MELLOW
MASSAGE

These Terms of Use (the “Terms”) reflect the terms and conditions that you agree to when they create, maintain, and use an account with Mellow Massage Pacific Beach, LLC (hereinafter, the “Company”). As reflected above, subscribing members of Mellow Massage Pacific Beach, LLC (hereinafter, “you” or “Member”) are strongly encouraged to read these Terms. Company reserves the right to change these terms at any time and will notify you if such changes take place.

Subscription Agreement

Pursuant to Company’s marketing materials, this subscription grants you limited rights to discounted massage services and other perks provided by Company (the “Services”). The Services are set forth at the end of this Section 1 and by entering into this Agreement you agree that the Services in consideration for the monthly fee (the “Fee”) is good and valuable consideration for which you are satisfied. Company asserts and you accept that the Services reflect a  As reflected herein, at the discretion of the Company, the Services may be amended from time to time. The services included are:

Mellow Membership – $109 per month.

• 1 x 80 minute standard massage per calendar month;
• 10% discount on any other services offered by Mellow;
• Your included services per month will not accrue. If you do not use a credit in one month, it will not roll over.
• Credits do NOT roll over.

Authorization to Charge Card

By signing this Agreement you agree that Company may charge the credit or debit card that you place on file with Company. You authorize that even should you skip a month of services, such a charge may be made as the consideration for Company holding resources aside and maintaining a prebooked appointment for you to ensure you can use your credit. If you refuse a prebooked appointment you understand and agree that the monthly charge will still be processed if you do not use your credit.. The monthly Fee will be charged each calendar month, in the amount agreed to and set forth on the marketing materials attached here.

Term & Termination

You may call us to terminate Services, with such termination taking effect 30 days after such call. You agree that this Agreement is self-renewing, on a month to month basis, until it is terminated by you. To terminate this Agreement you may notify us by email, by phone, or at the front desk. Termination shall take effect 30 days from the time you notify us of such termination and may overlap with the following month of Services – in which case additional charges may be applied. 

Health & Safety

It is our goal to provide you with a healthy and safe atmosphere and massage experience. To that end, we will prepare a wellness log, or maintain a chart of your stay. This record may be shared with other massage locations upon your reasonable request. You may, at your sole discretion, request record be destroyed in full should you desire, and, unless there is a legal reason prohibiting such destruction, we will seek to abide by your request. Please be aware that we may recommend products from time to time. Such recommendation is made as a general suggestion – only you know your body, your past health issues, and your sensitivities. We suggest you consult with your doctor before taking any supplementals or health plan into action.

Notice of Health Issues.

You are obligated to notify Company about any health concerns, diagnosis, allergies, pre-existing conditions, discomfort during (or before and after) treatment, limitations, and sensitivities (as well as any other concerns you may have). 

Minimum Age

By entering into this Agreement you represent and assert that you are 18 years or older, of sound mind and body, and not subject to any legal restrictions to entering into contracts. Should Company learn anything to the contrary of such representation, this Agreement may be immediately terminated without notice or recourse. 

Personal Privacy

We seek to strictly abide by the California Consumer Privacy Act – as such we do not market your information by selling it to ‘data brokers’ or third parties to whom we are not directly affiliated with and utilize your information solely for our internal business purposes. In the event of a complaint, review, internal investigation, or other matter where we review our business activities, employee matters, and any customer complaint, we will not share the results of such activities, complaints, or matters – as we do not want individual information to be disclosed and violate an individual’s privacy.

Arbitration

Any dispute arising under this Agreement shall first seek resolution via reasonable negotiation. Should such fail the parties agree to seek to resolve such dispute via mediation, with the costs of such mediation borne equally by the parties, except attorney fees, which shall be borne by the respective parties. Should such mediation fail, the parties hereby irrevocably and knowingly agree to resolve the dispute via binding arbitration under the then most relevant rules of JAMS, before a singular arbitrator, who shall be selected by the current rules of JAMS if the parties cannot agree upon an arbitrator within 30 days of the issuance of a demand for such. The arbitrator may award reasonable costs and fees to the prevailing party.

General Release

By entering into a contractual relationship with Company you hereby release Company and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to, or arises from, activities you or those under your guidance, oversight, control, supervision, or under your assistance via Company services or as may arise while you are on the Company premises or utilizing products recommended by Company You specifically waive your rights under California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” 

Waiver of Liability

You agree, to the fullest extent legally permissible, that you waive all claims, accept full liability, and shall release, hold harmless, indemnify, and agree to defend Company (including our owners, affiliates, and partners), and our product suppliers, from any injury, loss, damage, class action, suit, cause of action, or other claim that may arise.  You relieve and release Company (including its owners, affiliates, and partners) from any and all claims relating to personal injury, property damage, economic loss, consequential damages, liquidated damages, and punitive damages. Further, you agree and assent that you are solely liable and responsible to notify Company of any health issues, concerns, sensitivities, allergies, limitations, pre-existing conditions, aches, pains, soreness, or other ‘need to know’ information.  

Assumption of Risk

You expressly agree and assent that the foregoing waiver of liability, taken with the rest of this Waiver, is intended to be as broad and as inclusive as permitted by law and that is any portion is held to be invalid such portion shall be treated as though it were never a part of this Waiver and the remainder shall survive and remain in full force and effect. This Waiver and all releases and indemnification associated with it shall be binding upon yourself, your estate, family, heirs, administrators, personal representatives, and assigns.

