Mellow
TERMS OF USE AND LIABILITY WAIVER
Mellow Massage, LLC
Effective Date: May 13, 2026
These Terms of Use and Liability Waiver (the “Agreement”) govern your use of the website www.mellow-massage.com (the “Site”) and our online marketplace and booking platform (collectively, the “Platform Services”). This Agreement also governs your receipt of any massage, body-work, or related physical services (the “Provider Services”) performed exclusively by independent, third-party professionals (the “Providers”) with whom you connect via the Platform Services. Mellow Massage, LLC, including its affiliates, partners, and subsidiaries (collectively, “Mellow,” “we,” “us,” or “our”), is a technology company operating a digital marketplace; Mellow does not provide Provider Services, does not employ Providers, and does not control the manner or means of the Provider Services.
By accessing or using the Platform Services, or by executing this Agreement, you, on behalf of yourself, your spouse, heirs, dependents, executors, administrators, successors, and assigns (collectively, “you” or the “Client”), agree to be legally bound by all terms herein. If you use the Platform Services to book Provider Services for or on behalf of any third party, you represent and warrant that you possess the explicit legal authority to bind such third party to this Agreement; in the event you lack such authority, you agree to fully indemnify, defend, and hold harmless Mellow against any and all claims, damages, or liabilities brought by or on behalf of that third party.
ANY TEXT, GRAPHICS, IMAGES, OR OTHER MATERIALS PROVIDED BY MELLOW ON THE SITE OR THROUGH THE PLATFORM SERVICES ARE FOR GENERAL INFORMATIONAL PURPOSES ONLY. MELLOW IS A TECHNOLOGY PLATFORM AND DOES NOT PROVIDE, DIRECTLY OR INDIRECTLY, ANY MEDICAL, THERAPEUTIC, CHIROPRACTIC, PHYSICAL THERAPY, OR HEALTHCARE ADVICE, DIAGNOSIS, OR TREATMENT. NO CONTENT ON THE SITE OR PLATFORM SERVICES IS INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE.
YOU EXPRESSLY ACKNOWLEDGE THAT THE INDEPENDENT PROVIDERS ARE NOT EMPLOYEES OR AGENTS OF MELLOW. ANY WELLNESS, PHYSICAL, OR THERAPEUTIC ASSESSMENTS OR SUGGESTIONS MADE BY A PROVIDER DURING THE COURSE OF THE PROVIDER SERVICES ARE THE SOLE RESPONSIBILITY OF THAT INDEPENDENT PROVIDER. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION, INJURY, OR TREATMENT PRIOR TO BOOKING OR RECEIVING PROVIDER SERVICES.
1. Assent, Marketplace Relationship & Waiver of Liability
You expressly acknowledge and agree that Mellow operates exclusively as a technology platform and/or real property lessor. All Provider Services are delivered independently by state-licensed professionals (“Providers”) who operate their own distinct businesses and merely license software or lease physical studio space from Mellow. Mellow does not, under any circumstances, provide massage, body-work, or physical therapy services.
By utilizing the Platform Services to connect with a Provider, you acknowledge that you are establishing a direct, bilateral contractual relationship solely with that independent Provider. You assume all risks associated with the Provider Services, including but not limited to bodily injury, adverse physical reactions, or aggravation of pre-existing conditions.
To the maximum extent permitted by applicable law, you, on behalf of yourself, your spouse, heirs, dependents, and assigns, hereby release, waive, and forever discharge Mellow and its respective parent companies, subsidiaries, affiliates, officers, directors, managers, employees, and agents (collectively, the “Mellow Entities”) from any and all claims, demands, damages, or causes of action—including ordinary negligence, breach of contract, and strict liability—arising out of or relating to your receipt of Provider Services. This release does not apply to claims arising from the gross negligence or willful misconduct of the Mellow Entities.
You further acknowledge that while various independently owned and operated entities may utilize the “Mellow” brand, intellectual property, or Platform Services pursuant to licensing agreements, each such entity is a distinct legal and operational entity. No joint venture, partnership, employment, or agency relationship exists between any Mellow licensor, Mellow licensee, or any Provider. You agree that any claim, dispute, or liability arising out of your presence at a specific physical location is strictly limited to the distinct entity operating that specific location, and you expressly waive any right to pursue claims against any other Mellow Entities under theories of alter ego, joint employer, ostensible agency, or single enterprise liability.
