MASTER TERMS OF SERVICE
Effective Date: May 15, 2025
1. SCOPE OF AGREEMENT AND DEFINITION OF PARTIES
This Master Terms of Service (the “Agreement”) is a legally binding commercial contract entered into by and among you, on behalf of yourself, your spouse, heirs, dependents, and assigns (“User” or “Client”); Mellow Massage, LLC (the “Platform Provider”); and the independently owned and operated limited liability company acting as the real property lessor for the specific physical location you visit, 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 (each a “Studio Entity”).
A. Bifurcated Operations and the Three-Tiered Architecture: You expressly acknowledge, warrant, and agree that the Mellow operational architecture is strictly segregated into three distinct, severable legal and functional tiers. By accessing the digital platform, you explicitly assent to this structure:
(i) The Platform Provider: Acts exclusively as a software facilitator, digital marketplace, and intellectual property licensor. The Platform Provider does not own or operate physical real estate, does not employ massage professionals, and exercises zero control over the delivery of physical services.
(ii) The Studio Entity: Acts exclusively as a real property lessor and facility manager. The Studio Entity merely licenses physical space and administrative amenities to independent professionals.
(iii) The Independent Providers: All massage, body-work, and therapeutic physical services (“Provider Services”) are delivered exclusively by independent, third-party, state-licensed professionals (“Independent Providers”). Independent Providers operate their own distinct businesses. They dictate their own clinical methods, hours, and rates.
B. Limitation of Vicarious Liability and Independent Contractor Acknowledgment: You explicitly acknowledge that the Independent Providers are not employees, agents, representatives, or joint venturers of the Platform Provider or the Studio Entity. The Platform Provider and the Studio Entity act strictly as limited software facilitators and/or payment collection agents. To the absolute maximum extent permitted by California law, you unconditionally waive, bar, and release any and all claims against the Platform Provider and the Studio Entity based on theories of vicarious liability, alter ego, single enterprise, joint employer, or ostensible agency. Furthermore, you expressly waive any claims against the Platform Provider and the Studio Entity alleging negligent hiring, negligent retention, negligent credentialing, or negligent facilitation regarding any Independent Provider’s access to the software or physical premises.
C. Limitation of Scope & Mandatory Physical Waiver: This Agreement governs your use of the websites, billing architecture, and software (collectively, the “Platform Services”). Your physical presence at a Studio Entity location and your receipt of any physical Provider Services are governed by a distinct, mandatory In-Person Physical Waiver, which must be executed prior to receiving physical services.
D. California Exclusivity: The Platform Services, Studio Entities, and Independent Providers operate exclusively within the State of California. This Agreement, your use of the Platform Services, and any disputes arising hereunder are strictly governed by the laws of the State of California, without regard to conflict of laws principles, except where exclusively governed by the Federal Arbitration Act (FAA).
2. ACCOUNT REGISTRATION, SECURITY, AND PLATFORM ACCESS
A. Account Creation and Affirmative Warranties: To access the Platform Services, you must register a digital account (the “Account”). You affirmatively warrant that all personal, contact, and billing information you provide is accurate, complete, and current. You acknowledge that the Platform Provider relies strictly on the accuracy of your representations to facilitate the digital marketplace. Failure to maintain accurate Account information constitutes a material breach of this Agreement and may result in the immediate, unilateral suspension of your software access.
B. Age Restriction and Legal Capacity: The Platform Services are strictly limited to individuals who possess the legal capacity to enter into binding contracts under California law. By executing this Agreement, you affirmatively represent and warrant that you are at least eighteen (18) years of age. If you are utilizing the Platform Services to facilitate bookings for a minor, you explicitly warrant that you are the minor’s parent or legal guardian, and you acknowledge that the minor’s physical presence at a Studio Entity will require the execution of a separate In-Person Physical Waiver. Any falsification of age or identity to bypass these parameters constitutes affirmative fraud.
