IMPORTANT NOTICE: THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CONTAINS A BINDING ARBITRATION PROVISION AND A CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY BECAUSE IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE BINDING INDIVIDUAL ARBITRATION SECTION BELOW.
This Agreement sets forth the standards of use for the www.massagebyjohnd.com website (the “Website”). This Agreement is intended to apply broadly, and it governs any and all access and use of the Website, the information or content contained on the Website, and all aspects of the Service (defined below).
By using the Website, you (“you” or “your”) agree to this Agreement. If you do not agree to this Agreement, you may not use the Website.
THIS AGREEMENT SETS FORTH LEGALLY BINDING TERMS AND GOVERNS YOUR ACCESS TO AND ALL USE OF THE WEBSITE AND/OR THE APPLICATION(S) AND THE INFORMATION OR CONTENT CONTAINED ON ANY ONE OR ALL OF THEM, AND ANY OF THE SERVICES (DEFINED BELOW). BY ACCESSING OR USING THE WEBSITE, THE APPLICATION(S) AND/OR THE INFORMATION OR CONTENT CONTAINED ON ANY ONE OF THEM, AND/OR ANY SERVICE (DEFINED BELOW), YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE AT LEAST 18 YEARS OLD, AND (3) YOU HAVE THE RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE WEBSITE, EITHER OF THE APPLICATIONS AND/OR THE INFORMATION OR CONTENT CONTAINED ON ANY ONE OF THEM, AND/OR ANY SERVICE (DEFINED BELOW) IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE WEBSITE, EITHER OF THE APPLICATIONS AND/OR THE INFORMATION OR CONTENT CONTAINED ON ANY ONE OF THEM, and/OR ANY SERVICE (DEFINED BELOW).
Any and all such additional terms are incorporated by reference into this Agreement. In the event of a conflict between the additional terms and any provision in this Agreement, the additional terms will prevail, but only with respect to the Website and/or any Service (defined below) to which the additional terms apply.
We reserve the right, at any time, to modify, alter, or update this Agreement without prior notice. Modifications shall become effective immediately upon being posted on the Website. Your continued use of the Website, and/or any Service (defined below) after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. Except as provided in this paragraph, this Agreement may not be amended.
DESCRIPTION OF SERVICE
Through the Website we are providing you with information about products and services including massage sessions, along with (a) the ability to schedule, modify and/or cancel appointments; (b) provide information to and complete forms regarding massage sessions; (c) purchase of massage sessions.
You must (1) provide all equipment necessary for accessing the Website, (2) provide for your access to the Internet to use the Website and Mobile Application, and (3) pay any fees related with such Internet or equipment.
DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITE, the APPLICATION(S), THE INFORMATION OR CONTENT CONTAINED ON ANY OF THEM AND/OR ANY SERVICE IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITE, APPLICATIONS, AND ANY CONTENT OR INFORMATION PROVIDED BY ON ANY OF THEM AND/OR any SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND THE US HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE WEBSITE AND THE APPLICATIONS, THE INFORMATION CONTAINED ON ANY OF THEM AND/OR ANY SERVICE EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT. THE us DO NOT WARRANT THAT THE WEBSITE, THE APPLICATIONS, ANY CONTENT PROVIDED BY ANY OF THEM AND/OR ANY SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE WEBSITE AND/OR THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE WEBSITE, THE APPLICATIONS AND/OR THE INFORMATION CONTAINED ON ANY OF THEM WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US WILL CREATE A WARRANTY.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US, THROUGH THE WEBSITE, THE INFORMATION CONTAINED ON IT AND/OR the SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
THE FOREGOING EXCLUSIONS SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF this AGREEMENT OR YOUR USE OF THE WEBSITE, and/or the information and content provided by it AND/OR ANY SERVICE.
LIMITATION OF LIABILITY
YOU UNDERSTAND THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR THE US SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE WEBSITE, THE APPLICATIONS OR THE INFORMATION CONTAINED ON ANY OF THEM, OR ANY SERVICE, WHETHER SUCH DAMAGES ARISE IN CONTRACT, WARRANTY, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF THE US HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS ARE INAPPLICABLE.
INDEMNIFICATION
You agree to indemnify and hold the us harmless from any claims, demands, liabilities, damages, losses, and expenses, including, without limitation reasonable attorneys’ fees and costs, made by any third party due to or arising out of or connected in any way with your use of the Website, the Application(s) and/or any information or content provided on any of them, any Service, any service or product provided by or purchased from an independently owned and operated Massage Envy® franchised location, the violation of this Agreement, using your equipment to access the Website and/or the Application(s), infringement of any intellectual property or any other right of any person or entity. The indemnification obligations under this Section shall survive the termination or expiration of this Agreement or your use of the Website, the Application(s) and/or any Service.