2. Cancellations and No Shows
You acknowledge and agree that the independent Providers independently establish their own cancellation parameters to protect their time and livelihoods.
If you need to cancel or reschedule an appointment for Provider Services, you must do so directly through the Platform Services or by contacting your Provider directly.
You explicitly acknowledge that Mellow’s payment processing architecture enforces a default technological minimum of twenty-four (24) hours for automated charge facilitation. If a Provider elects to utilize Mellow’s automated cancellation enforcement via the Platform Services, this 24-hour window applies. If you cancel or reschedule within twenty-four (24) hours of your scheduled appointment time, or if you fail to appear for your scheduled appointment, you explicitly authorize Mellow, acting strictly in its capacity as a limited payment collection agent for the Provider, to charge your payment method on file for the full amount of the scheduled Provider Services. Providers may negotiate alternative cancellation terms or issue waivers directly with you outside of the automated Platform Services. You acknowledge that any automated charge is enacted strictly on behalf of the Provider to compensate them for reserved time and lost income, and is entirely non-refundable.
3. Assumption of Risk & Statutory Release of Liability
You acknowledge and agree that massage, body-work, and related physical therapies (the “Provider Services”) involve physical manipulation of soft tissue, muscles, and joints, which carry inherent risks, including but not limited to the exacerbation of underlying conditions, bruising, muscle soreness, or severe bodily injury. You acknowledge that it is your sole responsibility to communicate all pertinent health information, medical conditions, and physical limitations directly to your independent Provider prior to receiving Provider Services.
By voluntarily electing to receive Provider Services, you expressly assume all risks of property damage, personal injury, and any other physical or psychological outcome, whether known or unknown, foreseeable or unforeseeable, associated with the Provider Services.
In consideration for your use of the Platform Services to connect with a Provider, you hereby unconditionally release, covenant not to sue, and forever discharge the Mellow Entities from any and all liability, claims, or causes of action arising out of or related to your receipt of Provider Services.
California Civil Code § 1542 Waiver: You acknowledge that you have read and understand Section 1542 of the California Civil Code, 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.” You hereby expressly waive and relinquish all rights and benefits under Section 1542 and any similar law of any jurisdiction with respect to the releases granted in this Agreement.
4. Release of Liability for Provider Acts and Platform Facilitation
To the maximum extent permitted by applicable law, and without limiting the releases and indemnities set forth in Sections 1 and 3 above, you expressly acknowledge that Mellow exercises no control, supervision, or direction over the Providers, their methods, or their delivery of Provider Services.
Consequently, you hereby unconditionally release and forever discharge the Mellow Entities from any and all liability, claims, demands, or causes of action arising out of or related to the acts, omissions, negligence, gross negligence, or intentional torts of any Provider. This release expressly encompasses and unconditionally bars any claims brought against the Mellow Entities alleging negligent hiring, negligent retention, negligent credentialing, or negligent facilitation in connection with allowing any Provider to access or utilize the Platform Services.
5. Payment Processing & Collection Agency
You acknowledge and agree that Mellow acts strictly as a limited payment collection agent on behalf of the independent Providers. When you pay for Provider Services through the Platform Services, you are executing a transaction directly with the Provider. Your payment of the amounts due, when successfully processed through our third-party payment gateway, shall be considered the legal equivalent of a payment made directly by you to the Provider, and your payment obligation to the Provider is fully satisfied upon the processor’s receipt of such funds.
Mellow utilizes independent, PCI-compliant third-party payment processors to vault your credentials and execute transactions. Your payment details are not stored on Mellow’s servers. The Mellow Entities expressly disclaim any and all liability for any data breaches, unauthorized access, routing errors, or operational failures originating from such third-party payment processors.
Because Mellow merely facilitates the technological transaction, all pricing, refund, and dispute policies are dictated solely by the independent Providers. While Mellow may provide technological assistance in mediating billing inquiries or initiating refunds via the Platform Services as an agent of the Provider, any substantive dispute regarding the cost, quality, or delivery of the Provider Services remains strictly between you and the independent Provider.
