TERMS OF SERVICE

Functional Design Systems, LLC (d/b/a “Gray Institute®”) and its affiliates (collectively, “Gray Institute,” or “Our”) offer services utilized by health care and other physical medicine, wellness, fitness and sports professionals and non-professionals (the “Services”).

Our Services have both offline components, such as (but not limited to) in-person educational training, and online components, such as (but not limited to): e-commerce services, for example virtual education; through the Gray Institute’s website, learning management platform, and/or mobile application which may include on-demand coaching, software as a service, online education, and other digital services. The terms of service set forth herein (the “Terms of Service”) will be considered by Gray Institute as an offer and bind You (“You”) to the terms and conditions set forth herein in connection with Your execution of any pre-sale agreement, the use of the Services. Our acceptance is expressly conditioned upon Your assent to all these Terms of Service. Gray Institute may modify the Services or discontinue their availability at any time.

By using the Services, You agree and acknowledge and agree to the collection, use, and disclosure of Your personal information in accordance with Gray Institute’s Privacy Policy, which is incorporated in these Terms of Service by reference. You also agree to abide by any additional Gray Institute policies for users that are published on our websites or mobile applications.

1. Additional Terms

Your use of certain Services may rely on resources provided by third parties (the “Third-Party Services”), which may be subject to additional terms not included in these Terms of Service. By using such Services, You agree to any additional terms that apply (the “Additional Terms”). However, as between You and Gray Institute, these Additional Terms shall apply to Your use of the Services including any such Third-Party Services You interact with as part of the Services.

2. Material Changes

Gray Institute reserves the right to modify these Terms of Service at any time, in Our sole discretion. If Gray Institute materially modifies any terms of these Terms of Service, such modification will be effective after Gray Institute has sent You notice of the amended agreement, if permitted under the applicable law. Such notice will be in Our sole discretion, and the manner of the notification may include, for example, via email, posted notice on Our website, platform, or mobile application, or other manner. Your failure to cease use of the Digital Services after receiving notification of the modification of the Terms of Service will constitute Your acceptance of the modified terms. If You do not agree to any of these Terms of Service or any changes to these Terms of Service, please do discontinue any use of the Services immediately.

3. Use of the Services and Registration

(a) In order to access or use the Services, You must be either (i) at least 18 years of age, or (ii) if You are under the age of 18, but older than the age of 16, You must have the consent of Your parent or guardian to use the Services under their direct supervision. If You do not meet these requirements, You may not use the Services. All of Your use, access, and other activities relating to the Services must be in compliance with all applicable laws and regulations, including, without limitations, laws relating to copyright and other intellectual property use, and to privacy and personal identity. Further, access to Our Services from territories where their contents are illegal is prohibited. Those who choose to access or use the Services from locations outside of the United States of America do so at their own initiative and are responsible for compliance with all local rules including, without limitation, rules about the internet, data, e-mail, or privacy. You further agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which You reside. If You use the Services from countries outside of the United States of America, You must agree to abide by all local rules regarding online conduct and acceptable content.

(b) To use certain Services, You will need to register and obtain an account and password. When You register, the information You provide to Gray Institute during the registration process will help Gray Institute in offering content, customer service, network management and other services. You are solely responsible for maintaining the confidentiality of Your account, username, and password (collectively, the “Account”) and for all activities associated with or occurring under Your Account. You represent and warrant that Your Account information will be accurate at all times. You must notify Gray Institute (i) immediately of any unauthorized use of Your Account and any other breach of security, and (ii) ensure that You logout from Your Account at the end of each session of the Services. To the extent permissible under applicable law, we cannot and will not be responsible for any loss or damage arising from Your failure to comply with the foregoing requirements or as a result of use of Your Account, either with or without Your knowledge, prior to Your notifying Gray Institute of unauthorized access to Your Account. You may not transfer Your Account to any other person, and You may not use anyone else’s Account at any time without the permission of the Account holder. In cases where You have authorized or registered another individual, including a minor, to use Your Account, You are fully responsible for the use of such Account including the consequences of any misuse thereof.

4. Fees Payment

If You elect to open an Account or use Our Services that involve payment of a fee, then You agree to pay, and will be responsible for payment of, that fee and all taxes associated with such access or use. If You provide credit card information to pay for such fees, then You hereby represent and warrant that You are authorized to supply such information and hereby authorize Gray Institute to charge Your credit card on a regular basis to pay the fees as they are due. If Your payment method fails or Your balance is past due, then Gray Institute may collect fees owed using other collection mechanisms. This may include charging other payment methods on file with Gray Institute. Gray Institute may also block Your access to any Services pending resolution of any amounts due by You to Gray Institute.

