Terms and Conditions - Australia
Effective: July 17, 2019
|Important — this agreement (“Agreement”) is a legal agreement between you (either an individual or entity) (“you” or “your”) and Soothe, Inc. (hereinafter “Soothe,” “we”, “us” or “our”) that sets forth the legal terms and conditions for your access to and use of a technology platform provided by Soothe (including www.soothe.com and any other website owned and operated by Soothe (the “Website(s)” or “Site(s)”) and any Soothe software, including any Soothe mobile applications (the “App(s)”) to enable you to: (a) if you are an individual, arrange and schedule massage therapy services with an independent third party provider of such services (each, a “Third Party Therapist”); or (b) if you are a Third Party Therapist, accept engagements for and provide massage therapy services to individual consumers ( “Individual Customer”) or corporate customers (“Corporate Customer”) (together, “Customers”) (“Referral Services”), or other services offered by Soothe, its subsidiaries and/or affiliates, from time to time a (collectively, the Website(s), App(s) and Referral Services are referred to as “Service(s)”).|
|If you are an Australian resident, you may subscribe to a membership, for a monthly or yearly term to receive discounts on pricing for monthly massages (“Soothe Plus”). Your Soothe Plus subscription will be automatically renewed for additional periods of one month or one year, depending on the subscription term option you choose. The Soothe Plus subscription fees will be charged at the then-current rates, as set out on the website / app, unless you opt out of the auto-renewal or terminate your subscription in accordance with these terms.|
|For the avoidance of doubt, the Services do not include massage therapy services, which are provided by Third Party Therapists engaged by Customers using the Services. You acknowledge that Soothe does not provide massage therapy services. If you are a Customer, you further acknowledge that all massage therapy services are provided by independent third party contractors who are not employed by Soothe or any of its affiliates.|
|Why should you read these Terms? These terms create a legally binding agreement between you and us. By accessing or using the Site, you are accepting this Agreement and agreeing to use the Services in accordance with the terms and conditions in this Agreement. Some of our Services may have additional rules, policies, and procedures. Where such additional terms apply, we will make them available for you. A copy of these Terms and Conditions may be downloaded, saved and printed for your reference.|
|You confirm that you can enter the Agreement. As a condition of your use of the Services, you confirm and warrant to us that you meet the eligibility requirements set out in Section 4.3 and have the right, authority, and capacity to enter into these terms or, if you are under the age of 18, you have obtained the consent of your parent or legal guardian to this Agreement.|
|Which provisions of the terms should you pay particular attention to? The key terms that you should consider in particular detail are: 3. Changes to the Site and these Terms; 9. Our responsibility for loss or damage; and 11. Termination.|
|What to do if you don’t want to accept these terms? If you do not agree with all of the provisions of these terms, do not access and/or use the Services.|
|Information about Soothe and contact details|
|Who we are. Soothe Australia Pty Ltd. Is based in Sydney, NSW.|
|Where we are based. Our registered office is at Penguin Management Services, Floor 1, Nexus, Unit 104, 4 Columbia Court, Baulkham Hills, NSW. 2153.|
|How to contact us. You can contact us by writing to us at Soothe Australia Pty, Ltd. c/o Penguin Management Services, Floor 1, Nexus, Unit 104, 4 Columbia Court, Baulkham Hills, NSW. 2153|
|How we may contact you. If we have to contact you we may do so by telephone or by email to the number and/or address you provided when you registered for an Account.|
|Email counts as “in writing”. When we use the words “writing” or “written” in these Terms, this includes emails. For contractual purposes, you consent to receiving communications from Soothe by email.|
|Changes to the Site and these Terms|
|Small changes. We reserve the right to change the terms and conditions of this Agreement or to modify or discontinue the Services offered by Soothe at any time, by notice to you. Those changes will go into effect on the effective date shown in the revised agreement. If we change this Agreement, we will give you notice by posting the revised agreement on the applicable website(s) or app(s) and sending an email notice to you using the contact information provided by you. Therefore, you agree to keep your contact information up-to-date and that notice sent to the last email address you provided shall be considered effective. We also encourage you to check this Agreement from time to time to see if it has been updated.|
|More significant changes. In addition, we may make more significant changes to the Site and/or these Terms, but if we do so and these changes materially or adversely impact your rights or use of the Site, we will notify you by email of such changes using the contact information provided by you. We may require you to provide consent to the updated agreement before further use of the Services is permitted. By continuing to use any Services after the new effective date, you agree to be bound by such changes. If the modified terms are not acceptable to you, please cease using the Services.|
|Service Description and Participation/Account Creation/Eligibility/Referrals and Promotions|
|Account Creation. In order to access certain features of the Website and Apps and to use certain Services, you may be required to register to create an account (“Account”). In connection with setting up your Account with Soothe, we may supply you with a user identification and/or password. In connection with any future use, you may be asked to input your user identification and/or password from time to time. You agree to be responsible for all activity that occurs under your Account and agree to be responsible for maintaining the security of your password and user identification. You agree to immediately notify Soothe of any unauthorized use of your user identification or password or any other breach of security. You can delete your Account at any time, for any reason, by calling Soothe at 1800838276.|