6. Independent Provider Structure & Health Disclosures
Provider Independence and Credentialing: You acknowledge that Mellow operates strictly as a technology platform and/or space licensor. Providers are wholly independent professionals who alone determine their rates, schedules, methodology, and the manner of their service delivery. By accessing the Platform Services, each Provider represents and warrants to Mellow and to you that they maintain all active, applicable local and state licenses required to perform the Provider Services. While Mellow requires Providers to make these representations and reserves the right to suspend platform access for non-compliance, Mellow acts strictly in reliance on the Providers’ representations. Mellow explicitly disclaims any liability for a Provider’s lapsed credentials, professional acts, omissions, malpractice, or non-compliance with health and safety regulations.
Health Intake and Records: To facilitate a safe experience, the Platform Services may provide digital intake forms allowing you to disclose relevant health concerns, diagnoses, allergies, pre-existing conditions, or physical limitations. You acknowledge and agree that this information is transmitted directly and exclusively to your chosen independent Provider. Mellow acts solely as a third-party technology service provider, storing and routing this data strictly on behalf of the Provider.
Mellow does not review, evaluate, or “consider” your health information, nor does Mellow make clinical decisions, product recommendations, or therapeutic assessments. It is your sole responsibility, and the sole responsibility of your independent Provider, to review your health disclosures and determine whether the Provider Services are medically appropriate. You expressly acknowledge that Mellow bears no liability whatsoever for any injury, adverse reaction, or medical issue arising from your failure to disclose pertinent health information to your Provider, or from your Provider’s failure to appropriately act upon such information.
7. Third-Party Websites and Content
The Platform Services may contain (or you may be routed via the Site to) links to other websites (“Third-Party Websites”) as well as articles, text, graphics, pictures, information, applications, software, and other content belonging to or originating from third parties, including but not limited to content, links, or marketing materials provided by the independent Providers (“Third-Party Content”).
You acknowledge that Mellow exercises no control over Third-Party Websites or Third-Party Content. Such websites and content are not investigated, monitored, or checked for accuracy, appropriateness, safety, or completeness by Mellow. Mellow explicitly disclaims any responsibility for any Third-Party Websites accessed through the Platform Services or any Third-Party Content posted on or available through the Platform Services. Inclusion of, linking to, or permitting the use of any Third-Party Websites or Third-Party Content does not imply approval, endorsement, or assumption of a duty of care by Mellow.
If you decide to leave the Platform Services and access Third-Party Websites or use any Third-Party Content, you do so entirely at your own risk. Any purchases you make through Third-Party Websites are executed exclusively between you and the applicable third party. You agree that Mellow does not endorse the products or services offered on Third-Party Websites. You hereby unconditionally release and forever discharge the Mellow Entities from any and all claims, liabilities, damages, or causes of action (including but not limited to product liability, bodily injury, or financial loss) arising from or related in any way to your purchase of such products or services, your reliance on Third-Party Content, or your interaction with Third-Party Websites.
8. Intellectual Property and Limited License
Subject to your compliance with this Agreement, Mellow grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Platform Services strictly for your personal, non-commercial use (or, if you are a Provider, for the authorized commercial purpose of receiving marketplace facilitation).
The Site, the Platform Services, and all underlying technology, software, designs, trademarks, trade dress, and logos are the exclusive property of Mellow and its licensors. You shall not: (i) copy, modify, distribute, sell, or lease any part of our Platform Services; (ii) reverse engineer or attempt to extract the source code of the software; (iii) use any robot, spider, scraper, or other automated means to access the Platform Services or extract data; or (iv) bypass or circumvent any security measures.