BINDING INDIVIDUAL ARBITRATION
PLEASE READ THIS SECTION CAREFULLY—IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Last Update to Section 5: June 26, 2017
Purpose. This Binding Individual Arbitration Section governs all Disputes between you and John Deurmeier, Massage Therapy. The term “Disputes” is to be given the broadest possible meaning that will be enforced and means any dispute, claim, or controversy of any kind between you and any of the Us that arise out of or in any way relate to (1) your access to the Website and/or the Application(s); (2) your use of the Website and/or the Application(s); (3) the provision of content, services, and/or products on or through the Website, the Application(s) and/or the Service; (4) any product or service provided by or purchased from an independently owned and operated Massage Envy® franchised location; and/or (5) this Agreement, including the validity, enforceability or scope of this Binding Individual Arbitration Section (with the exception of the Class Action Waiver clause below), whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory. The term “Disputes” includes claims that arose or accrued before you assented to this Agreement. If you have a Dispute with any John Deurmeier, Massage Therapy that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, you and the John Deurmeier, Massage Therapy with which you have a Dispute agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Exclusions from Arbitration. You AND John Deurmeier, Massage Therapy AGREE THAT the ONLY DISPUTES NOT COVERED BY THIS SECTION ARE (1) CLAIMS REGARDING the INFRINGEMENT, PROTECTION OR VALIDITY OF YOUR OR US’S TRADE SECRETS, COPYRIGHT, TRADEMARK OR PATENT RIGHTS AND (2) CLAIMS YOU choose to pursue in small claims court where jurisdiction and venue over US and you otherwise qualifies for such small claims court and where your claim does not include a request for any type of equitable relief.
Right to Opt-Out of Binding Arbitration and Class Action Waiver Within 30 Days. You have the right to opt-out and not be bound by this arbitration provision by sending written notice of your decision to opt-out to US at MASSAGEBYJOHND@GMAIL.COM. The written notice must be postmarked or emailed within thirty (30) days of the later of the date noted in the “Last Update to Section 5” or your initial log in to the Website. Your written notification must include: (1) your name, (2) your physical postal address, and (3) a clear statement that you do not wish to resolve disputes with any John Deurmeier, Massage Therapy through arbitration. Otherwise, you shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of this Section. If you opt-out of this arbitration provision, John Deurmeier, Massage Therapy also will not be bound by it. If you do not affirmatively elect to opt out as described above, your use of the Website, the Application(s) and/or any Service will be deemed to be your irrevocable acceptance of this Agreement and any changes/updates to this Section.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH ANY JOHN DEURMEIER, MASSAGE THERAPY, YOU MUST FIRST SEND WRITTEN NOTICE OF THE NATURE OF THE DISPUTE TO MASSAGEBYJOHND@GMAIL.COM TO GIVE THE JOHN DEURMEIER, MASSAGE THERAPY WITH WHICH YOU HAVE A DISPUTE THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than sixty (60) days after you provide notice of the Dispute. If the John Deurmeier, Massage Therapy with which you have a Dispute does not resolve your Dispute within sixty (60) days from receipt of written notice of the Dispute, you or the John Deurmeier, Massage Therapy with which you have a Dispute may pursue your claim in arbitration pursuant to the terms in this Section.
Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY—IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS. Any disputes, claims or controversies, whether in arbitration or court, will be conducted only on an individual basis and not on behalf of, or as part of, any purported class, consolidated, representative or private attorney general proceeding. You further agree that you shall not participate in any class, consolidated, representative or private attorney general proceeding (existing or future) brought by any third party involving a Dispute. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated. The terms of this provision will be binding on you, your heirs, successors, and assigns.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or John Deurmeier, Massage Therapy with which you have a Dispute elect(s) to resolve your Dispute through arbitration, the party initiating the arbitration proceeding must initiate it with JAMS, http://www.jamsadr.com. The terms of this Section govern in the event they conflict with the relevant JAMS rules described below.
Arbitration Procedures. Because the Website, the Applications and any Service involve interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. The arbitration shall be conducted by a single arbitrator. Except as otherwise provided in this Section, the arbitration shall be governed by the rules set forth in this Agreement and (1) for claims of less than $75,000, the arbitration shall be governed by the JAMS Streamlined Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated; and (2) for claims over $75,000, the arbitration shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated (JAMS rules are available at http://www.jamsadr.com/ or by calling JAMS at 1-800-352-5267).
