID”) for your Account) are personal in nature.  Your Account is for your own personal use and your Account ID may be used only by you alone.  You may not transfer your Account to someone else.  You also may not provide your Account ID to anyone else or give a third party access your Account.  You will ensure the security and confidentiality of your Account ID and will notify Grouper immediately if any Account ID is lost, stolen or otherwise compromised.  
  • Responsibility.  You are solely responsible for your Account and all use of the Platform and any Offerings through your Account.  You are fully responsible for all actions taken through your Account (or using your Account ID) and for any liabilities and damages incurred through the use of your Account (or your Account ID), whether lawful or unlawful.  
  • Registration.  In connection with establishing your Account and accessing the Platform, you will be asked to submit certain information about yourself (“Registration Information”).  You agree that (a) all Registration Information you provide will be true and complete, and (b) you will promptly update your Registration Information to keep it accurate and current.  You may not (i) select or use an Account ID of another person with the intent to impersonate that person; and (ii) use an Account ID that Grouper, in its sole discretion, deems offensive or misleading.
  • ACCESS TO THE PLATFORM.  Subject to your compliance with this Agreement, during the term of this Agreement, Grouper will permit you to access the Platform and the Offerings made available to you through the Platform solely for your own personal use in accordance with the terms of this Agreement.  
  • MODIFICATIONS TO THE PLATFORM.  Grouper reserves the right to modify the Platform or your access to any Clubs or Offerings at any time, by making those modifications available to you as part of the Platform, with or without notice.  
  • INTERACTIONS WITH OTHER MEMBERS.  The Platform will allow you to link, connect, interact, and communicate with other Members through the Platform.  By linking, connecting, interacting, or communicating with other Members, you are agreeing to allow those Members to link, connect, interact, and communicate directly with you through the Platform.  You are solely responsible for all communications between you and any other Member through the Platform.  When you link, connect, interact, or communicate with another Member through the Platform, you consent and agree that Grouper may disclose to that Member any Content that you elect to provide to them through the Platform, including any personal information you may provide.  
  • USE OF CONTENT ON THE PLATFORM.  The Platform and Offerings offer a variety of information, data, and content (“Content”).  Content may include text, audio, video, photographs, illustrations, graphics and other content.  The Content made available through the Platform and Offerings includes Content provided by Grouper and its providers (“Platform Content”).  All Platform Content is for informational purposes only.  Grouper is not responsible for any errors or omissions in any Platform Content.  You are solely responsible for verifying the accuracy and completeness of all Platform Content, as well as the applicability and suitability of any Platform Content to your intended use.  Subject to your compliance with this Agreement, you may access the Platform Content made available to you through the Platform solely for your own personal use in connection with your use of the Platform and Offerings.  
  • CLUBS.  
  • Access to Clubs.  The Clubs available to you through the Platform are at the sole discretion of Grouper and those Clubs.  We do not guarantee or commit that the Platform will provide you with access to any specific Clubs.  The Clubs available through the Platform, or your ability to access and participate in those Clubs, may change at any time, with or without notice.  Any changes to Clubs are effective when made through Platform or otherwise communicated to you.  
  • Club Requirements.  The requirements for participation in any Club are set by each Club and may change at any time in the discretion of each Club.  Grouper does not control the requirements for participation in any Club and takes no responsibility for those requirements.  We do not guarantee or commit that you will find Clubs through the Platform or that you will meet the requirements for participation in any Club.  
  • Participation in Clubs.  Your decision to participate in any Club is at your sole discretion.  We do not conduct or require background checks on Clubs and we do not attempt to verify the truth or accuracy of statements made by Clubs. We make no representations or warranties concerning the Clubs, their activities, or their interactions with you.
  • Club Terms.  Prior to allowing you to join and participate in a Club, that Club may require you to agree to certain terms and conditions or other agreements or arrangements with the Club (“Club Terms”).  All Club Terms are established by each Club in its sole discretion.  Grouper does not control any Club Terms.  Grouper is not a party to any Club Terms between you and any Club.  You are solely responsible to reading and understanding the Club Terms applicable to each Club you join.  
  • RELEASE OF LIABILITY.  