|Eligibility. Persons under 13 are prohibited from providing personal information on our Websites or via our Apps. If you are under the age of 18, you may use the Services only with the involvement of your parent or guardian. Make sure that you review these terms with your parent or guardian so that you both understand all your rights and responsibilities. If you are under the age of 18, you represent and warrant that you have obtained the consent of your parent or legal guardian to this Agreement.|
|Referral Credits. We offer credits for referring new users. To qualify for a referral credit, you must refer a new user who establishes a Soothe Account, reserves and completes a massage therapy service which is booked through the Services within ninety (90) days of signing up for an account [and nominates you as the referring user]. Please note that referral credits are given for the purpose of attracting brand new users to Soothe. You may earn only one referral bonus per new user referred, and the value of your referral bonuses may not exceed one thousand five hundred dollars (USD $1,500).|
|Promotional Codes. We may, in our sole discretion, create promotional codes that may be redeemed for credit in your Account, or other features or benefits related to the Services, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Each benefit may only be redeemed once per account. Promo Codes for duplicate benefits will be voided. Only Promo Codes sent to you through official Soothe communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us by notice to you (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use.|
|Reservation of Rights. We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event we determine or form a suspicion that the use or redemption of the Promo Code or the provision of any referral credit was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or the terms of this Agreement. Once you have redeemed a Promo Code or used any credit in your Account to purchase massage therapy services using the Services, no further promotional value adjustments or credits will be issued for any reason, including but not limited to, dissatisfaction with the Services or the massage therapy services provided by a Third Party Therapist.|
|Promotional Discounts. From time to time, Soothe may offer promotional discounts in the form of massage credits when you purchase a massage series. Such promotional discounts may only be available for purchase and use in certain jurisdictions, in which case the eligible jurisdiction will be stated at the time of purchase. You must purchase the promotional discount before the expiration of the promotional discount period, but your credits may be used at any time. A limited quantity of promotional discounts may be available during any promotional period. Promotional discounts are nontransferable, nonrefundable, not for resale, and not redeemable for cash or gift cards. Promotional discounts are good only for massage credits. Additional terms and conditions may apply and will be made available to you during any promotional discount period.|
|Gift Cards – for specific terms relating to Soothe gift cards, please click here https://www.soothe.com/giftcardterms/.|
|Acceptable Use and Complaints|
|You are responsible for your use of the Services, and for any use of the Services made using your Account. Further, you are responsible for your use of any massage therapy services which may be ordered using the Services. Our goal is to create a positive experience in connection with our Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to Soothe.|
|If you are a Third Party Therapist or Customer, you agree not to attempt to contact each other directly about massage therapy services outside of the Services for a period of 6 months after the date of your last visit to the Services, except as may be permitted by these Terms or Soothe, or otherwise circumvent your relationship with Soothe.|
|When you use the Services or enter into any agreement with a Customer or Third Party Therapist for massage therapy services as a result of the Services, you agree that you will not: |
(a) violate this Agreement or any Soothe rules regarding use of the Services;
(b) violate any law or regulation;
(c) breach any agreements you enter into with any third parties (including any Third Party Therapist or Customer);
(d) violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
(e) engage in any behavior that is abusive, harassing, indecent, profane, obscene, hateful or otherwise objectionable, including sexual misconduct;
(f) stalk, harass, assault or harm another individual (including a Customer or a Third Party Therapist);
(g) for the purpose of misleading others, create a false identity of the sender or the origin of a message, forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Services or in connection with Soothe;
(h) impersonate any person or entity or perform any other similar fraudulent activity;
(i) harvest or otherwise collect or store any information (including personally identifiable information) about other users of the Services, including e-mail addresses, without the express consent of such users or alter transmission data;
(j) collect, distribute or gather personal or aggregate information, including Internet, e-mail or other electronic addresses, about Soothe’s customers or other users;
(k) upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or commercial electronic message;
(l) use any means to scrape or crawl any Web pages or Content contained in the Websites or Apps (although Soothe may allow operators of public search engines to use spiders to index materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, and Soothe reserves the right to revoke these exceptions either generally or in specific cases);
(m) attempt to circumvent any technological measure implemented by Soothe or any of Soothe’s providers or any other third party (including another user) to protect the Websites or Apps; to the extent permitted by applicable law, attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Websites or Apps;
(n) steal, damage, harm, tamper with or otherwise interfere with any tangible property belonging to any third party (including a Customer or a Third Party Therapist); or
(o) advocate, encourage, or assist any third party in doing any of the foregoing.
