NEAVANA TERRA
TERMS & CONDITIONS
IMPORTANT NOTICE: THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CONTAINS A BINDING ARBITRATION PROVISION AND A CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY BECAUSE IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE BINDING INDIVIDUAL ARBITRATION SECTION BELOW.
Effective Date: This Agreement was last updated on June 29, 2021
This Agreement sets forth the standards of use for the www.neavanaterra.com website (the “Website”), the Neavana Terra® Mobile Application (the “Mobile Application”) and the Neavana Terra® In-Store Forms Application (the “In-Store Application”) (the Mobile Application and In-Store Application are collectively the “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 Neavana Terra® 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 Neavana Terra, LLC (“NT, LLC”), nor any of its past, present, or future affiliates or subsidiaries and their respective officers, directors, incorporators, members, partners, owners, agents, management, controlling parties, entities 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 “ME Entities”) is a party to any Wellness Agreement you may enter with Neavana Terra® location. Your continued use of the Website, the Application(s) and/or any Service (defined below) is an acknowledgement and acceptance by you that the ME Entities 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).
NT, LLC 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), Neavana Terra, LLC is providing you with information about products and services offered at Neavana Terra® locations, including massage and facial sessions, along with (a) the ability to schedule, modify and/or cancel appointments with any Neavana Terrra® location; (b) provide information to and complete forms with Neavana Terrra® location regarding massage and facial sessions; (c) enter into and use benefits under any Wellness Agreement entered with Neavana Terrra® location; (d) purchase and/or redeem gift cards; (e) purchase of massage and facial sessions and product at Neavana Terrra® location as a guest; (f) view information about and find Neavana Terrra® location nearest you; (g) request company information; (h) complete customer satisfaction surveys; (i) view opportunities to apply for employment with Neavana Terra®; and/or (j) apply for job openings at Neavana Terra, LLC corporate (collectively the “Service”).
You must (1) provide all equipment necessary for accessing the Website and/or Mobile Application, (2) provide for your access to the Internet to use the Website and Mobile 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, the 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 ME ENTITIES 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 me entities 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 NEAVANA TERRA, LLC OR ITS AUTHORIZED REPRESENTATIVES or any employee at Neavana Terra® WILL CREATE A WARRANTY.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NEAVANA TERRA, LLC,® 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 ME ENTITIES SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR THE ME ENTITIES 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 ENTITIES 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.
INDEMNIFICATION
You agree to indemnify and hold the Neavana Terra Entities 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 Neavana Terra®, 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.
Last Update to Section 5: July 21, 2021
Purpose. This Binding Individual Arbitration Section governs all Disputes between you and Neavana Terra. 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 ME Entities 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 or purchased from Neavana Terra® ; 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 Neavana Terra that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, you and Neavana Terra 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.
Exclusions from Arbitration. You AND THE NEAVANA TERRA ENTITIES AGREE THAT the ONLY DISPUTES NOT COVERED BY THIS SECTION ARE (1) CLAIMS REGARDING the INFRINGEMENT, PROTECTION OR VALIDITY OF YOUR OR NEAVANA TERRRA, LLC’S TRADE SECRETS, COPYRIGHT, TRADEMARK OR PATENT RIGHTS AND (2) CLAIMS YOU choose to pursue in small claims court where jurisdiction and venue over Neavana Terra, LLC and you otherwise qualifies for such small claims court and where your claim does not include a request for any type of equitable relief.
