Last updated June 26, 2019
1. The information we collect
1.1. Personal Information
When you sign up to become a Buyer, order a gift subscription, enter a contest, promotion, or sweepstakes, or sign up to receive our newsletters, you will be required to provide us with personal information about yourself (collectively, the “Personal Information”). Such Personal Information for Buyers may include your name, e-mail address, mailing address, and phone number. We do not collect any Personal Information from you when you use the Services unless you provide us with the Personal Information voluntarily.
1.2. Billing information
1.3. Other Information
2. The information collected by or through third-party advertising companies
3. Accessing and Modifying Personal Information and Communication Preferences
If you have registered for the Services, you may access, review, and make changes to your Personal Information and Billing Information by following the instructions found on the Platform. In addition, you may manage your receipt of marketing and non-transactional communications by clicking on the “unsubscribe” link located on the bottom of any Gem Health Inc marketing email. Buyers cannot opt out of receiving transactional e-mails related to their account. We will use commercially reasonable efforts to process unsubscribe requests in a timely manner. You should be aware, however, that it is not always possible to completely remove or modify information in our subscription databases.
4. How We Use and Share the Information
We use the Personal Information, the Billing Information, and the Other Information to process transactions; provide you the Services; solicit your feedback; inform you about the GEM products or other related products made available through the Sites (collectively, the “Products”), services, upcoming events, recipes, and special promotions and those of our third-party marketing partners; administer and process contests, promotions, and sweepstakes; and improve our Services to you. Also, we may share Personal Information, the Billing Information, and/or Other Information as described below. We employ other companies and individuals to perform functions on our behalf. Examples include food services, delivery services, marketing assistance, information technology support, and customer service. These other companies will have access to the Personal Information, the Billing Information, and the Other Information only as necessary to perform their functions and to the extent permitted by law.
In order to administer our contests, promotions, and sweepstakes, we may share your Personal Information and Other Information with our third-party promotional and marketing partners.
In an ongoing effort to better understand our users and our Services, we might analyze the Other Information in aggregate form in order to operate, maintain, manage, and improve the Services. This aggregate information does not identify you personally. We may share this aggregate data with our affiliates, agents, and business partners. We may also disclose aggregated user statistics in order to describe our products and Services to current and prospective business partners and to other third parties for other lawful purposes.
As we develop our business, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, dissolution, or similar event, the Personal Information, the Billing Information, and the Other Information may be part of the transferred assets. To the extent permitted by law, we may also disclose Personal Information, the Billing Information, and the Other Information when required by law, court order, or other government or law enforcement authority or regulatory agency, or whenever we believe that disclosing such Information is necessary or advisable, for example, to protect the rights, property, or safety of Gem Health Inc or others.
5. How We Protect Your Information
We take commercially reasonable steps to protect the Personal Information, the Billing Information, and the Other Information from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. Please understand, however, that no security system is impenetrable. We cannot guarantee the security of our databases, nor can we guarantee that the information you supply will not be intercepted while being transmitted to and from us over the Internet. In particular, e-mail sent to or from the Platform may not be secure, and you should therefore take special care in deciding what information you send to us via e-mail.
6. Important Notice to Non-U.S. Residents
The Platform and the Services are operated in the United States. If you are located outside of the United States, please be aware that any information you provide to us will be transferred to the United States. By using the Services and/or providing us with any information, you consent to this transfer.
8. External Websites
10. How to Contact Us
1. Description and Use of the Platform
Gem Health Inc delivers plant-based vitamin & mineral food bites and other nutrient-dense Products. Through our Platform, we offer single unit and subscription Services, where we deliver packaged units that contain anywhere from five to thirty individual nutrient-dense bites as well as other Products. We’ve designed our Products to be a convenient, delicious, and effective way to get your daily nutrition.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, 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 Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) do not have more than one Gem Health Inc account, 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
Gem Health, Inc’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Website or the Platform, you hereby agree to comply with these community rules and that:
- Buyers must be the age of majority in their jurisdiction and capable of entering into binding contracts;
- You will not use the Website or the Platform for any unlawful purpose;
- Buyers 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 Website or the Platform to collect any market research for 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 Website or Platform, 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 Website or the Platform; and
- You will not interfere with or attempt to interrupt the proper operation of the Website or the Platform 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 Platform, or any portion of the Services, without notice, and remove any User Content that does not adhere to these guidelines.