9. User-Generated Content
By posting, uploading, or submitting any reviews, comments, images, profile data, or other content (“User Content”) to the Platform Services, you grant Mellow a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised, without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
10. DMCA Notice and Takedown Procedure
Mellow respects the intellectual property rights of others. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Platform Services, please notify Mellow’s copyright agent pursuant to the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing: (1) an electronic or physical signature of a person authorized to act on behalf of the copyright owner; (2) identification of the copyrighted work that you claim has been infringed; (3) identification of the material that is claimed to be infringing and where it is located on the Platform Services; (4) information reasonably sufficient to permit Mellow to contact you, such as your address, telephone number, and email address; (5) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and (6) a statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
DMCA Notices must be sent to: Legal Department, Mellow Massage, LLC, 1050 University Ave, San Diego, CA 92103, Email: info@mellow-massage.com.
11. Mobile Application / App Store Sourced Application
If you access or download the Platform Services via an application from the Apple App Store or Google Play Store (each an “App Store”), you acknowledge and agree that this Agreement is concluded between you and Mellow only, and not with the App Store. Mellow, not the App Store, is solely responsible for the Platform Services and the content thereof. The App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Platform Services. In the event of any failure of the Platform Services to conform to any applicable warranty, you may notify the App Store, and the App Store will refund the purchase price for the application to you (if applicable); and, to the maximum extent permitted by applicable law, the App Store will have no other warranty obligation whatsoever with respect to the Platform Services. The App Store is not responsible for addressing any claims by you or any third party relating to the Platform Services. You and Mellow acknowledge and agree that the App Store and its subsidiaries are third-party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, the App Store will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
12. Term and Termination
This Agreement will remain in full force and effect while you use the Platform Services or maintain an active account. You may terminate your account and this Agreement at any time through your account settings or by submitting a written cancellation request to Mellow. Mellow may terminate this Agreement and your access to the Platform Services by providing written notice (e-mail is sufficient).
Termination and Suspension Rights: In addition to its general termination rights, Mellow reserves the right to immediately suspend or restrict your account, or permanently terminate your access to the Platform Services, without prior notice, if Mellow, in its sole discretion, determines that: (i) you have breached this Agreement; (ii) you have engaged in abusive, threatening, fraudulent, or unsafe behavior toward any independent Provider, Mellow personnel, or other users; (iii) your actions pose a legal or physical risk, or material negative impact, to the Mellow Entities or the integrity of the Platform Services; or (iv) you have misrepresented any data or engaged in illegal activities.
No Duty to Monitor: You expressly acknowledge and agree that while Mellow reserves the right to suspend or terminate users for the reasons outlined above, Mellow has no affirmative duty to monitor, investigate, or background-check any user or Provider. Mellow explicitly disclaims any liability for failing to suspend or terminate a user account.
Effect of Termination: Termination will not affect rights or obligations regarding transactions executed prior to termination. Mellow shall bear no liability for any costs, losses, damages, or inconveniences arising out of Mellow’s suspension or termination of your access to the Platform Services. All provisions of this Agreement which by their nature should survive termination shall survive, including but not limited to ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
Post-Termination Data Access: Upon termination, your right to access the Platform Services automatically ceases. However, Mellow may, in its sole discretion and for a limited time, grant you “Limited Access Rights” strictly to view and download previously available account information. Mellow may revoke these Limited Access Rights at any time. Following termination, Mellow will retain, anonymize, or destroy your personal data in accordance with our Privacy Policy and all applicable California and federal privacy laws (including the CPRA), overriding any discretionary retention policies where statutory consumer rights apply.
13. Governing Law
Except as explicitly governed by the Federal Arbitration Act (“FAA”) as set forth in Section 10, this Agreement and any dispute, claim, or cause of action arising out of or relating to your use of the Platform Services or receipt of Provider Services shall be governed by and construed in accordance with the laws of the State in which the applicable Provider Services were rendered, without regard to its conflict of laws principles.
For users who exclusively utilize the Site or Platform Services without receiving physical Provider Services, or for disputes entirely divorced from the physical delivery of services, this Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws principles. Notwithstanding the foregoing, the parties expressly acknowledge and agree that the Platform Services evidence a transaction involving interstate commerce, and that the interpretation, applicability, and enforceability of the Dispute Resolution and Arbitration provisions in Section 10 shall be governed exclusively by the FAA (9 U.S.C. § 1 et seq.).
14. Dispute Resolution and Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY—IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.