5. Limited License

After You open an Account or otherwise become a customer or user of Gray Institute, You are granted a limited, non-transferrable, non-exclusive, revocable license (the “Limited License”) to access and use the Services for Your own personal, non-commercial purposes. You acknowledge and agree that the Limited License will remain in effect unless and until You breach these Terms of Service or Your Account is terminated in accordance with these Terms of Service. Such Limited License does not include, without limitation: (i) any resale or commercial use of the Services or its Content (as hereinafter defined); (ii) the collection and use of any product or service listings or descriptions; (iii) making derivative uses of the Digital Services and its contents; or (iv) use of any data mining, robots, or similar data gathering and extraction methods. All rights not expressly granted in these Terms of Service are retained by the Content owners and these Terms of Service do not grant any implied licenses.

6. Intellectual Property Rights

(a) The Services are proprietary, and You agree You are only receiving a Limited License to access or use the information, materials, functions and everything contained in the Services. The Services may contain graphics, images, visualizations, document layouts, artwork, text, fonts, music, software tools, and other information (referred to herein as the “Content”). The Services and all Content are the copyrighted property of Gray Institute, and/or third parties. All rights not expressly granted to You in the Services and the Content are reserved worldwide.

(b) You acknowledge that the Services contain intellectual property that is protected by copyright, patent, trademark, trade secret or other proprietary rights (the “Intellectual Property Rights”), and that these rights are valid and protected in all forms, media and technologies existing now or to be developed in the future. Except as expressly set forth in these Terms of Service, all rights not granted hereunder to You are expressly reserved by Gray Institute. You further acknowledge and agree that Your use of the Services is subject to Your willingness to respect the Intellectual Property Rights therein. As a consequence, You acknowledge and agree these Intellectual Property Rights, whether property of Gray Institute or any third party, are eligible for the full protection of applicable law regardless of which technology platforms are used to sell, share, distribute, and/or provide access to such Intellectual Property Rights. Except as expressly permitted by law, You may not, and You agree not to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Services. In addition, You agree that You will not use any Intellectual Property Rights to develop competing products or services, nor seek, prosecute, or oppose the registration of identical or similar trademarks to the trademarks, registered or not registered, used in the Services.

7. Waiver and Assumption of Risk

By accepting these Terms of Service, You hereby assume all risks involved in utilizing the Services. You further agree that You are in good physical health and medically able to participate in the Services You select. You hereby release, waive, discharge and agree not to sue Gray Institute, its directors, officers, employees, contractors, volunteers, clients and agents for any and all claims arising from the Services. This applies to any and all injuries, illnesses, and accidents, foreseeable or unforeseeable. Therefore, You acknowledge and agree that to the fullest extent permitted by law, You hereby fully and forever RELEASE, WAIVE AND DISCHARGE FROM LIABILITY THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, INJURIES, DAMAGES, ACTIONS, OR CAUSES OF ACTION (the “CLAIMS”) RELATED TO THE USE OF THE SERVICES AND/OR OR ENGAGING IN ANY ACTIVITIES INCIDENTAL THERETO AGAINST RELEASED PARTIES, AND HEREBY AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTIES AGAINST ANY SUCH CLAIMS.

8. Indemnification

By using the Services, You agree that You will indemnify and hold harmless Gray Institute and all its subsidiaries, affiliates, related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives thereof (the “Indemnified Entities”) from all third-party claims and costs (including reasonable attorneys’ fees) arising out of or related to: (i) Your use of, participation in, or consumption submitted by You or by a third party acting on Your behalf or using Your account for the Services; (ii) Your violation of any terms, conditions, or guidelines set out or referred to in these Terms of Service; and/or (iii) Your violation of any applicable laws, rules or regulations through or related to the use of the Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, You agree to pay for the defense of the Indemnified Entity, including reasonable costs and attorneys’ fees incurred by the Indemnified Entity. You agree that the provisions in this section will survive any termination of Your account, these Terms of Service, or Your access to the Services.

9. Alternative Disputes Resolution and Class Action Waiver

NOTICE TO USERS IN THE UNITED STATES AND CANADA REGARDING DISPUTE RESOLUTION AND YOUR RIGHT TO OPT-OUT. PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION ONLY APPLIES TO USERS IN THE US AND CANADA: THESE TERMS OF SERVICE CONTAIN PROVISIONS THAT GOVERN HOW TO RESOLVE CLAIMS THAT YOU AND GRAY INSTITUTE MAY HAVE AGAINST EACH OTHER. UNLESS YOU OPT-OUT, YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST GRAY INSTITUTE ON AN INDIVIDUAL BASIS, NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.

