Mellow
IN-PERSON PHYSICAL LIABILITY WAIVER AND ASSUMPTION OF RISK
PLEASE READ CAREFULLY. THIS DOCUMENT CONTAINS A COMPREHENSIVE RELEASE OF LIABILITY AND A WAIVER OF YOUR LEGAL RIGHTS TO SUE FOR PHYSICAL INJURY OR HARM.
DEFINITION OF PARTIES
This In-Person Physical Liability Waiver and Assumption of Risk (the “Waiver”) is a legally binding agreement entered into by you, on behalf of yourself, your spouse, heirs, dependents, legal representatives, and assigns (“User” or “Client”). By signing this Waiver and entering the physical premises, you explicitly acknowledge and assent to the operational architecture of the facility, which is strictly divided into three severable tiers:
A. The Independent Providers (The Sole Clinical Actors): You expressly acknowledge that all massage, bodywork, and therapeutic services (the “Provider Services”) are performed exclusively by third-party, state-licensed professionals (“Independent Providers”). The Independent Providers are independently owned and operated businesses. They are the sole clinical actors. They alone dictate the manner, method, pressure, and clinical execution of the Provider Services.
B. The Studio Entity (Real Estate Lessor): You acknowledge that the physical facility you are entering is operated by a location-specific limited liability company, which may include Mellow Downtown, LLC; Mellow Massage Pacific Beach, LLC; Mellow Hillcrest, LLC; Mellow North Park, LLC; Mellow La Jolla, LLC; or other affiliated location-specific entities (the “Studio Entity”). The Studio Entity acts strictly as a real estate lessor and facility manager. It merely licenses a physical room to the Independent Provider. The Studio Entity exercises zero clinical control, supervision, or oversight over the Independent Provider or the Provider Services.
C. The Platform Provider (Software Licensor): You acknowledge that Mellow Massage, LLC (the “Platform Provider”) is exclusively a technology and intellectual property company. The Platform Provider does not own the physical premises, does not employ the Independent Providers, and is entirely severed from the physical delivery of the Provider Services.
D. Waiver of Ostensible Agency and Defined Released Parties: You explicitly agree that no joint venture, partnership, employment, or agency relationship exists among the Independent Provider, the Studio Entity, and the Platform Provider. You affirmatively waive any claim of “ostensible agency” or “apparent authority.” You acknowledge that the Independent Provider’s use of Mellow-branded software, administrative amenities, or branded apparel does not render them an employee or agent of the Studio Entity or the Platform Provider. The Studio Entity, the Platform Provider, and their respective owners, members, managers, officers, directors, employees, software licensors, and agents shall hereafter be collectively referred to as the “Released Corporate Parties.” You expressly agree that you are looking solely to the Independent Provider for the safe and professional delivery of the Provider Services, and you unconditionally waive any right to hold the Released Corporate Parties vicariously liable for the physical acts, omissions, or torts of the Independent Provider.
2. EXPRESS ASSUMPTION OF CLINICAL AND PHYSICAL RISK
A. Inherent Risks of Massage and Bodywork: You expressly acknowledge and understand that receiving massage, bodywork, myofascial release, and related therapeutic modalities (the “Provider Services”) involves certain inherent, foreseeable, and unforeseeable risks of physical harm. You recognize that the human body reacts unpredictably to physical manipulation and that the Independent Provider cannot guarantee a specific outcome or a pain-free experience.
B. Explicit Categorization of Physical Risks: By choosing to receive the Provider Services, you affirmatively acknowledge that the physical risks include, but are not limited to:
(i) Temporary or prolonged muscle soreness, fatigue, or stiffness;
(ii) Bruising, superficial tissue damage, or dermatological irritation;
(iii) Allergic, dermatological, or systemic reactions to topical lotions, essential oils, lubricants, or sanitizing agents utilized during the session;
(iv) Fainting, dizziness, sudden fluctuations in blood pressure, or nausea;
(v) The exacerbation, triggering, or worsening of known or unknown pre-existing medical conditions, chronic pain, or latent physical injuries; and
(vi) In rare instances, catastrophic bodily injury, nerve damage, or death.