|If Soothe reasonably suspects that you are in breach of this clause, Soothe may suspend your account immediately on notice to you. You acknowledge that your account may remain suspended until such time as Soothe has completed its investigation to its satisfaction, and may be terminated if the breach is established. Soothe will notify you when your account becomes active again.|
|Mobile Application License|
|Subject at all times to this Agreement, if you elect to download the App, the following also applies: Soothe grants you a license to download, install and use a copy of the App on a single mobile device or computer that you own or control solely for your personal and professional use on the basis that the license is: |
(a) revocable – we have the right to remove your ability to use the App in accordance with these Terms;
(b) non-exclusive – we can license other people to access and use the App;
(c) non-transferable – you can’t pass this right to someone else or sublicense the license; and
(d) limited – the license does not extend beyond what has just been described above.
Furthermore, with respect to any App accessed through or downloaded from an App Store such as Google Play or the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of Section 11.
|Purchases, Payments, Cancellation and Rescheduling|
|Product Descriptions. Descriptions, images, references, features, content, specifications, products, prices, and availability of any Products and services are subject to change without notice, and our current prices can be found on the Website. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any Products or services on the Website at a particular time does not imply or warrant that these Products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Website. By placing an order, you represent that the Products and services ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Product; to honor or impose conditions on the honoring of, any coupon, coupon code, promotional code, or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service.|
|Automatic Renewal. If you subscribe to Soothe Plus, your monthly or annual subscription and related charges will continue indefinitely until terminated in accordance with this Agreement. After your first month or first year (as applicable, depending on the term of the subscription option you have chosen) as a Soothe Plus member, and again after any subsequent month or year until you cancel, your subscription will automatically renew on the first day following the end of such period and continue for an additional month or year, as applicable, unless you cancel at least [3 days] prior to the expiry of the then-current term. Your subscription will continue at Soothe’s then-current price, as set out on the website / app. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription.|
|Soothe Plus Massage Minutes. If you purchase a monthly Soothe Plus subscription, depending on the minute option you choose, we will deposit 60, 90 or 120 massage minutes (“Soothe Plus Massage Minutes”) into your Account each month that you maintain your subscription in good standing. If you purchase an annual Soothe Plus subscription, depending on the minute option you choose, we will deposit 720, 1,080 or 1,440 Soothe Plus Massage Minutes into your Account on an annual basis while you maintain your subscription in good standing. Soothe Plus Massage Minutes are not transferable, are redeemable only for massage therapy services scheduled through Soothe, have no cash value, and cannot, be redeemed for cash, gift cards or any cash equivalent. Each Soothe Plus Massage Minute may be redeemed for one minute of massage service booked through Soothe, provided that Soothe Plus Massage Minutes must be applied to the purchase of massage sessions in the standard session lengths offered by Soothe. If you combine Soothe Plus Massage Minutes with currency payments to purchase a massage, the portion of your session not covered by your Soothe Plus Massage Minutes will be charged to the payment device associated with your Account on a prorated basis according to our then-current price, as set out on the website / app, for the applicable service in the location where your massage is delivered, subject to any Soothe Plus membership or other discounts that may apply.|
