This Agreement sets forth the standards of use for the www.powerstretchwellness.com website (the “Website”) the PowerStretch Wellness® Mobile Application (the “Mobile Application”), and the PowerStretch Wellness® In-Store Forms Application (the “In-Store Application”) (the Mobile Application and In-Store Application are collectively the “Applications”) and/or other Applications. This Agreement is intended to apply broadly and it governs any and all access and use of the Website and/or the Applications, the information or content contained on the Website and/or the Applications, and all aspects of the Service (defined below).
By using the Website and/or Applications, you (“you” or “your”) agree to this Agreement. If you do not agree to this Agreement, you may not use the Website or either of the Applications.
THIS AGREEMENT SETS FORTH LEGALLY BINDING TERMS AND GOVERNS YOUR ACCESS TO AND ALL USE OF THE WEBSITE AND/OR THE APPLICATION(S) AND THE INFORMATION OR CONTENT CONTAINED ON ANY ONE OR ALL OF THEM, AND ANY OF THE SERVICES (DEFINED BELOW). BY ACCESSING OR USING THE WEBSITE, THE APPLICATION(S) AND/OR THE INFORMATION OR CONTENT CONTAINED ON ANY ONE OF THEM, AND/OR ANY SERVICE (DEFINED BELOW), YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE AT LEAST 18 YEARS OLD, AND (3) YOU HAVE THE RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE WEBSITE, EITHER OF THE APPLICATIONS AND/OR THE INFORMATION OR CONTENT CONTAINED ON ANY ONE OF THEM, AND/OR ANY SERVICE (DEFINED BELOW) IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE WEBSITE, EITHER OF THE APPLICATIONS AND/OR THE INFORMATION OR CONTENT CONTAINED ON ANY ONE OF THEM, and/OR ANY SERVICE (DEFINED BELOW).
Certain features of the Website and/or Applications may be subject to additional terms that will be provided on the Website and/or either or both of the Applications in connection with such features. Any and all such additional terms are incorporated by reference into this Agreement. In the event of a conflict between the additional terms and any provision in this Agreement, the additional terms will prevail, but only with respect to the Website, the Application(s) and/or any Service (defined below) to which the additional terms apply. Use of the Website and/or the Application(s) is also governed by the Terms and Conditions of any Wellness Agreement you may have entered with your massage therapist and operated PowerStretch Wellness location. Your continued use of the Website, Application(s) and/or the content or information contained on any one of them, and/or any Service (defined below) is an acknowledgement and acceptance that neither PowerStretch, Inc. or PowerStretch Wellness nor any of its past, present, or future affiliates and their respective officers, directors, incorporators, members, partners, owners, agents, management, controlling parties, entity under common control, vendors, service providers, attorneys, employees, or representatives (all of all of whom are third-party beneficiaries of the Agreement and are collectively referred to as the PowerStretch, Inc. Entity”) is a party to any Wellness Agreement you may enter with PowerStretch Wellness. Your continued use of the Website, the Application(s) and/or any Service (defined below) is an acknowledgement and acceptance by you that the PowerStretch Wellness Entity are not responsible for any acts or omissions related in any way to your use of the Website, the Application(s), or any Service (defined below).
PowerStretch, Inc. reserves the right, at any time, to modify, alter, or update this Agreement without prior notice. Modifications shall become effective immediately upon being posted in the Website and/or any Application. Your continued use of the Website, any Application and/or any Service (defined below) after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. Except as provided in this paragraph, this Agreement may not be amended.
DESCRIPTION OF SERVICE
Through the Website and/or the Application(s), PowerStretch, Inc. is providing you with information about products and services offered at PowerStretch Wellness location, including massage and therapeutic stretching sessions; (b) provide information to and complete forms with your massage therapist regarding massage and therapeutic stretching sessions; (c) enter into and use benefits under any Wellness Agreement entered with PowerStretch Wellness location; (d) purchase and/or redeem gift cards; (e) purchase of massage and therapeutic stretching sessions and product at PowerStretch Wellness location as a guest; (f) view information about a PowerStretch Wellness location nearest you; complete customer satisfaction surveys.