  • General Release.  You acknowledge that some Club activities may present inherent dangers, such as the risk of illness, bodily injury, disability, or death.  By participating in any Club activities you acknowledge and agree that you have freely chosen to assume these risks.  To the fullest extent permitted by law, on behalf of yourself and your heirs, estate, or any other person or entity that could or may make a claim by or through you or on your behalf, you agree to and hereby do fully and forever release and discharge Grouper and its officers, directors, shareholders, agents, employees, consultants, parent entities, affiliates, subsidiaries, sponsors, successors and assigns (“Grouper Parties”) from any and all rights, claims, demands, liabilities, obligations, causes of action, suits, injuries, debts, liabilities, or damages of whatever nature or kind, whether absolute or contingent, direct or indirect, known or unknown, (collectively, “Claims”), arising out of or in any way connected with your participation in or interactions with any Clubs, including your participation in any Club activities and any dues, fees, or other amounts incurred associated therewith.  You also covenant not to sue or otherwise consent to or participate in any action against any of the Grouper Parties for or based on any Claim released in this Section.  The laws in some states do not allow this release, so these limits may not apply to you.
  • Waiver of California Civil Code Section 1542.  The following additional waiver shall apply if applicable:  Each party understands that this Agreement releases any and all claims against the Grouper Parties for Claims that you may suffered in connection your participation in or interactions with any Clubs, whether or not those injuries or damages are apparent or foreseeable at the present time.  You acknowledge that you may hereafter discover facts in addition to or different from those which you now know or believe to be true with respect to the subject matter of this Agreement, but that you intend to and do hereby fully, finally, and forever settle, release, and discharge all Claims without regard to the subsequent discovery or existence of different or additional facts.  You expressly waive the provisions of California Civil Code Section 1542 (and any similar law in California or any other jurisdiction), which provides:  A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.  
  • BENEFITS.  Your health insurance provider (“Provider”) may, from time to time, undertake to pay some or all of the dues or other fees charged by the Clubs to join and participate in through the Platform (“Benefits”).  Any Benefits available to you are established solely by your Provider in its sole discretion.  We do not guarantee or commit that you will be eligible for or receive any Benefits.  The Benefits available to you may change at any time, with or without notice.  Any changes to Benefits are effective when made through Platform or otherwise communicated to you.  You agree to provide all communication and cooperation we may request to support any Benefit, including responding to assessments and surveys, as well as timely reporting your participation in any Clubs or Club activities.  You acknowledge and agree that any obligation to pay any Benefits is also contingent upon you meeting all other requirements for those Benefits.  We may suspend or terminate any payment of any Benefit at any time, with or without notice, and without liability, if you fail to provide such reasonable communication and cooperation or fail to meet any other requirements for that Benefit.  
  • YOUR INFORMATION.  In connection with your access to and use of the Platform and Offerings and your participation in any Clubs, Grouper may collect and obtain certain information about you, including personally identifiable information (“Your Information”).  While the Grouper Privacy Policy is not part of this Agreement, you consent to the use and disclosure of Your Information as described in the Grouper Privacy Policy.  In addition to the permissions and consents granted to Grouper under the Grouper Privacy Policy, you agree and consent to Grouper using Your Information to:
  • Connect you with Clubs.
  • Contact and interact with Clubs on your behalf.
  • Fulfill your requests and facilitate your participation in Clubs.
  • Provider(s) you with access to eligible Benefits.
  • Contact and interact with your Provider(s) to facilitate your Benefits.
  • Otherwise provide the Offerings to you.
  • Provide notices and communications to you regarding the Platform, Offerings, and Clubs
  • Improve our Platform and Offerings.
  • Comply with applicable law or any court order or legal process, including to respond to a government or regulatory request.
  • As we believe necessary or appropriate to protect the rights, property, or safety of Grouper, our Members, or any Clubs, Providers or third-parties.  