|Soothe Plus Massage Minutes Pricing. Soothe Plus subscription pricing varies by location based on your post code at the time you subscribe. Once deposited to your Account, Soothe Plus Massage Minutes may be redeemed for massage services in any market serviced by Soothe, provided that we reserve the right to suspend or cancel your Soothe Plus Subscription if you book the majority of your sessions using Soothe Plus Massage Minutes in markets that do not include the post code that you identified as your post code at the time you subscribe. We reserve the right to cancel or modify our Soothe Plus subscription program and related terms and benefits at any time with notice to our Soothe Plus members, including without limitation, the right to convert unused Soothe Plus benefits previously denominated in Massage Dollars to Soothe Plus Massage Minutes.|
|Soothe Plus Cancellations and Payments If you are a Soothe Plus subscription customer, you may cancel your subscription at any time by calling 1800838276 or by logging into your Account via our Site or App and using the “Cancel Membership” or “Cancel Subscription” button accessible from the Soothe Plus tab. If you cancel a Soothe Plus monthly subscription, your subscription will terminate immediately following such cancellation, and will not be renewed. Following termination of your Soothe Plus monthly subscription, you will not be entitled to any related discounts that were in effect during your subscription term, but you may continue to use any Soothe Plus Massage Minutes that you accumulated prior to termination and such minutes will not expire for as long as you maintain an Account in good standing. Following cancellation of a Soothe Plus monthly subscription, you may be restricted for up to six (6) months from purchasing another Soothe Plus monthly subscription.|
|If you cancel a Soothe Plus yearly subscription, your subscription and all related discounts will remain in effect until the end of your then-current one-year subscription term, after which your subscription will terminate and will not be renewed. Upon the termination of your Soothe Plus yearly subscription, you no longer will be entitled to related discounts that were in effect during your subscription term but you may continue to use any Soothe Plus Massage Minutes you accumulated prior to termination and such minutes will not expire while you maintain an Account in good standing.|
|Consequences of Cancellation. Whether you are a Soothe Plus monthly or yearly subscription customer, to the maximum extent permitted by applicable law, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the subscription period during which you cancelled. By subscribing, you authorize Soothe to charge the payment account associated with your Account at the time of ordering your subscription, and again at the beginning of each subsequent monthly or yearly subscription renewal period, until you cancel. Upon renewal of your subscription, if Soothe does not receive payment from your designated payment provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Soothe may either terminate or suspend your subscription and continue to attempt to charge your payment device until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).|
|Taxes. Unless otherwise provided, amounts set out on the App or the Website do not include GST. If a supply under this Agreement is subject to GST and GST has not been accounted for in determining the consideration payable for the supply, the supplying party may recover from the receiving party an amount on account of GST. That amount is: |
(a) equal to the value of the supply calculated in accordance with GST law multiplied by the prevailing GST rate; and
(b) payable at the same time as the recipient is required to pay for the related supply.