The filing party shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $75,000, unless the arbitrator finds the arbitration to be frivolous. You are responsible for all other additional costs that you may incur in connection with the arbitration including, but not limited to attorney’s fees and expert witness costs unless US is otherwise specifically required to pay such fees under applicable law. For claims that total more than $75,000, the JAMS Rules will govern payment of filing fees and arbitration fees. The decision of the arbitrator will be in writing and binding and conclusive on John Deurmeier, Massage Therapy and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Dispositive motions, including without limitation, motions to dismiss and motions for summary judgment will be allowed in the arbitration. The arbitrator must follow this Agreement and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees and expert witness costs. John Deurmeier, Massage Therapy and you understand that, absent this mandatory arbitration provision, the Us and you would have the right to sue in court and have a jury trial. The Us and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the JAMS Streamlined Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated.
Confidentiality of Arbitration Proceedings. Arbitration proceedings conducted pursuant to this Section 5 shall be strictly confidential. The fact that an arbitration exists or is proceeding, the nature of the Dispute, all documents exchanged in connection with the arbitration, all testimony (including transcripts of testimony, if any) that is given in the arbitration proceeding, and any arbitration award shall remain confidential. The only exceptions to this confidentiality provision are disclosures reasonably necessary to confirm or vacate an arbitration award, a judicial challenge to an arbitration award or its enforcement, or disclosure that is required by operation of law or court order; provided, however, that this Paragraph shall not prevent the disclosure of such information (1) as may be required to your legal and financial advisors and independent accountants; (2) as may be required to any John Deurmeier, Massage Therapy’s (a) legal, financial and other professional advisors, regulators, rating agencies, independent accountants, analysts, agents, and/or directors, (b) shareholders and/or affiliates and their respective officers, directors and legal, financial and other professional advisors, and/or (c) existing or potential insurers or reinsurers, existing or potential investors, existing or potential lenders, or existing or potential purchasers; and/or (3) as otherwise required to comply with any applicable law or regulation.
Location of Arbitration. You or the John Deurmeier, Massage Therapy with which you have a Dispute may initiate arbitration in Orange County, California or the United States county in which you reside. In the event that you select the county of your United States residence, John Deurmeier, Massage Therapy may transfer the arbitration to Orange County, California in the event that it agrees to pay any additional fees or costs you incur as a result of the change in the arbitration location as determined by the arbitrator.
Severability. If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that specific clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court and you and John Deurmeier, Massage Therapy with which you have a dispute each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
Continuation. This Section shall survive any termination of this Agreement or the provision of any Service to you.
GOVERNING LAW AND JURISDICTION
THE PARTIES AGREE THAT THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICT OF LAW RULES, GOVERN THIS AGREEMENT AND ANY DISPUTES BETWEEN YOU AND any US. ANY DISPUTE NOT SUBJECT TO ARBITRATION WILL BE LITIGATED exclusively BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION IN EITHER THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF ORANGE OR IN the UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA.
MODIFICATIONS AND INTERRUPTION TO SERVICE
We reserve the right to modify or discontinue the Website, and/or any Service at any time, with or without notice to you. We shall not be liable to you or any third party should we exercise our right to modify or discontinue the Website, and/or any Service. You acknowledge and accept that we do not guarantee continuous, uninterrupted or secure access to the Website and operation of the Website may be interfered with or adversely affected by numerous factors or circumstances outside of US’s control.
MOBILE TEXT MESSAGING
By using the Website and/or any Service, you agree that we may communicate with you by SMS, MMS, text message, email, or other electronic means to your mobile device concerning your usage of the Website, and/or any Service, and/or any information or content available on the Website and/or any Service (collectively, the “Text Services”). Such information shall be subject to the Privacy Policy.
The Text Services may not be available in all areas at all times. This means we may not be able to successfully transmit Text Services to you, and we have no liability for any such transmission delay or message failure. The Text Services may not work in the event of product, software, coverage, or other changes made by your wireless carrier or changes you make to your mobile device. You must provide your own wireless device, subscribe to a wireless service on a participating mobile carrier, and be able to receive text messages using that wireless device and your carrier’s service to use or receive the Text Services.
Consent to receive the Text Services is not required as a condition of purchasing any goods or services. Texts may be sent using an automatic telephone dialing system.
SECURITY AND PASSWORD; CREDIT CARD INFORMATION
You are solely responsible for maintaining the confidentiality of your password and account. Please do not share your password or account information.
Appointment Reservations: To reserve appointments for massage, you will be required to enter your credit card information. Payment is due upon completion of your appointment. By scheduling an appointment through the Application, you agree to the Cancellation Policy. We do not store your credit card information that is entered through the Website and do not make any charge on your credit card and do not have any access to your credit card information.
You represent and warrant that your credit card information is true and that you are authorized to use the credit card.
COMPLIANCE WITH LAWS
You assume all knowledge of applicable law and are responsible for compliance with any such laws. You may not use the Website, the Application(s) or any Service in any way that violates applicable state, federal, or international laws, regulations or other government requirements. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation.
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