C. Credential Security and Disclaimer of Liability: Account infrastructure and digital security are managed exclusively by the Platform Provider. You are exclusively responsible for maintaining the strict confidentiality of your Account credentials, passwords, and two-factor authentication routing. You may not authorize any third party to access the Platform Services using your Account. TO THE MAXIMUM EXTENT PERMITTED BY CALIFORNIA LAW, THE PLATFORM PROVIDER EXPLICITLY DISCLAIMS ANY AND ALL LIABILITY FOR UNAUTHORIZED ACCOUNT ACCESS, DATA BREACHES, FRAUDULENT BOOKINGS, OR FINANCIAL LOSSES ARISING DIRECTLY OR INDIRECTLY FROM YOUR FAILURE TO SECURE YOUR ACCOUNT CREDENTIALS. You agree to notify the Platform Provider immediately of any suspected or actual security breach.
D. Bifurcation of Access and Financial Obligations: The Platform Provider, acting in its sole and absolute discretion, reserves the right to restrict, suspend, or terminate your digital Account access for any violation of this Agreement, for abusive digital conduct, or to protect the integrity of the Platform Services. You explicitly acknowledge, warrant, and agree that the Platform Provider’s suspension or termination of your software access does not automatically cancel, void, or toll any underlying financial agreements, pending appointments, or cancellation penalties owed to an Independent Provider or the Studio Entity. You remain fully and independently liable to the third-party Independent Providers for any time reserved or services rendered prior to the revocation of your digital access.
3. PAYMENT PROCESSING AND LIMITED COLLECTION AGENCY
A. Limited Payment Collection Agent Status: You expressly acknowledge, warrant, and agree that the Platform Provider acts strictly as a limited payment collection agent on behalf of the Independent Providers. When you remit payment for Provider Services through the Platform Services, you are executing a bilateral financial transaction directly with the Independent Provider. Your payment of the amounts due, when successfully processed through our designated third-party payment gateway (e.g., Mindbody), shall be considered the legal equivalent of a payment made directly by you to the Independent Provider, and your payment obligation to the Independent Provider is fully satisfied upon the processor’s receipt of such funds. The Platform Provider does not sell, render, or warrant the Provider Services.
B. Third-Party Payment Processors and Disclaimer of Liability: To facilitate these transactions, the Platform Provider utilizes independent, PCI-compliant third-party payment processors (including, but not limited to, Mindbody) to vault your credentials and execute charges. The Platform Provider does not directly store, process, or transmit your raw financial data on its own servers. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PLATFORM PROVIDER AND THE STUDIO ENTITY EXPLICITLY DISCLAIM ANY AND ALL LIABILITY FOR DATA BREACHES, UNAUTHORIZED ACCESS, ROUTING ERRORS, OR OPERATIONAL FAILURES ORIGINATING FROM SUCH THIRD-PARTY PAYMENT PROCESSORS (INCLUDING MINDBODY).
C. Automated Cancellation Enforcement and Financial Authorization: You acknowledge that Independent Providers dictate their own schedules and rely on predictable booking to sustain their independent business operations. Independent Providers maintain absolute discretion over their cancellation policies. If an Independent Provider elects to utilize the Platform Services’ automated cancellation tool, a twenty-four (24) hour minimum parameter will be applied to your booking. By booking a Provider who utilizes this tool, you explicitly and unconditionally authorize the Platform Provider—acting strictly in its capacity as the collection agent for the Independent Provider—to charge your vaulted payment method for the full, non-refundable amount of the scheduled Provider Services. You acknowledge that this automated charge is executed strictly on behalf of the Independent Provider to compensate them for reserved time and lost income.
D. Severability of Refund and Quality Disputes: Because the Platform Provider merely supplies the software facilitation for the transaction, all pricing, refund, and service dispute policies are dictated solely by the Independent Providers. While the Platform Provider may provide technological tools to route billing inquiries, any substantive dispute regarding the cost, quality, adequacy, or delivery of the Provider Services remains strictly and exclusively between you and the Independent Provider. You expressly waive any right to demand refunds, initiate chargebacks, or seek financial restitution from the Platform Provider or the Studio Entity for Provider Services rendered or scheduled by an Independent Provider.