|In this section, “GST” has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).|
|Shipments. When you place an order for a Product or service, we will confirm your address by sending an email to the email address you provided when you placed your order. Your placement of an order through our Website is an offer to purchase the products and/or services ordered and we may accept your order by processing your payment and shipping the products or making available your purchased services. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your order or any part of your order. No order will be considered accepted by Soothe until the product(s) has been shipped or service(s) made available. If some of products in your order are temporarily out of stock, we will ship the available products only and notify you of any products that cannot be fulfilled. If we decline to accept your order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. We may require additional verifications or information before accepting any order.|
|Returns. In addition to your rights under the Australian Consumer Law, you may return purchased products that have not been opened or used within thirty (30) days for a refund of the purchase price for such returned product. You will be responsible for all shipping and handling charges in connection with any return.|
|What if I think I was charged incorrectly. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: email@example.com.|
|Payment for massage therapy services. Each Third Party Therapist hereby appoints Soothe as the Third Party Therapist’s limited payment collection agent solely for the purpose of accepting applicable payment from Customers via the Services. Each Third Party Therapist agrees that payment made by a Customer through Soothe shall be considered the same as a payment made directly to the Third Party Therapist, and the Third Party Therapist will provide its services to the Customer in the agreed-upon manner as if the Third Party Therapist has received the payment. Soothe reserves the right to charge the Third Party Therapist a commission on the fees paid by a Customer to the Third Party Therapist for the provision of Therapist’s services (“Soothe Commission”). Each Third Party Therapist understands that Soothe accepts payments from Customers as the Third Party Therapist’s limited payment collection agent and that Soothe’s obligation to pay the Third Party Therapist is subject to and conditional upon successful receipt of the associated payments from Customers. Soothe does not guarantee payments to Third Party Therapists for amounts that have not been successfully received by Soothe from Customers. In accepting appointment as the limited payment collection agent of the Third Party Therapist, Soothe assumes no liability for any acts or omissions of the Customers. Each Customer acknowledges and agrees that Soothe reserves the right, in its sole discretion, to charge Customer for and collect fees from the Customer on behalf of the Third Party Therapist as the Third Party Therapists’ limited payment collection agent. In the event a Customer elects to tip the Third Party Therapist for the provision of massage therapy services, the Customer will be charged for such tip amount designated by Customer. Tips will not be subject to any Soothe Commission. Soothe reserves the right at its discretion to cancel or reverse any payment, even if it has been previously confirmed by Soothe, as a result of any mistake or error, including any mistaken pricing or service description or other error. You will be charged for services as soon as a therapist accepts your appointment. There may be a temporary hold placed on your credit card for no more than the service amount prior to a therapist accepting your appointment|
|What if I need to reschedule or cancel my appointment. If you are a Third Party Therapist or Customer, you agree to Soothe’s cancellation and rescheduling policy and the associated charges and payments, the terms of which are located here https://www.soothe.com/cancellation and are incorporated herein by reference.|
|Ownership & Copyright|
|Ownership. The parties agree that all proprietary rights in the Services are and will remain the property of Soothe. This includes non-personally identifiable aggregate data collected by Soothe in connection with providing the Services, including usage statistics and traffic patterns, any and all rights, title and interest to which are hereby assigned to Soothe by you.|
|Copyright Restrictions. |
(a) The Websites and Apps, including but not limited to software, content, text, photographs, images, graphics, video, audio and the compilation as a whole (“Content”), are protected under Australian, U.S. and Canadian copyright, trademark and other laws by Soothe or its licensors, unless otherwise noted. All trade marks, service marks, trade names, branding and get-up (trade dress) on this website belong to Soothe, its related entities or its licensors. You must abide by all additional copyright notices or restrictions contained in the Websites, Apps or elsewhere. You may not delete any legal or proprietary notices in the Websites, Apps or elsewhere.
(b) Except as noted in Section 7 above: (1) the Websites and Apps may not be used, displayed, copied, reproduced, distributed, republished, uploaded, downloaded, posted, transmitted, mirrored or modified; and (2) except to the extent permitted by applicable law, you may not redistribute, sell, translate, modify, reverse-engineer or reverse-compile or decompile, disassemble or make derivative works of the Websites, Apps or any Content or components that are available on the Websites or Apps.
(c) You agree not to interfere or take action that results in interference with or disruption of the Websites or Apps or servers or networks connected to the Websites or Apps. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites or Apps. Soothe reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under Soothe’s and/or any third party’s intellectual property rights. Notwithstanding anything herein to the contrary, Soothe may revoke any of the foregoing rights and/or your access to the Services, including the App, or any part thereof, at any time without prior notice.