4. Registration, Account and Communication Preferences
In order to access and use certain areas or features of the Sites, you will need to register for a Gem Health Inc 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 Sites or your account.
By creating a Gem Health Inc account, you also consent to receive electronic communications from us (e.g., via email or by posting notices to the Sites). 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.
5. Terms of Sale
5.1 Subscriptions; Continuous Subscriptions; Cancellation Policy
Subscriptions. We offer different subscription plans for our Products (each, a “Subscription”). For more information about our Subscriptions, please visit the Product page on our website and our FAQs. Note that we do not currently deliver Products to locations outside of the United States. Continuous Subscriptions. The Gem Health, Inc. Subscription Service is an automatic recurring subscription service. As part of the Subscription Service, we offer a number of subscription options that you choose from for both buyers and gifting. For all recurring orders, (excluding those you choose to skip in accordance with the Agreement) you will receive a package from Gem Health Inc including the contents of your chosen plan (each a “Delivery”). You can find specific details regarding your plan and the Gem Health Inc Service (“Account”) by accessing the Site and accessing your Account details. WHEN YOU REGISTER FOR A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) GEM HEALTH INC (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTOMATICALLY AUTHORIZED TO CHARGE YOU ON A MONTHLY OR THE APPLICABLE RECURRING BASIS FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS. YOU ACKNOWLEDGE AND AGREE THAT GEM HEALTH INC WILL NOT OBTAIN ANY ADDITIONAL AUTHORIZATION FROM YOU FOR SUCH AUTOMATIC, RECURRING PAYMENTS. YOU MAY SKIP YOUR MONTHLY ORDER AS OFTEN AS YOU’D LIKE BY MANAGING YOUR SUBSCRIPTIONS BY LOGGING INTO YOUR ACCOUNT. Cancellation Policy. CANCELLATION POLICY. YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW UNTIL YOU CANCEL. THIS INCLUDES SAMPLE PACK ORDERS. YOU MAY CANCEL IN YOUR ACCOUNT SETTINGS OR BY EMAILING US AT HELLO@DAILYGEM.CO AND FOLLOWING THE INSTRUCTIONS YOU RECEIVE. YOU MAY CANCEL AT ANY TIME, BUT IF YOU CANCEL AFTER THE NEXT SHIPMENT HAS ALREADY BEEN SHIPPED, YOU WILL STILL RECEIVE, AND BE CHARGED FOR, THE NEXT SHIPMENT. (FOR ALL SUBSCRIPTION AND RECURRING ORDERS, YOU CAN CANCEL AT ANYTIME BEFORE YOUR NEXT MONTHLY SHIPMENT) . YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED PRIOR TO THE CANCELLATION OF YOUR SUBSCRIPTION. In the event you cancel your Subscription, please note that we may still send you promotional communications about Gem Health, Inc, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein
You have the ability to purchase subscriptions for other people through the Sites (“Gifts”). We offer various Gift packages, so please visit the Gifts page on our website. When you purchase a Gift, we will send an email to you confirming the purchase of the Gift. If you put the gift in the recipient’s name and email, they can create an account in order to access the Site and manage their subscription. Gifts are not refundable or redeemable for cash, unless otherwise required by applicable law. You cannot cancel Gifts. You can however choose to skip or snooze a month or change the flavor by contacting firstname.lastname@example.org.
5.3 Trials or Sample Pack Purchases
From time to time, to the extent legally permitted, we may offer trials of certain products for specified periods of time. If we offer you a trial, the specific terms of your trial will be provided in the marketing materials describing the particular trial or at registration. Your sample pack purchase will automatically convert to a subscription plan following the number of days disclosed during your order. Your subscription will then automatically renew at the current price unless you change your frequency or cancel your account. You may view your next charge date, change frequency or cancel your account at any time in your account settings under Manage Your Subscription, or by emailing us at email@example.com and following the instructions you receive. All subscription requests regarding flavor change, address adjustment, and cancellations must be made at least 24 hours before the next charge date. ONCE YOUR TRIAL ENDS OR THE APPLICABLE DAYS AFTER THE PURCHASE OF A SAMPLE PACK, WE (OR OUR THIRD PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR TRIAL OR THE APPLICABLE PERIOD. INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE DESCRIBED IN SECTIONS 4.1 AND 4.2 ABOVE. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
5.4 Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Gem Health Inc account, you can do so at any time by logging into your account and editing your payment information. You acknowledge that the amount billed may vary due to promotional offers, changes to your Subscription or changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
5.5 Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with your Subscription, we will provide advance notice of such changes. The shipment of Products, as applicable, to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your subscription(s) in accordance with the cancellation policies in these terms. All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products (including, but not limited to, specific ingredients or entire items) without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of certain Products and market conditions beyond our control, we may be required to make substitutions from time to time. If you are not satisfied with a substitution, please contact us at firstname.lastname@example.org.