E. Platform Subscriptions, Memberships, and Digital Credits: If you purchase a recurring “Mellow Membership,” subscription, or package through the Platform Services or website, you expressly acknowledge and agree that you are purchasing a digital marketplace subscription from the Platform Provider, not a “massage membership” from a massage employer. Notwithstanding any marketing nomenclature on the website suggesting a membership “includes a massage,” the Platform Provider does not sell, owe, or provide massage therapy. Your monthly fee strictly purchases digital platform credits, which can be redeemed within the software architecture to satisfy the independent rate of your chosen Independent Provider. When you redeem a membership credit to book a session, you are utilizing the Platform Services to execute a separate, bilateral transaction with an Independent Provider. The Independent Provider remains exclusively responsible for the delivery of the Provider Services, and the Platform Provider acts strictly as a payment collection agent and software facilitator.
4. INTELLECTUAL PROPERTY AND SOFTWARE LICENSE
A. Ownership and Reservation of Rights: All intellectual property underlying or contained within the Platform Services (as defined in Subsection 1C)—including but not limited to the source code, user interfaces, text, graphics, proprietary algorithms, trademarks, service marks, trade dress, and logos (collectively, the “Platform IP”)—is the sole, exclusive property of the Platform Provider and its licensors. You expressly acknowledge that neither the Studio Entity nor the Independent Providers possess any ownership interest in the Platform IP. The Platform IP is protected by United States copyright, trademark, and trade secret laws. You acquire absolutely no right, title, or interest in the Platform IP by accessing or utilizing the Platform Services. All rights not expressly granted to you in this Agreement are strictly and unconditionally reserved by the Platform Provider.
B. Limited, Revocable License: Subject to your strict and continuous compliance with this Agreement, the Platform Provider grants you a limited, non-exclusive, non-transferable, non-sublicensable, and fully revocable license to access and use the Platform Services. This license is granted strictly and exclusively for your personal, non-commercial use to facilitate the booking and payment of Independent Providers. Any commercial exploitation, resale, or sublicensing of the Platform Services by you is strictly prohibited and renders this limited license void ab initio.
C. Prohibited Digital Conduct and Anti-Scraping: You expressly warrant and agree that you shall not, directly or indirectly, engage in any of the following prohibited actions:
(i) Reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code, underlying algorithms, or trade secrets of the Platform Services;
(ii) Utilize any robot, spider, scraper, crawler, or other automated means or interface not provided by us to access, index, extract data from, or interact with the Platform Services;
(iii) Reproduce, mirror, frame, publicly display, or create derivative works from any portion of the Platform IP without the prior, express written consent of the Platform Provider;
(iv) Bypass, circumvent, or attempt to defeat any digital rights management, security protocols, or access controls implemented by the Platform Provider; or
(v) Introduce viruses, logic bombs, trojans, or any malicious code designed to disrupt, damage, or gain unauthorized access to the Platform Services or the data housed therein.
D. Enforcement and Equitable Relief: Any breach of this Section 4 constitutes a material violation of this Agreement, resulting in the immediate, permanent revocation of your access to the Platform Services without notice. You explicitly acknowledge that a breach of this Section will cause the Platform Provider irreparable financial and reputational harm for which monetary damages would be inadequate. Accordingly, the Platform Provider retains the absolute right to seek immediate injunctive and equitable relief in a court of competent jurisdiction within California, without the necessity of posting a bond, in addition to pursuing any and all other remedies available at law.
5. USER CONTENT, DMCA, AND COMMUNICATIONS (TCPA)
A. User Content License and Right of Publicity Waiver: By posting, uploading, or submitting any reviews, comments, images, profile data, or other materials (“User Content”) to the Platform Services, you grant the Platform Provider a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the absolute right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, and otherwise exploit such User Content in any format or channel now known or hereafter devised, without further notice or compensation to you. Furthermore, you explicitly grant the Platform Provider the right to use your name, image, likeness, and username in connection with such User Content, and you hereby unconditionally waive any claims arising under the Right of Publicity (e.g., California Civil Code § 3344) or any similar privacy statutes.
B. Communications Decency Act (CDA) Section 230 Safe Harbor: You expressly acknowledge that the Platform Provider acts solely as an interactive computer service provider and a passive conduit for User Content under Section 230 of the Communications Decency Act (47 U.S.C. § 230). The Platform Provider does not endorse, verify, or adopt any User Content. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PLATFORM PROVIDER EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY DEFAMATORY, INACCURATE, OR UNLAWFUL USER CONTENT POSTED BY YOU OR ANY THIRD PARTY. The Platform Provider reserves the absolute right, but undertakes no affirmative obligation, to monitor, remove, or alter any User Content at its sole discretion.