|Copyright Permission. Permission is granted for viewing the Website pages and Content on the Internet and via the Apps for your own informational purposes, subject to the terms and conditions of this Agreement. In the event that information is downloaded from the Websites or Apps, the information, including any Content, data or files incorporated in or generated by the Websites or Apps are owned by Soothe and Soothe retains complete title to the information and all property rights therein. All other rights are reserved. Reproduction of multiple copies of the Content, in whole or in part, for resale or distribution, is strictly prohibited except with the prior written permission of Soothe. To obtain written consent for such reproduction, please contact us at firstname.lastname@example.org.|
|Content License. As part of the Services, we may, in our sole discretion, permit you to post, upload, publish, submit or transmit certain content (“Your Materials”). We may also post a photograph or other visual likeness of you (“Your Image”). By making available any of Your Materials on or through the Services or if we make available Your Image on or through the Services, you (i) hereby grant to Soothe the right to use Your Materials and Your Image as necessary to provide the Services, promote the Services and improve the Services, and (ii) consent to any acts which would otherwise constitute a breach of any and all moral rights that you may have in and to Your Materials and Your Image. Soothe does not claim any ownership rights in any of Your Materials and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any of Your Materials. If you do not want to grant us permission to use Your Material or Your Image in accordance with this Agreement, please do not post, upload, publish, submit or transmit Your Materials or Your Image.|
|Copyright Policy. You acknowledge and agree that you are solely responsible for all of Your Materials that you make available through the Services. You represent and warrant that: (1) you either are the sole and exclusive owner of all of Your Materials that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to Soothe (or, the Third Party Therapist or Customer as applicable) the rights in Your Materials, as contemplated under this Agreement; and (2) neither Your Materials nor your posting, uploading, publication, submission or transmittal of Your Materials or Soothe’s (or, the Third Party Therapist’s or Customer’s as applicable) use of Your Materials or Your Image (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate any patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, result in the defamation of any person or contain content which is defamatory of any person, or result in the violation of any applicable law or regulation.|
|Trademarks/Use of Name or Brand. All Content, product names, trademarks, service marks and logos appearing as part of the Services, unless otherwise noted, are wholly owned or validly licensed by Soothe. Trademarks, service marks and logos owned by third parties remain the property of such third parties.|
|Feedback. If you submit any ideas, suggestions or testimonials “Feedback” to Soothe, you hereby transfer to us all rights in such Feedback without charge. You also agree that Soothe shall have the right to use and fully exploit such Feedback in any manner that we consider appropriate, including posting on the Internet. Please note that the Feedback you provide to us will not be treated as confidential information – accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary. You may only submit ideas and material if you have obtained appropriate copyright and other permission to submit such materials and to permit Soothe to use such material without restriction. You agree that you will not violate or infringe the rights of third parties, including privacy, publicity and intellectual and proprietary rights, such as copyright or trademark rights. You further agree not to submit any material which may result in the defamation of any person or which contains any content which is defamatory of any person.|
|Our Responsibility for Loss or Damage|
|You understand and acknowledge that Soothe only provides a platform for communication between Third Party Therapists and Customers, and does not itself provide massage therapy services. As such, Soothe disclaims any and all liability relating to your interactions with any Third Party Therapist(s) or other Customer(s), including any transaction between a Customer and a Third Party Therapist for the provision of massage therapy services. By using the Services, you agree that Soothe has no responsibility or liability to you related to any massage therapy services provided by Third Party Therapists other than as expressly set out in these Terms.|
|DISCLAIMER. Subject to section 10.2, and to the maximum extent permitted by law, Soothe excludes all representations, conditions or warranties, express or implied, including without limitation, warranties of acceptability, satisfactory quality, fitness for a particular purpose, title, compatibility, security, accuracy, or usefulness with respect to the products or services. You agree that any claims or causes of action arising out of any action or inaction of any Third Party Therapists or Customers, shall be exclusively between you and the Third Party Therapist or Customer (as applicable) and not Soothe. To the maximum extent permitted by law, the Products and Services are provided “as is.” You agree to use the Products and Services solely at your own risk. You assume full responsibility and risk of loss resulting from your use of the Services. Although we intend to take reasonable steps to prevent any damages to you, we are not liable for any damages or harm attributable to the foregoing. Any representations made to you by any Third Party Therapist(s) are made solely at the discretion of the Third Party Therapist and Soothe has no way to monitor or validate, and shall not be responsible or liable in any way for, any representations or statements made to you by the Third Party Therapist(s). You understand and acknowledge that Soothe shall have no liability to you for any statements or representations made by the Third Party Therapist to you as a result of your use of the Service(s).|