Governing Statute and Scope: The parties expressly acknowledge that the Platform Services evidence a transaction involving interstate commerce. Notwithstanding the choice of law provisions in Section 9, the interpretation, applicability, and enforcement of this Section 10 shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”). This arbitration agreement applies strictly to disputes between you and the Mellow Entities. It does not govern disputes strictly between you and an independent Provider.
Notice of Dispute and Informal Resolution: Before initiating arbitration against Mellow, you must first send a written Notice of Dispute (the “Notice”) describing the nature and basis of the claim and the requested relief. A Notice to Mellow shall be sent to: Mellow Massage, LLC, 1050 University Ave, San Diego, CA 92103, with a copy to info@mellow-massage.com. For thirty (30) days following receipt of the Notice, the parties shall attempt in good faith to resolve the dispute informally. If unresolved after thirty (30) days, either party may commence arbitration.
Binding Arbitration: Any dispute, claim, or controversy arising out of or relating to this Agreement, the Platform Services, or the breach, termination, enforcement, interpretation, or validity thereof, that is not resolved informally, shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 10. The arbitration shall be conducted before a single, neutral arbitrator. To ensure fairness and compliance with consumer protection standards, the arbitration shall take place in the United States county where you reside, unless you and Mellow mutually agree otherwise.
Delegation: The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this Agreement and this Section 10.
Class Action Waiver and Mass Arbitration Protocol: YOU AND MELLOW AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING.
If twenty-five (25) or more similar demands for arbitration are filed against Mellow by or with the assistance of the same law firm or coordinated group of law firms (a “Mass Filing”), the AAA shall administer the Mass Filing in batches of fifty (50) demands per batch. The arbitrator and the AAA shall resolve the first batch of fifty (50) demands sequentially (the “Bellwether Batch”). No further arbitration demands in the Mass Filing may be filed, processed, or adjudicated, and no filing fees shall be assessed by the AAA against Mellow for subsequent batches, until the Bellwether Batch has been fully resolved.
Upon the resolution of the Bellwether Batch, the results of those cases shall be used to inform a mandatory, sixty (60) day global mediation for all remaining claims in the Mass Filing. If the global mediation is unsuccessful in resolving the remaining claims, either you or Mellow may opt out of arbitration for the remaining unresolved claims and proceed to litigate those claims in a court of competent jurisdiction. You agree to cooperate in good faith with Mellow and the AAA to implement this batching and mediation approach to facilitate efficient resolution and minimize arbitrary administrative fee burdens.
Exceptions to Arbitration: Notwithstanding the foregoing, either party retains the right to: (i) bring an individual action in small claims court, provided the matter falls within the court’s jurisdictional limits; (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (iii) seek public injunctive relief in a court of competent jurisdiction pursuant to California law, provided that any claim for public injunctive relief shall be severed from the arbitration proceeding and stayed pending the final resolution of the arbitrated claims.
15. Corrections and Platform Accuracy
The Platform Services may contain typographical errors, inaccuracies, or omissions relating to service descriptions, pricing, availability, and various other data. You explicitly acknowledge and agree that the specific pricing, scheduling availability, and professional descriptions associated with the Provider Services are determined and supplied solely by the independent Providers, not by Mellow.
Mellow reserves the right to correct any digital or typographical errors, inaccuracies, or omissions, and to change or update information on the Platform Services at any time, without prior notice. However, in the event of a material error regarding the pricing or availability of a Provider Service you have already booked, Mellow, acting in its capacity as the platform facilitator, will attempt to notify you of the correction. In such instances, your sole and exclusive remedy shall be the right to cancel the affected booking without penalty.
To the maximum extent permitted by applicable law, Mellow explicitly disclaims any liability for any direct or indirect damages suffered by you or any third party as a result of reliance on typographical errors or inaccuracies, particularly regarding information supplied by independent Providers or other third parties.
16. Limitations of Liability and Liability Cap
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MELLOW ENTITIES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO YOUR USE OF, OR INABILITY TO USE, THE PLATFORM SERVICES.