C. Voluntary Assumption of Risk: You certify that you are voluntarily participating in the Provider Services with full, comprehensive knowledge of the inherent dangers and physical risks involved. To the absolute maximum extent permitted by California law, you expressly, unconditionally, and voluntarily assume all primary and secondary risks of personal injury, bodily harm, illness, exacerbation of pre-existing conditions, or death arising out of or related to your receipt of the Provider Services, whether such harm is caused by the inherent nature of the bodywork, the physiological response of your body, or the ordinary negligence of the Independent Provider, the Studio Entity, or the Platform Provider (including the ordinary negligence of their respective owners, officers, employees, or agents).
3. PREMISES LIABILITY AND INFECTIOUS DISEASE WAIVER
A. General Premises Assumption of Risk: You expressly acknowledge that entering a commercial physical facility inherently involves risks, including but not limited to slips, trips, falls, and interactions with other patrons. You voluntarily assume all risks associated with your presence at the Studio Entity, including navigating the lobby, hallways, restrooms, and treatment rooms. To the absolute maximum extent permitted by law, you explicitly waive and release the Released Corporate Parties from any and all liability for personal injury, bodily harm, or property damage resulting from the condition, maintenance, or layout of the physical premises, including claims arising from ordinary premises negligence.
B. Personal Property Disclaimer: Neither the Released Corporate Parties nor the Independent Provider shall be held liable for the loss, theft, destruction, or damage of any personal property, valuables, or electronics brought onto the premises by you. You are exclusively responsible for securing your own belongings at all times.
C. Infectious Disease and Pathogen Waiver: You explicitly acknowledge that close physical proximity to the Independent Provider and other patrons, as well as the use of shared facility spaces, carries an inherent risk of exposure to infectious diseases, airborne pathogens, and skin-borne bacteria. This includes, but is not limited to, COVID-19, Influenza, MRSA, staph infections, fungal infections, and other communicable diseases.
(i) Assumption of Disease Risk: You affirmatively warrant that you understand the highly contagious nature of these pathogens and that you voluntarily assume the risk that you may be exposed to or infected by such diseases while on the premises.
(ii) Waiver of Disease Liability: You unconditionally release, waive, and forever discharge the Released Corporate Parties and the Independent Provider from any and all claims, causes of action, damages, or liabilities—including those sounding in ordinary negligence—arising out of or relating to your exposure to, or contraction of, any infectious disease or pathogen during your presence at the Studio Entity or your receipt of the Provider Services.
4. COMPREHENSIVE RELEASE OF LIABILITY AND VICARIOUS TORT LIMITATION
A. The Primary Release: To the absolute maximum extent permitted by California law, you, on behalf of yourself, your spouse, heirs, dependents, estates, legal representatives, and assigns, hereby expressly release, waive, and forever discharge the Released Corporate Parties, as well as the Independent Provider, from any and all claims, demands, damages, rights of action, or causes of action of any kind, whether known or unknown, foreseen or unforeseen, arising out of or resulting from your presence at the physical facility or your receipt of the Provider Services. This release explicitly encompasses claims for personal injury, bodily harm, emotional distress, medical expenses, loss of consortium, and death, including those arising from the ordinary negligence of the Released Corporate Parties or the Independent Provider.
B. Limitation on Vicarious Liability and Credentialing Claims: You expressly acknowledge that the Released Corporate Parties exercise zero clinical control over the Independent Providers. Accordingly, you unconditionally waive, bar, and release any and all claims against the Released Corporate Parties seeking to hold them directly or vicariously liable for the acts, omissions, or intentional torts of the Independent Provider. This explicitly includes, but is not limited to, an absolute waiver of any claims against the Released Corporate Parties alleging:
(i) Negligent hiring, negligent retention, or negligent selection of the Independent Provider;
(ii) Negligent credentialing or failure to adequately verify state licensure or disciplinary history;
(iii) Negligent training, supervision, or clinical oversight;
(iv) Negligent facilitation of the Provider Services via the software platform or the physical lease; or
(v) Vicarious liability for professional malpractice, assault, battery, harassment, or any intentional physical tort committed by the Independent Provider.