|AUSTRALIAN CONSUMER LAW. Nothing in these terms operates to limit or exclude liability that cannot by law be limited or excluded. If you are a consumer for the purposes of applicable State or Federal law in Australia, with the consequence that certain guarantees and certain rights and remedies are conferred on you which cannot be excluded, restricted or modified, then to the maximum extent permitted by law, our liability to you is limited at our option to: (a) in the case of goods: (i) replacement of the goods or the supply of equivalent goods; (ii) repair of the goods; (iii) payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) payment of the cost of having the goods repaired; and (b) in the case of services: (i) resupply of the services; or (ii) payment of the cost of resupplying the services.|
|THE SITE IS NOT BESPOKE TO YOU. You acknowledge that the Site has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the site meet your requirements.|
|WE ARE RESPONSIBLE TO YOU ONLY FOR FORESEEABLE LOSS AND DAMAGE CAUSED BY US. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking these terms or our failure to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time these terms are entered into and both we and you knew it might happen.|
|WE ARE NOT LIABLE FOR BUSINESS LOSSES. If you are an Individual Customer, we only make the site available for your domestic and private use. If you are a Third Party Therapist and use the site for any commercial, business or re-sale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.|
|NO LIABILITY FOR DAMAGE CAUSED BY UNAUTHORISED ACCESS. We will not be responsible for any loss or damage incurred as a result of unauthorised access to your Account which is not within our reasonable control.|
|THE SITE MAY NOT ALWAYS BE AVAILABLE. We do not warrant or guarantee that your use of the Services will be (a) uninterrupted or error free; or (b) will result in any requests for or provision of massage therapy services. You acknowledge that the Services may be unavailable at any time and for any reason (including scheduled maintenance).|
|LIMITED LIABILITY. Subject to clause 10.2 and to the maximum extent permitted by applicable laws, you agree that Soothe, its affiliates, agents and their respective officers, directors, shareholders, employees, contractors, representatives and agents will not be liable whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for: (a) any loss of profits; (b) any indirect or consequential loss; or (c) to the extent that you experience any loss or damages resulting from any massage therapy services booked through your use of the Services, including interactions, agreements or transactions with Third Party Therapist(s) or other Customers.|
|INDEMNIFICATION. You agree to indemnify and hold harmless Soothe, its affiliates, agents, contractors, and their respective officers, directors, shareholders, employees, contractors, representatives and agents, from any and all liabilities, claims, expenses and damages, including reasonable attorneys’ fees and costs, arising out of or in any way related to your breach of this agreement.|
|LIABILITY CAP. Subject to sections 10.2 and 10.12, and to the maximum extent permitted by law, the aggregate liability of Soothe, its affiliates, agents and their respective officers, directors, shareholders, employees, contractors, representatives and agents to you for all claims arising from or relating to this agreement or your use of the Services, any cause of action sounding in contract, tort, or strict liability, will not exceed the greater of: (a) the total amount received by Soothe from you during the six-month period prior to the act, omission or occurrence giving rise to such liability, or (b) $100.|
|This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective or if a remedy fails of its essential purpose. You acknowledge and understand that the disclaimers, exclusions and limitations of liability set forth herein form an essential basis of the agreement between the parties hereto, that the parties have relied upon such disclaimers, exclusions and limitations of liability, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this agreement would be substantially different.|
|WHAT WE DO NOT EXCLUDE. Except where prohibited by applicable law, nothing in these terms shall limit or exclude our liability for: |
(a) death or personal injury resulting solely from our negligence or the negligence of our employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; and
(c) any other liability that cannot be excluded by applicable law.
|Third Party Links & App Store|
|Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Site contains links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Soothe does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms.|
|App Store. When you download our Apps, you may do so through a third party’s App Store. You acknowledge that the terms of this Agreement are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application (as such term is defined in Section 7): |
(a) Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
(b) You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Soothe and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Soothe.