We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
5.7 Shipping and Handling
You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by a third party courier. Actual delivery dates may vary. You agree that you will not obtain, or direct shipment of, a Product for export. All Products purchased from us are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to you upon our delivery of the Product to the third party courier.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery.If at anytime you believe that the Product in your delivery is not suitable for consumption, contact us at email@example.com
5.9 No Resale
You are not permitted to resell or otherwise use the Products for commercial purposes.
5.10 Returns and Refunds
We do not accept returns or provide refunds, but please reach out to firstname.lastname@example.org with any questions, comments or concerns and we'd be happy to address them. All subscription requests regarding flavor change, address adjustment, and cancellations must be made at least 1 business day before the next charge date. Once your order has been placed or your monthly shipment begins processing, we are unable to cancel or make changes to your order.
6. User Content
The Sites 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 your User Content with others through the Sites 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 Sites. By using the interactive features and areas of the Sites, 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 Gem Health Inc or our Products but fails to disclose a material connection to us, if you have one (for example, if you are a Gem Health Inc 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 or that restricts or inhibits any other person from using or enjoying the Sites or Products, or that may expose Gem Health Inc or others to any harm or liability of any type. 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 Sites 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 Sites at your sole cost and expense.
7. 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 Sites or to our pages or feeds on third party social media platforms (e.g., Gem Health Inc’s Facebook page, Instagram page or Twitter feed), you hereby grant Gem Health Inc 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 Gem Health Inc through the Sites or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (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 Gem Health Inc 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 these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Gem Health Inc, the Sites or the Products (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Gem Health Inc. Gem Health Inc 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.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Gem Health Inc, and our respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Gem Health Inc Parties”), from and against all actual or alleged Gem Health Inc 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 Sites, Content or Products, (b) any User Content you create, post, share or store on or through the Sites 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 Sites or Products provided to you. You agree to promptly notify Gem Health Inc of any third party Claims and cooperate with the Gem Health Inc Parties in defending such Claims. You further agree that the Gem Health Inc 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 Gem Health Inc.
YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE [AND AGREE THAT WE CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS. WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. ALL PRODUCTS AND THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. GEM HEALTH INC 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 SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) 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. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
11. Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GEM HEALTH INCOR ANY OF THE OTHER GEM HEALTH INC 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 GEM HEALTH INC, 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 GEM HEALTH INC’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 GEM HEALTH INCAND THE OTHER GEM HEALTH INC PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THEGEM HEALTH INC MARKET EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF PRODUCT, OR ACCESS OR USE OF THE SITES 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 GEM HEALTH INC AND THE OTHER GEM HEALTH INC 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 GEM HEALTH INC AND THE OTHER GEM HEALTH INC PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH GEM HEALTH INC 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 GEM HEALTH INC 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 GEM HEALTH INC SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW
12. Modifications to the Sites and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) or the provision of the Products at any time and without liability thereof
These Terms constitute the entire agreement between you and Gem Health Inc relating to your access to and use of the Sites 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 Gem Health Inc. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Gem Health Inc’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.
SMS MOBILE MESSAGE MANAGEMENT PROGRAM TERMS AND CONDITIONS
User Opt In
The Program allows Users to receive SMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or predetermined mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out
If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, STOPALL, to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify
If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the management of the users digital subscription, services, and events.
Cost and Frequency
Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
For support regarding the Program, text “HELP” to the number you received messages from or email us at email@example.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
Our Disclaimer of Warranty
The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
In the event that there is a dispute, claim, or controversy between you and Us, or between you and Agency Enterprise LLC d/b/a ElectricSMS or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Los Angeles, California before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which ElectricSMS’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.