You understand that we may collect Your Information directly from you as well as from Clubs, your Provider(s), and other third party sources.  You agree that we may disclose Your Information as described in this Agreement and through the Platform, including with Clubs, your Provider(s), our subsidiaries and affiliates, our contractors and third-party service providers, and other third parties we use to support our business (provided those third parties are bound by contractual obligations to use Your Information only for the purposes for which we disclose it to them).  You agree we may also use and disclose Your Information to any other individual or entity for any other purpose for which you provide your permission or consent.  You represent and warrant that you have all rights, permissions, and authorizations necessary to make Your Information available to Grouper for these purposes and for all purposes specified in the Grouper Privacy Policy, and you grant Grouper all rights, permissions, and authorizations to use Your Information for all such purposes.  Grouper is not responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of Your Information.  

  • COMMUNICATIONS.  You agree that we may communicate with you through the Platform and through any email address or telephone number you provide to us.  By providing your email address or telephone number to us, you consent to receive communications from us through that email address or telephone number relating to the Platform, Offerings, Clubs, and your Provider(s).  Communications may include text messages (SMS and MMS), telephone calls, and voice messages.  The content of these communications may include informational, advertising, or marketing communications, including, from or on behalf of Grouper or any Club or Provider.  You authorize us to send these communications using automated means, including automatic telephone dialing systems, and/or using any system using artificial or prerecorded voice messages.  You understand that your consent is not a condition for any Offering.  You understand that the frequency of communications may vary and that message and data rates may apply.  You further understand that you may revoke my consent at any time by following the instructions provided in any communication.  
  • TERMINATION.  This Agreement may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under this Agreement.  Upon termination of this Agreement for any reason: (1) all rights granted to you under this Agreement will terminate; (2) you will immediately cease all use of and access to the Platform and all Offerings; (4) Grouper may, in its sole discretion, disable your Account on the Platform.  The relevant portions of the following Sections will survive termination of this Agreement for any reason: Release of Liability, Your Information, Termination, Representations and Warranties, Disclaimers, Indemnity, Limitation on Liability, Confidentiality, Disputes, Governing Law and Venue, Notices and Additional Terms.  
  • SUSPENSION.  Without limiting Grouper’s right to terminate this Agreement, Grouper may also suspend your access to your Account, the Platform, and the Offerings and Content (including your Member Content), with or without notice to you, upon any actual, threatened, or suspected breach of this Agreement or applicable Law or upon any other conduct deemed by Grouper to be inappropriate or detrimental to the Platform or Offerings, Grouper or any Grouper provider, any other Member, or any third party.  
  • PLATFORM TECHNOLOGY.  The Platform and Offerings, and the software, databases, hardware, and other technology used by or on behalf of Grouper to operate the Platform and Offerings, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), constitute the valuable trade secrets of Grouper.  You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance or functionality of the Technology; or (9) interfere with the operation or hosting of the Technology.  
  • OWNERSHIP.  Grouper retains all right, title and interest, including all intellectual property rights, in and to the Platform, Offerings, Technology, and all Platform Content, as well as any additions, improvements, updates and modifications thereto (“Grouper Property”).  You receive no ownership interest in or to the Grouper Property and you are not granted any right or license to use the Grouper Property itself, apart from your ability to access the Platform, Offerings, and Content under this Agreement.  The Grouper name, logo and all product and service names associated with the Platform, Offerings, and Content are trademarks of Grouper and its licensors and providers and you are granted no right or license to use them.  
  • REPRESENTATIONS AND WARRANTIES.  Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement.  
  • DISCLAIMERS.  THE PLATFORM AND OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  GROUPER AND ITS PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF ANY OFFERINGS OR CONTENT AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE CONTENT OR OTHER DATA OR INFORMATION PROVIDED THROUGH THE PLATFORM OR ANY OFFERING OR BY ANY CLUB.  GROUPER AND ITS PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, OFFERINGS, AND CONTENT, AS WELL AS ANY CLUB, CLUB ACTIVITIES OR YOUR DEALINGS WITH ANY CLUBS OR OTHER THIRD PARTIES, AND OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GROUPER, ITS EMPLOYEES, PROVIDERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.  