(d) You and we acknowledge that, as between Soothe and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (1) product liability claims; (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
(e) You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Soothe and the App Store Owner, Soothe, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(f) You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of this Agreement, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
(h) Without limiting any other terms in this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
|When we might suspend or terminate your Account or Site access. We may, subject to applicable law, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate this Agreement and/or your access to the Services, and (b) deactivate or cancel your Account.|
|What happens when these Terms terminate? Upon termination we will promptly pay you any amounts that we reasonably determine we owe you (if any) in our discretion. In the event Soothe terminates this Agreement or your access to the Services or deactivates or cancels your Account, you will remain liable for all amounts due hereunder.|
|Your right to cancel. You may cancel your Account at any time by contacting us at the contact information set out in Section 2. Please note that if your Account is cancelled, we do not have any obligation to delete or return to you any of Your Materials that you have posted to the Services, including, but not limited to, any reviews or Feedback.|
|Our right to cancel. If we terminate this Agreement and/or your access to the Services as a result of your violation of any applicable law or regulation, we may also, at our sole discretion, inform law enforcement or regulatory authorities of the circumstances surrounding such termination.|
|Other Important Terms|
|Anti-Spam. Soothe prohibits the sending of unsolicited email or text messages (spam) or other communications that violate applicable privacy and anti-spam legislation. Spam is defined for this purpose as sending any message that encourages participation in a commercial activity unless prior authorization has been obtained from the recipient or unless a business or personal relationship has already been established with the recipient in accordance with the requirements under applicable law. Soothe also prohibits using false headers in emails or falsifying, forging or altering the origin of any email or text message in connection with Soothe, and/or any products and Services. Soothe prohibits engaging in any of the foregoing activities by using the service of another provider, remailer service, or otherwise. If you or anyone you know is “spammed” by someone in relation to Soothe’s Services, please contact us promptly via the contact mechanism made available via the website so that we may take appropriate action.|
|Governing Law and Jurisdiction. To the extent permitted by applicable by law, this Agreement will be governed by and interpreted in accordance with the laws of the State of California and we both agree to submit to the non-exclusive jurisdiction of the District Courts of California. This means that, if you are a citizen of Australia, you may bring a claim to enforce your consumer protection rights in connection with these Terms in California or in Australia.|
|Even if we delay in enforcing these Terms, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.|
|Rights and Remedies. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.|
|If a dispute arises from this contract, a party to the contract must not commence court or arbitration proceedings relating to the dispute unless that party has participated in a mediation in accordance with sections 14.2 and 14.3. This paragraph does not apply to an application for urgent interlocutory relief. A party to this contract claiming that a dispute has arisen from the contract (“the Dispute”) must give a written notice specifying the nature of the Dispute (“the Notice”) to the other party to the contract. The parties must then participate in mediation in accordance with this clause. The mediation is to be conducted in Sydney, NSW. If the parties do not agree, within seven days of receipt of the Notice (or within a longer period agreed in writing by them) on: |
(a) the procedures to be adopted in a mediation of the Dispute; and
(b) the timetable for all the steps in those procedures; and
(c) the identity and fees of the mediator; then:
(d) he President of The Law Society of New South Wales will appoint the mediator, determine the mediator’s fees and determine the proportion of those fees to be paid by each party (to be in equal shares unless otherwise agreed by the parties); and
(e) the parties must mediate the Dispute:
(i) with the mediator appointed under clause 14.3(d);
(ii) in good faith; and
(iii) in accordance with the Mediation Rules of The Law Society of New South Wales.
If a party commences proceedings relating to the Dispute other than for urgent interlocutory relief, that party must consent to orders under s. 26 of the Civil Procedure Act 2005 (NSW) that:
(a) the proceedings relating to the Dispute be referred to mediation by a mediator; and
(b) if the parties do not agree on a mediator within seven days of the order referred to in clause 14.4(b), the mediator appointed by the President of the Law Society of New South Wales will be deemed to have been appointed by the Court.
If a party:
(a) refuses to participate in a mediation of the Dispute to which it earlier agreed; or
(b) refuses to comply with section 14.3(e), a notice having been served in accordance with section 14.2.; then,
(i) that party is not entitled to recover its costs in any court proceedings or arbitration relating to the Dispute, even if that party is successful; and
(ii) that party is deemed to have consented to a decree of the Supreme Court of New South Wales that it will specifically perform and carry into execution section 14.3(e).
If the Dispute is not resolved within 90 days of the commencement of the mediation, either party may commence court proceedings.
|If a court finds part of this Agreement illegal, the rest will continue in force. Each of the Sections of this Agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining Sections will remain in full force and effect.|
|We may transfer these Terms to someone else. We may transfer our rights and obligations under these Terms to another organization – for example, this could include another member of our group of companies or someone who buys our business. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms.|
|Nobody else has any rights under these Terms. These Terms are between you and us. No other person shall have any rights to enforce any of its terms.|
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.