C. DMCA Notice and Takedown Procedure: The Platform Provider complies with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes infringement and is accessible via the Platform Services, you must notify the Platform Provider’s designated copyright agent. For your complaint to be valid, it must strictly comply with 17 U.S.C. § 512(c)(3) and include: (a) an electronic or physical signature of the authorized agent; (b) identification of the infringed work; (c) identification and location of the infringing material; (d) contact information; (e) a good faith belief statement; and (f) a statement under penalty of perjury regarding accuracy and authority. Notices must be sent to: Legal Department, Mellow Massage, LLC, 1050 University Ave, San Diego, CA 92103, Email: info@mellow-massage.com.
D. Telephone Consumer Protection Act (TCPA) Consent & SMS Messaging:
(i) 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 the Platform Provider, or routed by the Platform Provider on behalf of your selected Independent Provider or the Studio Entity. These transactional messages (e.g., appointment confirmations, building access codes, billing notifications) are integral to the Platform Services.
(ii) Promotional Messages: You may also affirmatively opt-in to receive promotional or marketing text messages. You acknowledge that your consent to receive promotional messages is strictly voluntary and is not required as a condition of purchasing any goods or services, nor is it required to utilize the Platform Services.
(iii) Infrastructure and Opt-Out: You expressly agree that both transactional and promotional messages may be sent using an automatic telephone dialing system (ATDS). Standard message and data rates may apply. You may opt out of receiving SMS messages at any time by replying “STOP” to any text message you receive from us. The Platform Provider explicitly disclaims any liability for delayed, undelivered, or intercepted messages.
6. HEALTH DATA ROUTING AND DIGITAL INTAKE DISCLAIMERS
A. Digital Conduit Status and Disclaimer of Clinical Review: To facilitate your booking, the Platform Services may provide digital intake forms allowing you to disclose relevant health concerns, diagnoses, allergies, pre-existing conditions, or physical limitations. You expressly acknowledge and agree that the Platform Provider acts strictly as a passive digital conduit. All health and medical data entered into the Platform Services is routed directly and exclusively to your chosen Independent Provider. The Platform Provider does not review, evaluate, monitor, or “consider” your health information.
B. No Medical Advice or Assessment: The Platform Provider is a technology company, not a healthcare provider, and is not a covered entity under the Health Insurance Portability and Accountability Act (HIPAA). The Platform Provider makes absolutely no clinical decisions, therapeutic assessments, or medical recommendations. It is your sole responsibility, and the exclusive professional responsibility of your Independent Provider, to review your health disclosures and determine whether the Provider Services are medically or physically appropriate.
C. Assumption of Data Disclosure Risk: You expressly acknowledge that the Platform Provider bears zero liability for any bodily injury, adverse physical reaction, or medical emergency arising from your failure to accurately disclose pertinent health information via the Platform Services, or from your Independent Provider’s failure to appropriately review or act upon such digital disclosures. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNCONDITIONALLY WAIVE AND RELEASE THE PLATFORM PROVIDER AND THE STUDIO ENTITY FROM ANY CLAIMS ALLEGING NEGLIGENT DATA TRANSMISSION, NEGLIGENT REVIEW, OR FAILURE TO WARN REGARDING YOUR DIGITAL HEALTH DISCLOSURES.
7. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY (DIGITAL)
A. Disclaimer of Warranties: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE CALIFORNIA LAW, THE PLATFORM SERVICES (INCLUDING ALL WEBSITES, SOFTWARE, ALGORITHMS, AND DIGITAL CONTENT) ARE PROVIDED ON A STRICTLY “AS IS” AND “AS AVAILABLE” BASIS. THE PLATFORM PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, AND NON-INFRINGEMENT. THE PLATFORM PROVIDER DOES NOT WARRANT THAT THE DIGITAL PLATFORM WILL BE UNINTERRUPTED, SECURE, FREE FROM MALICIOUS CODE, OR ERROR-FREE, NOR DOES IT WARRANT THAT ANY SCHEDULING OR BILLING ERRORS WILL BE CORRECTED.