  • INDEMNITY.  You covenant and agree to indemnify, defend, and hold harmless Grouper and its officers, directors, shareholders, parents, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from and against any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result or arising in any manner from: (1) your access to or use of the Platform or Offerings; (2) any Club or your participation in any Club or any Club activities; (3) your breach of any representation, warranty, or other provision of this Agreement; and (4) your violation of any law, statute, ordinance, or regulation, or the rights of a third party.  Grouper will provide you with notice of any such claim or allegation, and Grouper will have the right to participate in the defense of any such claim at its expense.  
  • LIMITATION ON LIABILITY.  GROUPER AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM OR OFFERINGS, OR ANY CLUB, CLUB ACTIVITIES OR YOUR DEALINGS WITH ANY CLUBS OR ANY OTHER THIRD PARTIES, OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, EVEN IF GROUPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.  GROUPER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL ACCESS TO AND USE OF THE PLATFORM AND OFFERINGS, AS WELL AS ANY CLUB, CLUB ACTIVITIES OR YOUR DEALINGS WITH ANY CLUBS OR ANY OTHER THIRD PARTIES, OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100.  YOU AGREE THAT GROUPER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.  IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, GROUPER’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  
  • CONFIDENTIALITY.  For purposes of this Agreement, “Confidential Information” means the Platform Content and all other Technology, and all other documentation, information, data, and materials made available to you regarding any Technology, regardless of form or format, including all copies thereof.  You will use and disclose the Confidential Information only if expressly permitted herein or in an Additional Grouper Agreement.  Unless you are permitted to do so, you will not use any Confidential Information.  You will not otherwise use or disclose any Confidential Information without Grouper’s prior written consent.  You will treat all Confidential Information with the same degree of care as you treats your own confidential information which, in no event, will be less than reasonable care.  
  • FEEDBACK.  Any information, content, or materials you provide to us through the Platform, including any feedback, comments, or suggestions relating to the use, operation, performance, functionality, or features of the Platform, Offerings, or Content (“Feedback”) is entirely voluntary.  We will be free to use any Feedback as we see fit for any purpose and without any without notice, payment, or other obligation to you.  All use of any Feedback will be at our sole discretion.
  • CLAIMS OF INFRINGEMENT.  Grouper respects your copyrights and other intellectual property rights and those of other third parties.  If you believe in good faith that your copyrighted work has been reproduced on the Platform without your authorization in a way that constitutes copyright infringement, you may notify our designated copyright agent by mail to:

Element3 Health, Inc. d/b/a Grouper
Attn: Copyright Infringement Agent
legal@hellogrouper.com

Please provide the following information to Grouper’s Copyright Infringement Agent: (1) the identity of the infringed work, and of the allegedly infringing work; (2) your name, address, daytime phone number, and email address, if available; (3) a statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner; and (5) your electronic or physical signature.  

  • DISPUTE RESOLUTION. 
  • Disputes.  Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section.  
  • Binding Arbitration.  If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, then at the request of either party such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association (“AAA”) then in effect (the “Rules”).  Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules.  The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties.  If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules.  The arbitration will be conducted exclusively in the English language at a site specified by Grouper in Denver, Colorado U.S.A.  The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator.  The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party.  Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof.  Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.  
  • CONSENT TO JURISDICTION.  Subject to the previous Section titled “Binding Arbitration”, each party will bring any action or proceeding relating to any Dispute or otherwise arising from or relating to this Agreement exclusively in a state or federal court located in Denver, Colorado U.S.A.  You irrevocably consent and submit to the personal jurisdiction and venue of such state and federal courts for any such suit or action.  You waive any right that you may have to object to the personal jurisdiction or venue of such state and federal courts.  
  • Waiver of Collective Action.  YOU AGREE THAT YOU WILL PURSUE ANY CLAIM OR LAWSUIT RELATED TO ANY DISPUTE OR OTHERWISE ARISING FROM OR IN ANY WAY RELATING TO THIS AGREEMENT, THE PLATFORM, CONTENT, OR OFFERINGS, OR YOUR USE THEREOF AS AN INDIVIDUAL, AND WILL NOT LEAD, JOIN, OR SERVE AS A REPRESENTATIVE OR MEMBER OF A CLASS OR GROUP OF PERSONS BRINGING SUCH A CLAIM OR LAWSUIT.  
