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TERMS & CONDITIONS

Updated: August 2014


These Terms & Conditions (“Terms”) apply to your use of the MassageElements.com website (the “Site”) and your purchase of any products (“Products”) from Massage Envy Elements, LLC (“Massage Elements”, “we”, “us” or “ours”) through the Site or through other means that might be made by Massage Elements for the purchase of Products. By using the Site or purchasing any Products from Massage Elements you agree to these Terms. If you are making a purchase on behalf of your employer or other legal entity, your represent and warrant that you are authorized to bind your employer or legal entity to these Terms.

THESE TERMS MAY CHANGE

Massage Elements reserves the right to update or modify these Terms at any time without prior notice. Your use of this Site or purchase of Products following any such change constitutes your agreement to follow and be bound by the Terms as changed. For this reason, we encourage you to review these Terms whenever you use this Site.

INTELLECTUAL PROPERTY OWNERSHIP

All content, information, text, graphics, logos, images and icons, as well as the arrangement thereof (collectively, the “Content”), and all copyrights and other intellectual property rights in the Content, are the sole and exclusive property of Massage Elements or its licensors. All rights not expressly granted herein are reserved to Massage Elements. Massage Elements® is a registered trademark of Massage Envy Franchising, LLC. Unauthorized use is prohibited.

USE OF SITE

Subject to these Terms, Massage Elements hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Content and to use this Site solely for your personal use. Except for the foregoing license, you have no other rights in the Site or any Content and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Content in any manner.

PRIVACY POLICY

Your use of the Site is subject to our Privacy Policy. Please review that policy before using the Site or submitting any personal information to us.

TERMS OF SALE

Accounts:

You must set up an account with Massage Elements to order Product. You agree to provide full, complete and accurate information when setting up an account and to update that information promptly if it should change at any time. You will be issued a password and user ID to access your online account. Your user name and password are for your personal use only. If you use the Site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password.

Pricing:

The pricing for all Products shall be as set forth in the prices posted on the Site, except that special pricing may be agreed upon for custom or special orders. Massage Elements reserves the right to change pricing at any time without notice and is not responsible for incorrect pricing on the Site.

Orders:

All orders must be placed through approved online or other order forms provided by Massage Elements. You may not vary these Terms through a different form of purchase order, invoice, instructions or any other form of document. All attempts to do so are hereby rejected by Massage Elements and are null and void. Orders are not binding on Massage Elements until reviewed and approved by Massage Elements. Placement of an order does not mean it was accepted.

Inventory and Stock:

Product orders are subject to availability of stock. Massage Elements also reserves the right to limit quantities purchased (including after you have submitted your order). You will be notified by an agent or representative of Massage Elements of the unavailability of that Product and offered alternate options, if available. In addition, Massage Elements reserves the right to change or discontinue any Product offering (even after ordered) at any time without liability to you.

Product Lead Time:

Certain Products are not available for immediate shipment. These Products may include but are not limited to special orders, custom, hand crafted and backordered Products. These Products will be shipped via the method selected in accordance with the lead time stated in the description of the Product.

Colors:

Massage Elements strives to display as accurately as possible the colors of the Products shown on the Site. However, because the colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.

Errors and Inaccuracies:

Massage Elements strives to describe and display its Products accurately. Despite these efforts, the Site may contain typographical errors or inaccuracies, including Product description, pricing and availability, and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted your order). Your sole remedy and our sole liability for such errors, inaccuracies or omissions is to cancel the order and seek a refund of the purchase price in accordance with the Warranty Policy.

Returns and Warranties:

Please see the Warranty, Returns & Exchanges Policy (“Warranty Policy”) for applicable manufacturer’s warranty and Massage Elements’ returns policies for the Products. You agree to look only to the manufacturer for any manufacturer’s warranties. EXCEPT FOR THE MANUFACTURER’S WARRANTIES SET FORTH IN THE WARRANTY POLICY, PRODUCTS ARE OFFERED ON AN "AS IS," "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, MASSAGE ELEMENTS DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.

Shipping:

Shipping method defaults to standard ground delivery unless otherwise specified by you at the time of check-out. You will pay all applicable shipping charges for chosen method of delivery plus a handling fee. Products will be shipped to the shipping address based on availability from the supplier. If no shipping address is provided, the order will be shipped to the customers billing address. If the order is rejected or undeliverable by no fault of Massage Elements or the supplier, you are responsible for all charges that may be incurred in the storage, delivery and return of the Products. We do not guarantee delivery by any specified date and are not responsible for late deliveries. You are solely responsible for the receipt and storage of all Products that are shipped to you.

Shipping on Clinic Start-up orders: For clinic start-up order, the ship date that you place in the special instructions, at time of purchase, is the date that we strive to deliver on. You agree to accept delivery of your shipment within 5 day +/- of the requested date, and are required to have a location to store purchased items.

Risk of Loss:

The risk of loss and title to Products purchased from Massage Elements passes to you upon delivery to the Massage Elements’ designated carrier.