B. Limitation of Indirect Damages: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PLATFORM PROVIDER, THE STUDIO ENTITY, OR THEIR RESPECTIVE OWNERS, MANAGERS, OFFICERS, EMPLOYEES, OR AFFILIATES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES. THIS EXPLICITLY INCLUDES, BUT IS NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR LOSS OF DATA, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PLATFORM SERVICES, REGARDLESS OF THE UNDERLYING THEORY OF LIABILITY (WHETHER SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF THE PLATFORM PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. Aggregate Financial Liability Cap (Digital Operations): TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF THE PLATFORM PROVIDER AND THE STUDIO ENTITY TO YOU FOR ALL DIRECT DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING STRICTLY TO THE DIGITAL PLATFORM SERVICES, SOFTWARE FAILURES, OR DATA COMPROMISE EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT IN SOFTWARE FACILITATION FEES ACTUALLY RETAINED BY THE PLATFORM PROVIDER FROM YOUR TRANSACTIONS (EXCLUDING ALL FUNDS TRANSMITTED TO INDEPENDENT PROVIDERS OR THE STUDIO ENTITY) DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) ONE HUNDRED U.S. DOLLARS ($100.00).
D. Bifurcation of Physical Liability Limits: You expressly acknowledge that the limitations and liability caps set forth in this Section 7 apply strictly to the digital operation of the Platform Services and software architecture. Any liability caps, limitations, or waivers regarding physical injury, premises liability, or clinical malpractice arising from your presence at the Studio Entity or your receipt of Provider Services from an Independent Provider are governed exclusively by the separate, mandatory In-Person Physical Waiver. Notwithstanding the foregoing, to the absolute maximum extent permitted by law, you unconditionally release the Platform Provider from any and all direct, indirect, or vicarious liability for personal injury, bodily harm, or death arising out of or related to your receipt of Provider Services, regardless of whether a separate physical waiver is successfully executed.
E. California Civil Code § 1542 Waiver (Commercial/Digital Claims): With respect strictly to the commercial, digital, and software-related releases granted in this Agreement, you explicitly 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 with respect to the commercial/digital releases granted in this Agreement.
8. INDEMNIFICATION
A. User Indemnification Obligation: To the absolute maximum extent permitted by applicable California law, you agree to explicitly defend, indemnify, and hold harmless the Platform Provider, the Studio Entity, and their respective owners, managers, officers, directors, employees, agents, software licensors, and affiliates (collectively, the “Indemnified Parties”) from and against any and all claims, demands, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable and actual attorneys’ fees) brought by any third party (including any Independent Provider) arising out of, relating to, or resulting from:
(i) Your material breach or violation of any representation, warranty, or covenant set forth in this Agreement;
(ii) Your violation of any applicable federal, state, or local law, or your infringement of the rights of any third party, including intellectual property or privacy rights;
(iii) Any User Content you submit, post, or transmit through the Platform Services;
(iv) Your initiation of fraudulent credit card chargebacks, billing disputes, or bad-faith claims against an Independent Provider that improperly name the Platform Provider or Studio Entity as a party; or
(v) Your negligent, reckless, or intentional misconduct, including any fraud or misrepresentation regarding your age or legal capacity to contract.
B. Defense and Settlement Process: The Indemnified Parties reserve the right, at your reasonable expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under Subsection 8A, provided that the Indemnified Parties utilize counsel of their choosing at commercially reasonable rates. You agree to fully and promptly cooperate with our defense of such claims. The Platform Provider will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming actually aware of it. You explicitly agree not to settle, compromise, or admit liability regarding any matter subject to this indemnification without the prior, express written consent of the specific Indemnified Party involved.
9. DISPUTE RESOLUTION, MASS ARBITRATION SHIELD, AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION.
A. Governing Statute and Scope: The parties expressly acknowledge and agree that the Platform Services evidence a transaction involving interstate commerce. Notwithstanding the California choice of law provision in Subsection 1D, the interpretation, applicability, enforceability, and formation of this Section 9 shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”). This arbitration agreement applies strictly to digital, commercial, or platform-related disputes between you and the Platform Provider or the Studio Entity. It does not govern clinical malpractice or physical injury disputes between you and an Independent Provider.