  • Waiver of Jury Trial.  THE PARTIES DESIRE TO AVOID THE TIME AND EXPENSE RELATING TO A JURY TRIAL OF ANY DISPUTE.  ACCORDINGLY, THE PARTIES, FOR THEMSELVES AND THEIR SUCCESSORS AND ASSIGNS, HEREBY WAIVE TRIAL BY JURY OF ANY DISPUTE. THE PARTIES ACKNOWLEDGE THAT THIS WAIVER IS KNOWINGLY, FREELY, AND VOLUNTARILY GIVEN, IS DESIRED BY BOTH PARTIES AND IS IN THE BEST INTERESTS OF BOTH PARTIES.  
  • GOVERNING LAW.  The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado without regard to any conflict of laws rules that may direct the application of the laws of another jurisdiction.  
  • NOTICES.  Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to Grouper by postal mail to the address for Grouper listed on the Platform.  Grouper may provide you with any notices required or allowed under this Agreement by sending you an email to any email address you provide to Grouper in connection with your Account, provided that in the case of any notice applicable both to you and other Members of the Platform, Grouper may instead provide such notice by posting the notice on the Platform.  Notices provided to Grouper will be deemed given when actually received by Grouper.  Notice provided to you will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid. 
  • FORCE MAJEURE.  Grouper will not be responsible for failure or delay in the performance of any obligation under this Agreement to the extent such failure or delay is due to acts of God or governmental authority, war, terrorism, strikes, boycotts, quarantine, pandemic, labor disputes, fire or other loss of facilities, accident, or any other event beyond its control.  Grouper will use commercially reasonable efforts to notify you of any such event. 
  • THIRD PARTY SITES.  If we provide you with links to websites or other online resources, these links are provided for your convenience only. We have no control over the contents of those websites and resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites or resources, you do so entirely at your own risk (and subject to the terms and conditions of use for such websites).
  • ENTIRE AGREEMENT.  Unless otherwise amended as provided herein, this Agreement will exclusively govern your access to and use of the Platform and Offerings, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding your access to and use of the Platform and Offerings.  Grouper may, in its sole discretion, modify this Agreement from time to time.  Grouper will use commercially reasonable efforts to provide notice of any material modifications to this Agreement.  Notice may be provided to you directly or to all Members through the Platform.  Unless we make a change for legal or administrative reasons, any modification to this Agreement will be effective 10 days following posting of the modified version of this Agreement to the Platform.  Your continued access to the Platform or Offerings following that date constitutes your acceptance of, and agreement to be bound by, any modified Agreement.  Except for the foregoing, this Agreement may be amended or modified only by a writing signed by both parties.  
  • ASSIGNMENT AND TRANSFER.  This Agreement is personal to you and you may not assign or transfer this Agreement or any of your rights or obligations under this Agreement, whether through operation of law or otherwise, without the prior written approval of Grouper.  Any assignment in violation of the foregoing will be null and void.  Grouper may assign or transfer this Agreement to any party that assumes Grouper’s obligations hereunder.  In connection with any such assignment or transfer, including in any acquisition, merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of Grouper assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, you also consent and agree that we may also transfer any part of Your Information in connection with such assignment or transfer.  
  • ADDITIONAL TERMS.  Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.  The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.  All waivers by Grouper under this Agreement must be in writing or later acknowledged by Grouper in writing.  Any waiver or failure by Grouper to enforce any provision of this Agreement on one occasion will not be deemed a waiver by Grouper of any other provision or of such provision on any other occasion.  If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force.  The prevailing party in any lawsuit or arbitration proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.  The Platform, Offerings, or Content may contain links to third party sites that are not under the control of Grouper.  Grouper is not responsible for any content on any linked site and your access any third party site from the Platform, Offerings, or Content at your own risk.  These third party sites may have their own separate terms and conditions and privacy policy.  We encourage you to read all applicable terms and conditions before accessing any third party site.  Grouper may reference you as a user of the Platform and use your name and logo, as applicable, in listings of users of the Platform appearing on the Platform and for other marketing and promotional purposes relating to the Platform, Offerings, or Content.  No term of this Agreement will be construed to confer any third party beneficiary rights on any non-party.  Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable Law.  The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.”