UNDER NO CIRCUMSTANCES WILL THE MELLOW ENTITIES BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PLATFORM SERVICES OR YOUR ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MELLOW ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE PLATFORM SERVICES OR FROM THE ACTS OR OMISSIONS OF ANY INDEPENDENT PROVIDER; OR (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN.
LIABILITY CAP: IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF THE MELLOW ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO MELLOW (EXCLUDING AMOUNTS TRANSMITTED TO PROVIDERS) DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) ONE HUNDRED U.S. DOLLARS ($100.00).
THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO LIABILITY RESULTING FROM THE MELLOW ENTITIES’ GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
17. Time Limitation on Claims
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PLATFORM SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THAT APPLICABLE STATE LAW PROHIBITS THE CONTRACTUAL SHORTENING OF THE STATUTE OF LIMITATIONS FOR SPECIFIC CLAIMS INVOLVING BODILY INJURY OR STATUTORY CONSUMER RIGHTS, THE SHORTEST TIME PERIOD PERMITTED BY SUCH APPLICABLE LAW SHALL APPLY TO THOSE SPECIFIC CLAIMS.
18. Indemnification
You agree to defend, indemnify, and hold the Mellow Entities harmless, including our parent companies, subsidiaries, affiliates, and all of our respective officers, directors, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party (including any independent Provider) due to or arising out of: (1) your breach of this Agreement; (2) your breach of any representation or warranty set forth in this Agreement; (3) your violation of the rights of a third party, including but not limited to intellectual property or privacy rights; (4) your violation of any applicable federal, state, or local law or regulation; or (5) your negligence, gross negligence, or intentional misconduct, including but not limited to any bodily injury or property damage you cause to any independent Provider or to any physical premises leased, licensed, or operated by Mellow.
Notwithstanding the foregoing, Mellow reserves the right, at your reasonable expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, provided that Mellow utilizes counsel of its choosing at commercially reasonable rates. You agree to fully cooperate, at your expense, with our defense of such claims. Mellow will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it. You agree not to settle any matter subject to this indemnification without the prior written consent of Mellow.
19. User Data and Platform Records
Mellow will maintain certain data that you transmit to the Platform Services for the purpose of managing the technical performance and functionality of the Platform Services. While Mellow utilizes commercially reasonable security measures and performs routine data backups, you are solely responsible for maintaining localized copies of any data, forms, or information you transmit via the Platform Services.
To the maximum extent permitted by applicable law, including the California Privacy Rights Act (CPRA), you agree that Mellow shall not be liable to you for any incidental loss, corruption, or unavailability of such data. Any statutory liability incurred by Mellow regarding data security shall be strictly subject to the Limitation of Liability and Liability Cap set forth in Section 12 of this Agreement.
20. Electronic Communications, Transactions, and Signatures
Mellow will maintain certain data that you transmit to the Platform Services for the purpose of managing the technical performance and functionality of the Platform Services. While Mellow utilizes commercially reasonable security measures and performs routine data backups, you are solely responsible for maintaining localized copies of any data, forms, or information you transmit via the Platform Services.
To the maximum extent permitted by applicable law, including the California Privacy Rights Act (CPRA), you agree that Mellow shall not be liable to you for any incidental loss, corruption, or unavailability of such data. Any statutory liability incurred by Mellow regarding data security shall be strictly subject to the Limitation of Liability and Liability Cap set forth in Section 12 of this Agreement.
21. SMS Text Messaging and TCPA Compliance
Transactional Messages: By providing your mobile phone number and utilizing the Platform Services, you expressly consent to receive automated transactional and informational text messages (SMS) from Mellow, or routed by Mellow on behalf of your selected independent Provider. These transactional messages may include appointment confirmations, scheduling updates, building access codes, and billing notifications (collectively, the “Text Services”).
Promotional Messages & TCPA Consent: You may also be presented with the option to opt-in to receive promotional, marketing, or advertising text messages from Mellow. You acknowledge that your consent to receive promotional text messages is not required as a condition of purchasing any goods or services, nor is it required to utilize the Platform Services or book Provider Services.
Messaging Infrastructure and Opt-Out: You expressly agree that both transactional and promotional messages may be sent using an automatic telephone dialing system (ATDS) or an autodialing system capable of selecting and dialing telephone numbers. Message and data rates may apply. Message frequency varies.