B. Notice of Dispute and Informal Resolution: As a mandatory condition precedent to initiating arbitration, you must first send a written Notice of Dispute (the “Notice”) describing the exact nature of the claim and the specific relief sought. A Notice to the Platform Provider or Studio Entity must be sent via certified mail to: Legal Department, Mellow Massage, LLC, 1050 University Ave, San Diego, CA 92103, with a digital 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 the dispute remains unresolved after thirty (30) days, either party may commence arbitration.
C. Binding Arbitration and Delegation: 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 individual arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules then in effect, except as modified by this Section 9. The arbitration shall be conducted before a single, neutral arbitrator in San Diego County, California. 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 9.
D. Class Action Waiver: YOU AND THE PLATFORM PROVIDER 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, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
D. Mass Arbitration and Bellwether Batching Protocol: To ensure the efficient and fair resolution of coordinated claims, if twenty-five (25) or more similar demands for arbitration are filed against the Platform Provider or the Studio Entity 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 sequential batches of fifty (50) demands per batch.
(i) The Bellwether Batch: The AAA shall assign distinct arbitrators to resolve the first batch of fifty (50) demands concurrently (the “Bellwether Batch”). No further arbitration demands in the Mass Filing may be filed, processed, or adjudicated, and no filing or administrative fees shall be assessed by the AAA against the Platform Provider or Studio Entity for subsequent batches, until the Bellwether Batch has been fully resolved.
(ii) Statute of Limitations Tolling: To prevent prejudice, the statute of limitations and any filing fee deadlines shall be explicitly tolled for all demands maintained in the stayed queue from the date the initial demand was filed until the demand is selected for a batch or withdrawn.
(iii) 60-Day Global Mediation: Upon the resolution of the Bellwether Batch, the results of those cases shall be used to inform a mandatory, sixty (60) day global mediation administered by the AAA for all remaining claims in the Mass Filing. If the Bellwether Batch and subsequent global mediation do not resolve the broader Mass Filing within one hundred and eighty (180) days of the initial batch assignment, either party may opt out of arbitration for the remaining unresolved demands and proceed in a court of competent jurisdiction. You explicitly agree to cooperate in good faith to implement this batching approach to minimize arbitrary administrative fee burdens.
F. Exceptions to Arbitration and McGill Carve-Out: Notwithstanding the foregoing, either party retains the absolute right to: (i) bring an individual action in small claims court, provided the matter falls within the court’s jurisdictional limits; and (ii) seek immediate injunctive or equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s intellectual property rights (as detailed in Subsection 4D). Furthermore, if a court of competent jurisdiction dictates that applicable California law precludes the waiver of your right to seek “public injunctive relief” (e.g., under McGill v. Citibank), then any claim for public injunctive relief shall be severed from the arbitration proceeding and brought in a court of competent jurisdiction, but all other claims shall remain subject to arbitration, and the public injunctive relief claim shall be stayed pending the final resolution of the arbitrated claims.
10. TERM, TERMINATION, AND SURVIVAL
A. Term: This Agreement shall commence upon your initial access to the Platform Services, your electronic assent to these terms, or your creation of an Account, and shall remain in full force and effect perpetually while you use the Platform Services or maintain an active Account.
B. Termination by You: You may terminate this Agreement at any time by permanently deleting your Account through the digital settings portal and ceasing all use of the Platform Services. You explicitly acknowledge that terminating your Account and ceasing use of the Platform Services does not automatically cancel any pending appointments or financial obligations owed to an Independent Provider. You must separately cancel appointments in accordance with the 24-hour automated cancellation enforcement policy outlined in Subsection 3C to avoid automated charge facilitation.
C. Termination and Suspension by Platform Provider (With Cause): The Platform Provider reserves the absolute right to immediately suspend, restrict, or permanently terminate your Account and your access to the Platform Services, without prior notice or liability, if the Platform Provider, in its sole discretion, determines that:
(i) You have materially breached this Agreement;
(ii) You have engaged in abusive, threatening, fraudulent, or unsafe behavior toward any Independent Provider, Studio Entity personnel, or other users;
(iii) Your actions pose a legal, financial, or reputational risk to the Platform Provider, the Studio Entity, or the integrity of the software infrastructure; or
(iv) You have initiated fraudulent credit card chargebacks.