Payment:

All orders must be paid in full, including all applicable shipping charges and taxes, prior to shipment, unless Massage Elements has agreed in writing to credit terms. If you wish to purchase any product made available through the Site, you may be asked to supply certain information relevant to your purchase, including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY PURCHASE. By submitting such information, you grant to Massage Elements the right to provide such information to third parties for purposes of facilitating the completion of orders initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any order.

Order Cancellation:

You may only cancel an order prior to shipment, provided that:

·         A 10% order cancellation fee will be charged for any orders processed to the warehouses.

·         All orders containing custom product will be subject to a 75% cancellation fee if the order is cancelled after the production of the order has begun.

Massage Elements reserves the right to cancel any order to any customer for any reason at any time. The only form of remedy and Massage Elements’ sole and exclusive liability for such cancellation is a refund of any purchase price paid.

Returned Checks:

A $25.00 fee will be applied to all returned checks. The order production will halt until payment has been made in full.

TERMINATION

Massage Elements reserves the right, without notice and in its sole discretion, to terminate your account or your use of the Site, and to block or prevent future access to and use of the Site if you violate any of these Terms.

GENERAL

Links to Third Party Sites:

The Site may contain links to websites of third parties, including social sites and product manufacturers. Massage Elements is not responsible for and has no liability for the functionality, actions, inactions, privacy settings, privacy policies, terms and conditions and content of any such website. YOUR USE OF THIRD PARTY WEB SITES AND RESOURCES IS AT YOUR OWN RISK.

No Export:

This Site and the Products offered on this Site are intended for use only in the United States.

Disclaimers:

Your use of this Site is at your own risk.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE AND ANY INFORMATION OR CONTENT CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

WITHOUT LIMITING THE FOREGOING, MASSAGE ELEMENTS DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THIS SITE IS ACCURATE, COMPLETE, RELIABLE, USEFUL, TIMELY OR CURRENT OR THAT THIS SITE WILL OPERATE WITHOUT INTERRUPTION OR ERROR.

THE INFORMATION CONTAINED ON THE SITE HAS BEEN DEVISED WITHOUT REFERENCE TO CULTURAL, DIETARY, SOCIETAL, LANGUAGE, PRESCRIBING, OR DISPENSING CONDITIONS (INCLUDING THOSE IMPOSED BY LAW), OTHER THAN THOSE OF THE UNITED STATES, WHICH MIGHT AFFECT THE INFORMATION PROVIDED.

THE INFORMATION CONTAINED ON THE SITE IS INTENDED AS AN EDUCATIONAL AID ONLY. IT IS NOT INTENDED AS MEDICAL ADVICE FOR INDIVIDUAL CONDITIONS OR TREATMENT. IT IS NOT A SUBSTITUTE FOR A MEDICAL EXAM, NOR DOES IT REPLACE THE NEED FOR SERVICES PROVIDED BY MEDICAL PROFESSIONALS. TALK TO YOUR DOCTOR OR PHARMACIST BEFORE TAKING ANY PRESCRIPTION OR OVER THE COUNTER DRUGS (INCLUDING ANY HERBAL MEDICINES OR SUPPLEMENTS) OR FOLLOWING ANY TREATMENT OR REGIMEN. ONLY YOUR DOCTOR OR PHARMACIST CAN PROVIDE YOU WITH ADVICE ON WHAT IS SAFE AND EFFECTIVE FOR YOU.

Limitation of Liability:

UNDER NO CIRCUMSTANCES SHALL MASSAGE ELEMENTS OR ANY OF ITS RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SITE OR THE PURCHASE OF THE PRODUCTS.

THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS), WHETHER IN CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF MASSAGE ELEMENTS HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

IF YOU ARE DISSATISFIED WITH THIS SITE OR ANY CONTENT ON THE SITE, OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS SITE.

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF MASSAGE ELEMENTS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).

Choice of Law and Dispute Resolution:

The laws of the State of Arizona, without regard to Arizona’s choice–of–law principles, govern all matters arising out of or related to these Terms, including the sale of any Products. You agree that the exclusive forum and venue for any legal action arising out of or related to these Terms, including the sale of any Products, shall be the federal or state courts of Maricopa County, Arizona and you submit to the personal jurisdiction and venue of those courts. You agree that you cannot bring any claim arising out of these Terms or the Products more than one (1) month after such claim accrues.

Electronic Communications:

When you access or use the Site, send e-mails to us, or receive electronic communications from us, you are, and consent to, communicating with Massage Elements electronically. You agree that all notices, disclosures, agreements, policies, and other communications that Massage Elements provides to you electronically satisfy any requirement that such communications be in writing.

Other:

These Terms, together with the Privacy Policy, the Warranty Policy and any other policies that we post on the Site relating to its subject matter, constitute the entire agreement between you and Massage Elements and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, with respect to such subject matter. No provision of these Terms shall be waived except pursuant to a writing executed by an officer of the party against whom the waiver is sought. If any provision of these Terms is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. Nothing in these Terms creates a relationship of agent and principal, partners, joint ventures, franchisee or employer–employee between the parties, and no act or obligation of either party will in any way bind the other. You may not assign, transfer or sublicense any or all of your rights or obligations under these Terms without our express prior written consent. We will not be responsible for failure to fulfill any obligation due to causes beyond our control.


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