Gray Institute is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms of Service provide for a two-part process for individuals to whom this Section 9 applies: (i) an informal negotiation directly with Gray Institute.

(a) Alternative Dispute Resolution Process. At least thirty (30) days prior to filing a claim, You and Gray Institute each agree to notify the other party of the dispute in writing (the “Notice of Dispute”) and attempt in good faith to negotiate an informal resolution. You must send Your notice of dispute to Gray Institute by mailing it to Gray Institute: 5353 W US Highway 223, Ste B, Adrian, Michigan 49221. A Notice of Dispute must include: the party’s name and preferred contact information, a brief description of the dispute, and the relief sought.

(b) Class Action Waiver. You and Gray Institute acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit.

(c) Class Action Opt-Out. You have the right to opt-out and not be bound by the class action waiver provisions set forth above by sending written notice of Your decision to opt-out by emailing Gray Institute at info@grayinstitute.com and providing the following information: (i) Your name, (ii) Your Gray Institute account email address; (iii) Your mailing address; (iv) a statement of Your wish not to waive Your right to participate as plaintiff or class member in Class Actions. The notice must be sent within thirty (30) days of Your agreement to these Terms of Service.

(d) Waiver of Jury Trial. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS TERMS OF SERVICE.

10. Disclaimer and No Warranties

(a) Gray Institute is not a health care provider and no professional relationship is established between Gray Institute and its users and/or customers. Nothing in the Services should be construed as medical advice or assistance. You are solely responsible for evaluating and assessing Your own health and following medical limitations/suggestions provided to You by Your healthcare professional. The Services are not a replacement or substitute for professional care. If You have or suspect You may have a medical or psychological problem, or a nutritional deficiency or dietetic condition, You should consult Your medical doctor, as appropriate before accessing the Services.

(b) Gray Institute, in its sole and exclusive discretion, reserves the right to update, change or remove any aspect of its Services without notice to You. By using the Services, You agree that there is no guarantee that the Services will be available (i) for any specific length of time, (ii) in any specific jurisdiction, and/or (iii) otherwise to You.

(c) GRAY INSTITUTE IS PROVIDING THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.

(d) GRAY INSTITUTE MAKES NO PROMISES WITH RESPECT TO, AND EXPRESSLY DISCLAIM ALL ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, ACCURACY, COMPLETENESS, UNINTERRUPTED OR ERROR-FREE SERVICE, FITNESS FOR A PARTICULAR PURPOSE, SUCCESS IN ACHIEVING YOUR HEALTH GOALS, QUITE ENJOYMENT, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE, AND LIABILITY FOR: (1) PRODUCTS, SERVICES, INFORMATION, PROGRAMMING, AND/OR ANYTHING ELSE PROVIDED BY A THIRD PARTY THAT IS ACCESSIBLE TO YOU THROUGH THE SERVICES; OR (2) THE QUALITY OR CONDUCT OF ANY THIRD PARTY YOU MAY ENCOUNTER IN CONNECTION WITH YOUR USE OF THE SERVICES.

(e) To the extent any disclaimer does not is not lawful in Your jurisdiction, to the fullest extent permitted by law, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which You first created Your Account, and no warranties shall apply after such period has elapsed.

11. Limitation of Liability

PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF GRAY INSTITUTE TO YOU.

(a) By agreeing to these Terms of Service, You hereby acknowledge and agree that You assume all risk for Your health and well-being, and fully release and hold harmless for any responsibility, cost or damages that Gray Institute, its instructors, members and employees for any injury, harm or loss You may suffer, including death, as a result of participation in any Gray Institute’s Services. Gray Institute shall not in any case be liable for any indirect, incidental, special, consequential, punitive or exemplary damages, including but not limited to damages for loss of profits, economic losses, service interruption, damage to electronic devices (including but not limited to personal computers, mobile devices and smartphones or any electronic devices issued to You by Your employer), inability to enjoy the use of the Services.