D. Effect of Termination: Upon termination, your right to access the Platform Services automatically and immediately ceases. The Platform Provider shall bear zero liability to you for any costs, losses, damages, or inconveniences arising out of the suspension or termination of your access. Termination will not affect your rights or obligations regarding transactions executed with Independent Providers prior to the effective date of termination.
E. Survival: To ensure the continuous protection of the three-tiered firewall, all provisions of this Agreement which by their nature should survive termination shall survive in perpetuity. This explicitly includes, but is not limited to: Section 1 (Scope of Agreement and Definition of Parties), Section 3 (Payment Processing and Limited Collection Agency), Section 4 (Intellectual Property and Software License), Section 6 (Health Data Routing and Digital Intake Disclaimers), Section 7 (Disclaimer of Warranties and Limitation of Liability (Digital)), Section 8 (Indemnification), Section 9 (Dispute Resolution, Mass Arbitration Shield, and Class Action Waiver), and Section 11 (Miscellaneous and Electronic Signature).
12. MISCELLANEOUS AND ELECTRONIC SIGNATURE
A. Amendments and Modification: The Platform Provider reserves the unilateral right to modify, amend, or update the terms, conditions, and policies governing the Platform Services at any time. For any material changes to this Agreement, the Platform Provider will provide commercially reasonable affirmative notice (e.g., via email, a conspicuous notification on the website, or an in-app alert) at least thirty (30) days prior to the effective date of the changes. 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 9 (Dispute Resolution, Mass Arbitration Shield, and Class Action Waiver) shall not apply retroactively to any specific dispute of which the Platform Provider had actual written notice prior to the effective date of the amendment.
B. Entire Agreement and Integration: This Agreement, including any explicitly incorporated digital policies (such as the Privacy Policy), constitutes the entire commercial and digital understanding between you, the Platform Provider, and the Studio Entity, superseding all prior or contemporaneous communications, agreements, or understandings, whether oral or written, regarding the software and digital marketplace. Exception for Physical Operations: Notwithstanding the integration clause herein, this Agreement explicitly does not supersede the mandatory In-Person Physical Waiver governing your physical presence at the Studio Entity and your receipt of physical Provider Services. This Agreement shall operate concurrently with, and completely severable from, such physical waivers.
C. Severability and Blue-Pencil Directives: If any provision of this Agreement 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 to amend or “blue-pencil” the invalid provision to achieve the original intent of the parties—specifically regarding the maximum permissible limitation of liability and eradication of vicarious liability. 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 liability cap shall not invalidate the arbitration provisions of Section 9.
D. No Waiver: No waiver by the Platform Provider or the Studio Entity of any breach, default, or provision 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 manually signed by an authorized corporate officer of the waiving entity.
E. Assignment: You may not assign, delegate, or transfer this Agreement, your Account, or any of your rights and obligations hereunder, without the prior, express written consent of the Platform Provider. The Platform Provider 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 digital assets. This Agreement shall inure to the benefit of and be strictly binding upon the parties hereto and their respective spouses, heirs, dependents, estates, legal representatives, successors, and permitted assigns. Specifically, you expressly agree that the liability waivers, limitations of liability, and mandatory arbitration provisions contained in this Agreement shall fully bind your spouse, heirs, and dependents in the event of your death, disability, or in any claim alleging loss of consortium.
F. Third-Party Beneficiaries: Except as expressly provided herein, this Agreement does not confer any legal or equitable rights upon any person or entity other than you, the Platform Provider, and the Studio Entity. Notwithstanding the foregoing, you expressly acknowledge and agree that the Independent Providers are intended third-party beneficiaries of the payment collection terms (Section 3) and the health data disclaimers (Section 6), and that the software licensors are intended third-party beneficiaries of the IP protections (Section 4) and Indemnification (Section 8), with the right to directly enforce such defensive provisions against you.
G. Electronic Signatures (ESIGN / UETA) and Affirmative Assent: By checking the box indicating your acceptance, clicking the “I Accept,” “Register,” or “Complete Booking” button, or by affirmatively utilizing the Platform Services, you explicitly consent to execute this Agreement electronically under the federal Electronic Signatures in Global and National Commerce Act (ESIGN) and the California Uniform Electronic Transactions Act (UETA). 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 commercial contract. You waive any defense regarding the validity, enforceability, or admissibility of this Agreement predicated on the fact that it was transmitted, presented, or authorized electronically.