You may opt out of receiving SMS messages at any time by replying “STOP” to any text message you receive from us. After texting “STOP”, you will receive one additional message confirming your opt-out. For assistance or customer care regarding the Text Services, reply “HELP” to any text message you receive from us or contact info@mellow-massage.com.
22. Force Majeure
The Mellow Entities shall not be liable for any delay or failure to perform resulting from causes outside their reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials, or regional internet, telecommunications, or server hosting outages.
23. Force Majeure
The Mellow Entities shall not be liable for any delay or failure to perform resulting from causes outside their reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials, or regional internet, telecommunications, or server hosting outages.
24. Miscellaneous
Amendments: Mellow reserves the right to modify the terms, conditions, and policies governing the Platform Services, including this Agreement and our Privacy Policy, at any time. Mellow also reserves the right to modify any fees associated with the Platform Services; however, Mellow does not control or modify the specific service rates set independently by the Providers. For any material changes to this Agreement, Mellow will provide commercially reasonable affirmative notice, which may be delivered via email, a conspicuous notification on the Site, or an in-app alert, at least thirty (30) days prior to the effective date of the changes.
If you do not agree to the modified terms, you must cease using the Platform Services prior to the effective date. Your continued use of the Platform Services following the effective date constitutes your binding acceptance of the updated Agreement. Notwithstanding the foregoing, any modifications to Section 10 (Dispute Resolution and Binding Arbitration) shall not apply to any specific dispute or claim of which Mellow had actual written notice prior to the effective date of the amendment.
Entire Agreement: This Agreement, including any incorporated policies or waivers, constitutes the entire understanding between you and Mellow concerning the subject matter herein, superseding all prior or contemporaneous communications, agreements, or understandings, whether oral or written.
No Waiver: No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any waiver must be explicitly set forth in writing and signed by the waiving party.
Severability: If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court or arbitrator of competent jurisdiction, such provision shall be modified to the minimum extent necessary to render it enforceable while preserving the original intent of the parties. If modification is not possible, the provision shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.
Third-Party Beneficiaries: Except as expressly provided herein, this Agreement does not confer any legal or equitable rights, benefits, or remedies upon any person or entity other than you and Mellow. Notwithstanding the foregoing, you expressly acknowledge and agree that the independent Providers, as well as the indemnified Mellow Entities defined in Sections 1, 3, 4, 12, and 13, are intended third-party beneficiaries of the release, waiver of liability, assumption of risk, and indemnification provisions of this Agreement, and shall have the right to directly enforce such defensive provisions against you.
Assignment; Successors and Assigns: You may not assign, delegate, or transfer this Agreement, or any of your rights and obligations hereunder, without the prior written consent of Mellow. Mellow may freely assign this Agreement at any time, without notice or consent, including in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
Survival: All provisions of this Agreement which by their nature should survive termination shall survive, including, without limitation, ownership provisions, warranty disclaimers, assumption of risk, releases, indemnity, limitations of liability, and dispute resolution provisions.
25. Electronic Signatures and Affirmative Assent
By checking the box indicating your acceptance, clicking the “I Accept” or “Complete Booking” button, or by affirmatively registering an account on the Platform Services, you are executing this Agreement electronically. You expressly agree that your electronic signature is the legal equivalent of a manual, physical ink signature and that you are entering into a legally binding contract with Mellow.
You further represent and warrant that you are legally authorized to enter into this Agreement. If you are utilizing the Platform Services to arrange Provider Services for a third party, you expressly warrant that you possess the explicit legal authority to accept these terms on their behalf, subject to the indemnification obligations set forth in Section 1 of this Agreement.
You expressly agree that your use of a keypad, mouse, touchscreen, or other device to select an item, button, or icon, or to otherwise provide Mellow with electronic instructions, acknowledgements, or consents constitutes your binding electronic signature (“E-Signature”). You waive any defense regarding the validity, enforceability, or admissibility of this Agreement predicated on the fact that it was transmitted or authorized electronically. You further agree that no certification authority or other third-party verification is necessary to validate your E-Signature.
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