C. Statutory Limitation on Release: You acknowledge that under California law, this Section 4 releases claims based on ordinary negligence and strict liability. It does not release claims arising from the gross negligence, reckless misconduct, or willful and intentional torts of the specific entity or individual you are attempting to hold liable. However, you explicitly reiterate that any gross negligence or willful misconduct committed by the Independent Provider cannot be legally imputed to the Released Corporate Parties due to the strict severability of the entities.
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. HEALTH DISCLOSURE AND MEDICAL DISCLAIMER
A. Affirmative Warranty of Physical Fitness: By executing this Waiver and electing to receive the Provider Services, you affirmatively represent and warrant that you are in good physical health, that you possess no known or latent medical conditions that would render massage or bodywork dangerous or contraindicated, and that you are physically capable of safely receiving the Provider Services.
B. Strict Burden of Medical Clearance: You explicitly acknowledge that the burden of determining the medical safety and appropriateness of the Provider Services rests entirely and exclusively upon you. If you suffer from any cardiovascular conditions, orthopedic injuries, communicable diseases, dermatological conditions, neuropathy, cancer, severe allergies, or if you are pregnant or taking medications that affect blood coagulation or pain threshold, it is your strict obligation to obtain clearance from a licensed primary care physician prior to receiving the Provider Services. Neither the Independent Provider nor the Released Corporate Parties are obligated to demand proof of such medical clearance.
Strict Burden of Medical Clearance: You explicitly acknowledge that the burden of determining the medical safety and appropriateness of the Provider Services rests entirely and exclusively upon you. If you suffer from any cardiovascular conditions, orthopedic injuries, communicable diseases, dermatological conditions, neuropathy, cancer, severe allergies, or if you are pregnant or taking medications that affect blood coagulation or pain threshold, it is your strict obligation to obtain clearance from a licensed primary care physician prior to receiving the Provider Services. Neither the Independent Provider nor the Released Corporate Parties are obligated to demand proof of such medical clearance.
C. Disclaimer of Medical Diagnosis and Treatment: You expressly acknowledge, warrant, and agree that the Provider Services strictly comprise therapeutic massage and bodywork. THE PROVIDER SERVICES DO NOT CONSTITUTE MEDICAL TREATMENT. You acknowledge that:
(i) The Independent Providers are state-licensed massage therapists, not medical doctors, chiropractors, or physical therapists;
(ii) The Independent Providers do not, and are not legally permitted to, diagnose medical conditions, prescribe medications, or perform spinal or skeletal adjustments;
(iii) .The Provider Services are not a substitute for professional medical examination, diagnosis, or treatment; and
(iv) The Released Corporate Parties do not evaluate your health intake forms, review your medical history, or assess the clinical appropriateness of your requested booking.
D. Duty to Disclose and Immediate Cessation: You agree that it is your sole responsibility to fully, accurately, and honestly disclose all relevant physical injuries, medical conditions, and allergies directly to the Independent Provider prior to the commencement of the session. Furthermore, you assume the affirmative duty to immediately inform the Independent Provider if you experience any pain, severe discomfort, or adverse physical reactions during the session, and you explicitly possess the right and obligation to terminate the session at any time if you feel physically unsafe.
6. CALIFORNIA CIVIL CODE § 1542 WAIVER (BODILY INJURY)
A. Comprehensive Waiver of Unknown Physical Claims: With respect strictly to the bodily injury, clinical malpractice, premises liability, and physical harm releases granted in this In-Person Physical Liability Waiver, you explicitly acknowledge that you have read, understand, and have been given the opportunity to consult with legal counsel regarding 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.”