Privacy Rights

Company aims to follow all relevant privacy laws and regulations. To that end, we do not sell your information or operate as a ‘data broker’ as defined by the California Consumer Privacy Act. If you have any questions relating to our privacy policies, please contact us and we all be glad to assist you. 

Law Enforcement Compliance

In the event Company receives a lawful order from a court of law with jurisdiction over Company, or is subject to a search pursuant to a lawfully issued warrant from a court of competent jurisdiction, Company shall comply in accordance with the laws governing such warrant or order. Company strives to comply with all lawful local, state, and federal laws and regulations and may not notify Clients of such orders or warrants if Company is subject to a ‘gag order’ or order to remain silent relating to searches or document demands.

Miscellaneous

Location Based Company

This Agreement is solely for the Company location at which you signed this Agreement. Mellow Massage Pacific Beach, LLC is a concept that is licensed to multiple locations, each of which is separately operated and has no commonality with the other in regards to Agreements such as this. At the sole discretion of the operating manager of each location, this Agreement may be transferred to another location or honored at another location. By signing this Agreement you irrevocably agree that you shall not initiate any legal action against a sister company of Company, or Company’s owners, operators, investors, managers, or agents.

Governing Law

The laws governing this Agreement shall be the laws of the State of California, regardless of any conflict of laws principles. 

Venue

Venue for any dispute arising under this Agreement shall be within the County of San Diego, California. 

Dispute

In the event of a dispute between you and Company, you agree that the first step in resolving such dispute shall be reasonable and good faith negotiations to resolve such. In the event no reasonable compromise can be reached, leading to a satisfactory settlement of the dispute, you agree to binding arbitration, as set forth in the following subsection 10.4, caveated by the exception at subsection 10.5.

Arbitration

Excepting matters for injunctive relief, any claim or controversy arising out of or relating to the Agreement, including, without limitation, Company’s services, or interpretation of the Agreement, shall be settled either by mediation instituted at the request of either party, or if not resolved by mediation, by arbitration. Such arbitration shall be under the relevant rules of arbitration as published by JAMS, conducted before a single arbitrator agreed upon by and between the parties hereto. Such arbitrator shall not award punitive, liquidated, or other special damages. Such arbitrator may award reasonably calculated damages, arbitration fees, and attorney fees to the prevailing party. Any mediation or arbitration will be in the State of California unless otherwise agreed to by both parties. Judgment on any arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy.

Small Claims

In the event of a dispute less than $5,000.00 (inclusive of filing fees and limited attorney consulting fees), such dispute shall be resolved in the Small Claims division of the Superior Court of California in the County wherein Company is located. The parties expressly agree and understand that small claims is the most cost efficient process for resolving consumer complaints for such limited dollar amounts.

Waiver

BY ENTERING INTO THIS AGREEMENT YOU ARE WAIVING ANY AND ALL RIGHTS TO A TRIAL BY JURY OR A BENCH TRIAL. YOU ARE AGREEING TO RESOLVE MOST GRIEVANCES WITH BY SETTLEMENT OR ARBITRATION. SUBJECT TO SUBSECTION 10.5 HEREOF, YOU AGREE TO RESOLVE GRIEVANCES LESS THAN $5,000.00 USD IN THE SMALL CLAIMS DIVISION OF THE SUPERIOR COURT IN THE COUNTY IN WHICH YOU ENTERED INTO THIS AGREEMENT. 

Limitation of Damages

In any action, neither party may seek liquidated, speculative, or other forms of ‘special’ damages. A prevailing party may seek costs of arbitration and reasonable attorney costs and fees.

Notices

Notices may be sent to you at the address you provide upon entering into this Agreement or by email. Such notices shall be deemed delivered either three (3) days after any email is sent to your address of record or 

Assignment

The rights, benefits, and obligations by the parties hereto shall not be assigned, transferred, or otherwise conveyed to a party not of this Agreement. Any attempt to do so will result in the termination of this Agreement, unless such is an attempt to avoid a debt, obligation, or hindrance.. The foregoing notwithstanding, in the event Company is dissolved, acquired, merged, or otherwise goes through a change of ownership, Company, or Company’s successor in interest, shall notify you of such event and such shall be deemed an acceptable assumption of the rights, obligations, and responsibilities held by Company.

Severability

Should any court of competent jurisdiction determine a part of these Terms to be unenforceable, such language shall be deemed to have never been a part of these Terms, but the remaining portions shall survive and remain in full force and effect. The foregoing notwithstanding, in the event the court can determine a method by which the unenforceable language can be remedied in order to remain in full force and effect, with the original intention of the parties hereto, such remedy may be implemented for the purposes of the legal action involving such court of competent jurisdiction.

Modification

These Terms may be modified by the Company from time to time. Such modification(s) may be necessary to comply with new government statutes, regulations, or requirements. Company will notify you of the modified Terms via email. If you decline to accept such modification(s) you agrees hereto that the only option is the prompt discontinuation of your account and cessation of services from Company.

Entirety of the Agreement

The foregoing terms and conditions shall comprise the entirety of the Terms entered into by and between you and the Company. No advertisement, statement, or other evidence shall be a part of these Terms unless specifically incorporated by reference herein.