(b) You further acknowledge and agree that Gray Institute’s total liability to You for all claims aggregated together shall not exceed the aggregate amount paid by You, or Your parent or guardian, to Gray Institute for the Services Gray Institute has provided to You, as calculated in either case over the 1-year period prior to the date Your claim or claims initially arose. The above exclusion or limitation of liability for consequential or incidental damages may not apply to You if You live in a jurisdiction which does not recognize such exclusion or limitation. If You live in such a jurisdiction, all limitations, exclusions, and disclaimers in these Terms of Service apply to the maximum extent permitted by law. In the event that one of these exclusions or limitations does not apply to You, all remaining exclusions or limitations remain applicable to You.

12. Term and Termination

(a) Term. These Terms of Service apply to Your use of the Services from the date You first register for an Account or use such Services and continue until You no longer have an Account and stop using the Services. Upon the termination of Your Account or use of the Services pursuant to these Terms of Service, all rights and licenses granted under these Terms of Service and all access to the Services provided herein shall terminate immediately.

(b) Account Termination and Deletion. Gray Institute may, in its sole and exclusive discretion, suspend, disable or delete Your Account or remove or block access to any and all Services in order to (i) enforce these Terms of Service, (ii) comply with applicable law, and/or (iii) protect the reputation and brand equity of Gray Institute. If Your Account is terminated by Gray Institute for violating these Terms of Service, You will not be eligible to a reimbursement, re-register for or use of the Services in the future and shall have no right to access, retrieve or receive a copy of the contents of Your Account.

(c) Sections Survival. Upon termination of Your Account, or upon Your cessation or abandonment of the use of Your Account for any reason, all the terms which by their nature are intended to survive termination shall including, without limitation: 4. Fees Payment; 6. Intellectual Property Rights; 7. Waiver and Assumption of Risk; 8. Indemnification; 9. Alternative Disputes Resolution and Class Action Waiver; 11. Limitation of Liability; 12. Term and Termination; 13. Governing Law and Jurisdiction

13. Governing Law and Jurisdiction

These Terms of Service shall be subject to the laws of the State of Michigan as applicable to contracts entered into and performed in Michigan and without regard to its conflicts of laws principles. The State and Federal courts located in Michigan shall have sole jurisdiction over any dispute arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts and waive any argument that they constitute an inconvenient forum.

14. Miscellaneous

(a) Assignment. Neither these Terms of Service, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by You without the prior written permission of Gray Institute. Any purported assignment without such permission shall be void.

(b) Successors; No Third-Party Beneficiaries. These Terms of Service are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. These terms of Service shall not confer any rights or remedies upon any person or entity, except as otherwise set forth in these Terms of Service.

(c) Notices. Any notice required to be given under these Terms of Service must be in writing. Notices by either party must be delivered by electronic mail. A notice by email is taken to be in writing and signed by the named sender, and shall be considered received on the next business day after being sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, in which case the notice shall be deemed legally ineffective. Notices sent by either party shall be effective on the day the notice is sent. Gray Institute may also provide notice to You from within its website or platform, for example through the use of a banner, dialogue box or push notification. Any notice from You must be sent to info@grayinstitute.com. Any email notice by Gray Institute to You will be delivered to the email address You most recently provided to Gray Institute. It is Your sole responsibility to notify Gray Institute of any changes to Your email address by contacting info@grayinstitute.com.

(d) Waiver. Any waiver of any rights of Gray Institute under these Terms of Service must be in a writing manually signed by an officer of Gray Institute, and any such waiver shall not operate as a waiver of any future breach of these Terms of Service. In the event any portion of these Terms of Service is found to be illegal or unenforceable, such portions shall be severed from these Terms, and the remaining terms shall be separately enforced.

(e) Consequences of Breach. If You breach these Terms of Service in the course of using or attempting to use the Services, or if You otherwise create risk or possible legal exposure for Gray Institute, Gray Institute reserves the right to terminate Your Account and access to the Services. In the event that Gray Institute does so, You acknowledge and agree that Gray Institute may notify any payors of such termination. By using the Services, You further acknowledge and agree that any termination of Your access to such Services that result from a breach on Your part shall not limit or restrict Gray Institute’s available remedies at law or in equity.

(f) Statute of Limitations. No action or proceeding shall be commenced by You arising out of or based upon these Terms of Service or Your use of the Services, unless such action or proceeding is commenced within 1-year following the date the applicable claim first arose.

(g) Entire Agreement. These Terms of Service represent the entire relationship between Gray Institute and You regarding Your access and use of the Services and Your Account and they supersede all prior agreements and understandings regarding the same. If any provision of these Terms of Service is determined to be invalid by a court of competent jurisdiction that provision will be enforced to the maximum extent permitted and the remaining provisions of these Terms of Service will remain in full force and effect.