B. Explicit Relinquishment of Rights: You hereby expressly waive and relinquish any and all rights, protections, and benefits you have or may have under Section 1542 of the California Civil Code, as well as under any other similar state or federal statute or common law principle, with respect to the physical and clinical releases granted in this Waiver. You affirmatively acknowledge that you may hereafter discover physical injuries, latent medical conditions, or legal claims that are presently unknown or unsuspected, or that the facts you currently believe to be true regarding your physical state may turn out to be incorrect. Nevertheless, it is your strict intention, through this Waiver, to fully, finally, and forever release all such unknown or unsuspected physical claims against the Released Corporate Parties and the Independent Provider.
7. INCORPORATION OF ARBITRATION AND CLASS ACTION WAIVER
A. Binding Arbitration for Physical and Clinical Disputes: To prevent the fragmentation of legal claims and to ensure a unified defensive posture, you expressly agree that any and all disputes, claims, or controversies arising out of or relating to your presence at the Studio Entity, your receipt of the Provider Services, or any physical injury, bodily harm, premises liability, or clinical malpractice claims against the Independent Provider, or the Released Corporate Parties, shall be resolved exclusively through binding individual arbitration.
B. Incorporation of Master Terms Protocols: You explicitly acknowledge and agree that this arbitration mandate is strictly governed by the dispute resolution architecture established in Section 9 of the Master Terms of Service. By executing this Waiver, you affirmatively incorporate by reference the entirety of Section 9 of the Master Terms of Service into this document, including, but not limited to:
(i) The exclusive application of the Federal Arbitration Act (FAA);
(ii) The delegation of arbitrability and conscionability questions exclusively to the arbitrator;
(iii) The strict prohibition against class, consolidated, or representative actions (the Class Action Waiver);
(iv) The mandatory “Bellwether Batching Protocol” and “60-Day Global Mediation” procedures designed to efficiently manage mass arbitration filings; and
(v) The specific severability and stay protocols regarding claims for public injunctive relief under California law (the McGill carve-out).
C. Prohibition on Forum Shopping: You expressly acknowledge that the intent of this Section 7 is to completely bar any attempt to bypass the arbitration protocols of the Master Terms of Service by filing physical injury or premises liability claims in state or federal court. The arbitrator, and not any court, shall have the exclusive authority to resolve any dispute relating to the applicability, enforceability, or conscionability of this arbitration mandate as it applies to physical or clinical harm.
8. SEVERABILITY, BLUE-PENCIL DIRECTIVE, AND AFFIRMATIVE ASSENT
A. Severability and Blue-Pencil Directive: If any provision, clause, or waiver contained within this In-Person Physical Liability Waiver is held to be invalid, illegal, or unenforceable by a court or arbitrator of competent jurisdiction within California, such provision shall be deemed severable. To the maximum extent permitted by California law, the adjudicating body is explicitly directed and authorized to amend or “blue-pencil” the invalid provision to achieve the original intent of the parties—specifically regarding the maximum permissible assumption of risk, eradication of vicarious liability, and release of the Released Corporate Parties. If modification is not permitted, the provision shall be severed entirely, and the remaining provisions shall remain in full force and effect. The invalidation of any specific liability release shall not invalidate the arbitration provisions of Section 7.
B. Affirmative Assent and Knowing Execution: By executing this Waiver, whether via physical ink signature, digital stylus on a Studio Entity device, or electronic clickwrap consent prior to your appointment, you affirmatively warrant that:
(i) You have carefully read this entire Waiver;
(ii) You fully understand its terms, including the fact that you are giving up substantial legal rights;
(iii) You understand the strict legal separation between the Independent Provider, the Studio Entity, and the Platform Provider;
(iv) You are of sound mind, not under the influence of any drugs or alcohol that would impair your legal capacity, and are not acting under any duress or coercion;
(v) You intend your signature (or electronic equivalent) to be a complete and unconditional release of liability to the greatest extent allowed by California law; and
(vi) MINOR INDEMNIFICATION: If you are executing this Waiver on behalf of a minor, you explicitly represent that you possess legal guardianship. You further agree to defend, indemnify, and hold harmless the Released Corporate Parties from any and all claims, lawsuits, or demands brought by or on behalf of the minor arising from the Provider Services, including claims alleging ordinary negligence.
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