You must (1) provide all equipment necessary for accessing the Website and/or other Application, (2) provide for your access to the Internet to use the Website and/or other Application, and (3) pay any fees related with such Internet or equipment.
DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITE, and/or other APPLICATION(S), THE INFORMATION OR CONTENT CONTAINED ON ANY OF THEM AND/OR ANY SERVICE IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITE, APPLICATIONS, AND ANY CONTENT OR INFORMATION PROVIDED BY ON ANY OF THEM AND/OR any SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND THE POWERSTRETCH WELLNESS ENTITY HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE WEBSITE AND THE APPLICATIONS, THE INFORMATION CONTAINED ON ANY OF THEM AND/OR ANY SERVICE EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT. THE POWERSTRETCH WELLNESS ENTITY DO NOT WARRANT THAT THE WEBSITE, THE APPLICATIONS, ANY CONTENT PROVIDED BY ANY OF THEM AND/OR ANY SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE WEBSITE AND/OR THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE WEBSITE, THE APPLICATIONS AND/OR THE INFORMATION CONTAINED ON ANY OF THEM WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY POWERSTRETCH, INC. OR ITS AUTHORIZED REPRESENTATIVES or any employee at a PowerStretch Wellness LOCATION WILL CREATE A WARRANTY.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM POWERSTRETCH, INC, OR THROUGH THE WEBSITE AND/OR THE APPLICATIONS, THE INFORMATION CONTAINED ON ANY OF THEM AND/OR the SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
THE FOREGOING EXCLUSIONS SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF this AGREEMENT OR YOUR USE OF THE WEBSITE, THE application(S) and/or the information and content provided by ANY OF THEM AND/OR ANY SERVICE. Some jurisdictions do not allow the exclusion of implied warranties, and therefore IN SUCH INSTANCES, the above-referenced exclusion is inapplicable.
LIMITATION OF LIABILITY
YOU UNDERSTAND THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE POWERSTRETCH WELLNESS ENTITY SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR THE ME ENTITY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE WEBSITE, THE APPLICATIONS OR THE INFORMATION CONTAINED ON ANY OF THEM, OR ANY SERVICE, WHETHER SUCH DAMAGES ARISE IN CONTRACT, WARRANTY, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF THE ME ENTITY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS ARE INAPPLICABLE.
You agree to indemnify and hold the PowerStretch Wellness Entity harmless from any claims, demands, liabilities, damages, losses, and expenses, including, without limitation reasonable attorneys’ fees and costs, made by any third party due to or arising out of or connected in any way with your use of the Website, the Application(s) and/or any information or content provided on any of them, any Service, any service or product provided by or purchased from a PowerStretch Wellness location, the violation of this Agreement, using your equipment to access the Website and/or the Application(s), infringement of any intellectual property or any other right of any person or entity. The indemnification obligations under this Section shall survive the termination or expiration of this Agreement or your use of the Website, the Application(s) and/or any Service.
BINDING INDIVIDUAL ARBITRATION
PLEASE READ THIS SECTION CAREFULLY—IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Purpose. This Binding Individual Arbitration Section governs all Disputes between you and any PowerStretch Wellness Entity. The term “Disputes” is to be given the broadest possible meaning that will be enforced and means any dispute, claim, or controversy of any kind between you and any of the PowerStretch Wellness Entity that arise out of or in any way relate to (1) your access to the Website and/or the Application(s); (2) your use of the Website and/or the Application(s); (3) the provision of content, services, and/or products on or through the Website, the Application(s) and/or the Service; (4) any product or service provided by and operated by a PowerStretch location; and/or (5) this Agreement, including the validity, enforceability or scope of this Binding Individual Arbitration Section (with the exception of the Class Action Waiver clause below), whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory. The term “Disputes” includes claims that arose or accrued before you assented to this Agreement. If you have a Dispute with any PowerStretch Wellness Entity that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, you and the PowerStretch Wellness Entity with which you have a Dispute agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY—IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS. Any disputes, claims or controversies, whether in arbitration or court, will be conducted only on an individual basis and not on behalf of, or as part of, any purported class, consolidated, representative or private attorney general proceeding. You further agree that you shall not participate in any class, consolidated, representative or private attorney general proceeding (existing or future) brought by any third party involving a Dispute. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated. The terms of this provision will be binding on you, your heirs, successors, and assigns.