Right to Opt-Out of Binding Arbitration and Class Action Waiver Within 30 Days. You have the right to opt-out and not be bound by this arbitration provision by sending written notice of your decision to opt-out to Neavana Terra, LLC at CLIENTSERVICES@NEAVANATERRA.COM. The written notice must be postmarked or emailed within thirty (30) days of the later of the date noted in the “Last Update to Section 5” or your initial log in to the Website, the Mobile Application or the In-Store Application. Your written notification must include: (1) your name, (2) your physical postal address, and (3) a clear statement that you do not wish to resolve disputes with Neavana Terra through arbitration. Otherwise you shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of this Section. If you opt-out of this arbitration provision, the ME Entities also will not be bound by it. If you do not affirmatively elect to opt out as described above, your use of the Website, the Application(s) and/or any Service will be deemed to be your irrevocable acceptance of this Agreement and any changes/updates to this Section.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH NEAVANA TERRA, YOU MUST FIRST SEND WRITTEN NOTICE OF THE NATURE OF THE DISPUTE TO CLIENTSERVICES@NEAVANATERRA.COM TO GIVE NEAVANA TERRA WITH WHICH YOU HAVE A DISPUTE THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than sixty (60) days after you provide notice of the Dispute. If Neavana Terra with which you have a Dispute does not resolve your Dispute within sixty (60) days from receipt of written notice of the Dispute, you or the Neavana Terra with which you have a Dispute may pursue your claim in arbitration pursuant to the terms in this Section.
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.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or the Neavana Terra with which you have a Dispute elect(s) to resolve your Dispute through arbitration, the party initiating the arbitration proceeding must initiate it with JAMS, http://www.jamsadr.com. The terms of this Section govern in the event they conflict with the relevant JAMS rules described below.
Arbitration Procedures. Because the Website, the Applications and any Service involve interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. The arbitration shall be conducted by a single arbitrator. Except as otherwise provided in this Section, the arbitration shall be governed by the rules set forth in this Agreement and (1) for claims of less than $75,000, the arbitration shall be governed by the JAMS Streamlined Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated; and (2) for claims over $75,000, the arbitration shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated (JAMS rules are available athttp://www.jamsadr.com/ or by calling JAMS at 1-800-352-5267).
Neavana Terra, LLC shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $75,000, unless the arbitrator finds the arbitration to be frivolous. You are responsible for all other additional costs that you may incur in connection with the arbitration including, but not limited to attorney’s fees and expert witness costs unless Neavana Terra, LLC is otherwise specifically required to pay such fees under applicable law. For claims that total more than $75,000, the JAMS Rules will govern payment of filing fees and arbitration fees. The decision of the arbitrator will be in writing and binding and conclusive on the ME Entities and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Dispositive motions, including without limitation, motions to dismiss and motions for summary judgment will be allowed in the arbitration. The arbitrator must follow this Agreement and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees and expert witness costs. The ME Entities and you understand that, absent this mandatory arbitration provision, the ME Entities and you would have the right to sue in court and have a jury trial. The ME Entities and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If your claim is solely for monetary relief of $10,000 or less, and does not include a request for any type of equitable remedy, the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the JAMS Streamlined Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated.
Confidentiality of Arbitration Proceedings. Arbitration proceedings conducted pursuant to this Section 5 shall be strictly confidential. The fact that an arbitration exists or is proceeding, the nature of the Dispute, all documents exchanged in connection with the arbitration, all testimony (including transcripts of testimony, if any) that is given in the arbitration proceeding, and any arbitration award shall remain confidential. The only exceptions to this confidentiality provision are disclosures reasonably necessary to confirm or vacate an arbitration award, a judicial challenge to an arbitration award or its enforcement, or disclosure that is required by operation of law or court order; provided, however, that this Paragraph shall not prevent the disclosure of such information (1) as may be required to your legal and financial advisors and independent accountants; (2) as may be required to Neavana Terra’s (a) legal, financial and other professional advisors, regulators, rating agencies, independent accountants, analysts, agents, and/or directors, (b) shareholders and/or affiliates and their respective officers, directors and legal, financial and other professional advisors, and/or (c) existing or potential insurers or reinsurers, existing or potential investors, existing or potential lenders, or existing or potential purchasers; and/or (3) as otherwise required to comply with any applicable law or regulation.
Location of Arbitration. You or Neavana Terra with which you have a Dispute may initiate arbitration in either Maricopa County, Arizona or the United States county in which you reside. In the event that you select the county of your United States residence, Neavana Terra with which you have a Dispute may transfer the arbitration to Maricopa County, Arizona in the event that it agrees to pay any additional fees or costs you incur as a result of the change in the arbitration location as determined by the arbitrator.
Severability. If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that specific clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court and you and Neavana Terra with which you have a dispute each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
Continuation. This Section shall survive any termination of this Agreement or the provision of any Service to you.