GOVERNING LAW AND JURISDICTION
THE PARTIES AGREE THAT THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO ITS CONFLICT OF LAW RULES, GOVERN THIS AGREEMENT AND ANY DISPUTES BETWEEN YOU AND any POWERSTRETCH INC. ANY DISPUTE NOT SUBJECT TO ARBITRATION WILL BE LITIGATED exclusively BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION IN EITHER THE SUPERIOR COURT OF THE STATE OF FLORIDA IN AND FOR THE COUNTY OF ORANGE OR IN the UNITED STATES DISTRICT COURT FOR THE DISTRICT OF FLORIDA.
MODIFICATIONS AND INTERRUPTION TO SERVICE
PowerStretch Wellness reserves the right to modify or discontinue the Website, the Application(s) and/or any Service at any time, with or without notice to you. The PowerStretch Wellness Entity shall not be liable to you or any third party should PowerStretch Inc exercise its right to modify or discontinue the Website, the Application(s) and/or any Service. You acknowledge and accept that PowerStretch Inc. does not guarantee continuous, uninterrupted or secure access to the Website and/or the Application(s) and operation of the Website and the Application(s) may be interfered with or adversely affected by numerous factors or circumstances outside of PowerStretch Inc’s control.
THIRD-PARTY SITES, MOBILE APPLICATIONS, AND INFORMATION
GOOGLE MAPS/GOOGLE EARTH/APPLE MAPS
MOBILE TEXT MESSAGING
By using the Website, the Application(s) and/or any Service, you agree that PowerStretch Inc. and its respective agents may communicate with you by SMS, MMS, text message, email, or other electronic means to your mobile device concerning your usage of the Website, the Application(s) and/or any Service, and/or any information or content available on the Website and/or the Application(s) and/or any Service (collectively, the “Text Services”). You further agree that PowerStretch Inc. may share information that you provide to PowerStretch Inc. through text messages, email, or other electronic means with its respective agents and that its respective agents may use such information and communicate with you concerning the Text Services and otherwise.
SECURITY AND PASSWORD; CREDIT CARD INFORMATION
You are solely responsible for maintaining the confidentiality of your password and account. Please do not share your password or account information.
Gift Card Purchases on the Website: To purchase gift cards on the Website, you will be required to enter your credit card information.
You represent and warrant that your credit card information is true and that you are authorized to use the credit card.
DISCLAIMER REGARDING ACCURACY OF LOCATION INFORMATION
Hours of operation, services provided, and other information have been provided by PowerStrech Wellness website or other public sources. While PowerStretch Inc. makes every effort to ensure that the information on the Website and the Application(s) is accurate, we make no representations or warranties as to the accuracy or reliability of any information on the Website and/or the Application(s).
COMPLIANCE WITH LAWS
You assume all knowledge of applicable law and are responsible for compliance with any such laws. You may not use the Website, the Application(s) or any Service in any way that violates applicable state, federal, or international laws, regulations or other government requirements. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation.
COPYRIGHT AND TRADEMARK INFORMATION
All content included or available on the Website and/or the Application(s), including site and application design, text, graphics, interfaces, and the selection and arrangements thereof is ©2020 PowerStretch Wellness with all rights reserved, or is the property of PowerStretch Inc. and/or third parties protected by intellectual property rights. Any use of materials on the Website and/or the Application(s), including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of PowerStretch Inc. is strictly prohibited. You agree not to use any robot, spider, or other automatic device, or manual process to monitor or copy the Website, the Application(s) and/or any content or information contained on any of them without prior written permission of an authorized officer of PowerStretch Inc..