Terms & Conditions
Last modified: February 13, 2020
These Terms and Conditions (“Terms”) detail the conditions of use for the www.whiteorchid59.com Website (the “Website”) and any in-store documents. By using the Website or its later modifications, you agree to these Terms or modified Terms at any later date, as applicable. If you do not agree to these Terms, you may not use the Website.
These Terms are to be interpreted broadly and it directs any and all access and use of the Website content or data contained therein, and all facets of the service. All Terms listed in the consent form in-store are incorporated herein, likewise, all terms listed here are incorporated in the in-store consent form. In the event of a conflict the in-store consent form governs. White Orchid Medical Spa, LLC (“WOMS”) reserves the right, at any time, to revise, update or modify these Terms. Please check the Website regularly for modification, as Website revision to the Terms have the effect of an immediate impact of change on these Terms.
1. WOMS SERVICES
Our Website lists details about products and services obtainable at our locations, along with the capacity to, purchase, schedule, cancel or modify an in-store appointment for any of our services; procure or use gift cards, complete forms; fill out surveys; and information about open positions.
You agree to indemnify, defend, and hold WOMS and its successors and assigns harmless from and against and in respect of any and all third party obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorneys’ fees that WOMS incurs or suffers which relate to your use of this Website, claims, demands, losses, costs, expenses, your failure to perform any of your obligations under these Terms, or your breach of any of your representations or warranties made under these Terms.
3. DISCLAIMER OF WARRANTIES
AS PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. NEITHER WOMS, NOR ITS AFFILIATES OR SUBSIDIARIES OR ANY ENTITIES[ EMPLOYEES, AGENTS, THIRD-PARTY LICENSORS OR CONTENT PROVIDERS OR THEIR DIRECTORS, OFFICERS, AGENTS OR WARRANT THAT SITE USE WILL BE SECURE, ERROR FREE, VIRUS-FREE, UNINTERRUPTED, SECURE, NOR DO THEY WARRANTY AS TO (I) RESULTS THAT MAY BE ATTAINED FROM SITE USE, OR (II) COMPLETENESS, ACCURACY, OR DEPENDABILITY OF SITE CONTENT, INCLUDING, ANY SERVICES, ALL MADE ACCESSIBLE OR AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT ALLOWED BY APPLICABLE LAW WOMS HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER, IMPLIED, EXPRESS, OR STATUTORY, AS TO SITE CONTENT OR OPERATION, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, SUITABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR, NON-INFRINGEMENT, NON-INTERFERENCE, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING.
4. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL WOMS BE LIABLE TO YOU FOR ANY DAMAGES OR LOSSES WHATSOEVER INCLUDING SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER LOSS WHATSOEVER; THIS INCLUDES LOSS OF DATA, PERSONAL INJURY, PROFITS, REVENUE, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE, EVEN IF WOMS WAS PREVIOUSLY NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A CONTRACT, WARRANTY, TORT, NEGLIGENCE, OR OTHER ACTION THAT ARISES IN ANY MATTER OUT OF OR IN CONNECTION WITH THE PERFORMANCE, USE OF, INABILITY TO USE, OR SERVICES PROVIDED BY WOMS.
WOMS ASSUMES NO LIABILITY OR RESPONSIBILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE PLATFORM, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS SITE, FOR ANY DEFAMATION, ERROR, OMISSION, LIBEL, SLANDER, FALSEHOOD, PROFANITY, OBSCENITY, PORNOGRAPHY, DANGER, HARM, INACCURACY CONTAINED THEREIN, OR HARM TO PROPERTY OR PERSON CAUSED THEREBY.
WOMS ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY DUE TO YOUR BROWSING OF, ACCESS TO, USE OF OR DOWNLOADING ANY MATERIAL FROM THE PLATFORM. SUCH LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL WOMS’S TOTAL LIABILITY TO YOU FOR ALL LOSSES DAMAGES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, WARRANTY, OR TORT EXCEED (I) TOTAL AMOUNT PAID BY YOU TO WOMS, OR (II) $750 (WHICHEVER IS LESS). AS SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW.
YOU AND WOMS AGREE THAT LIMITATIONS OF LIABILITY AND WARRANTY DISCLAIMERS IN THESE TERMS ARE MATERIAL, BARGAINED-FOR BASES OF THESE TERMS, AND HAVE BEEN ASSESSED IN DETERMINING THE CONSIDERATION TO BE CONSIDERED BY EACH PARTY UNDER THESE TERMS AND IN THE DECISION BY EACH PARTY TO ENTER THESE TERMS. YOU AND WOMS AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM AND SERVICES.
YOU REPRESENT AND WARRANT THAT (A) YOU ARE AT LEAST 18 YEARS OLD, (B) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, AND (C) YOU HAVE THE RIGHT AND AUTHORITY TO ENTER THESE TERMS.
YOU MAY NOT ACCESS OR USE THIS WEBSITE, AND/OR THE INFORMATION OR CONTENT CONTAINED ON ANY ONE OF THEM, AND/OR ANY OF OUR SERVICES IF YOU ARE UNDER 18 YEARS OF AGE. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE OR ACCESS THE WEBSITE AND/OR THE CONTENT OR INFORMATION CONTAINED AND/OR ANY SERVICE.
You and WOMS agree that any and all claims or disputes that have arisen, or may arise, between you and WOMS (including as they relate to any third-parties) that relate in any way to or arise out of these Terms or previous versions of these Terms, your use of the services or access to the services, the actions of WOMS or its agents, or any services sold, shall be resolved only via final and binding arbitration, not in court. The Federal Arbitration Act governs the enforcement and interpretation of this Agreement to Arbitrate.
A. Prohibition of Class Actions and Non-Individualized Relief
You and WOMS agree that claims may only be brought against the other on an individual basis and not as part of a plaintiff or class member in any purported class, representative or private attorney general proceeding or action. Unless parties agree otherwise, arbitrator may not join or consolidate more than one party’s claims and may not otherwise preside over any form of consolidated, class, representative, class, or private attorney general action or proceeding.
Also, arbitrator may award relief (including injunctive monetary, injunctive, and declaratory relief) only in favor of the party seeking relief and only to the extent necessary to provide relief demanded by that party’s individual claim(s). If a court finds that applicable law precludes enforcement of any of this paragraph as to a particular claim for relief, then said claim (and only that claim) must be severed from the arbitration and can be brought in court, subject to your and WOMS’s right to appeal court’s decision. All other claims will be arbitrated.
B. Arbitration Procedures
Arbitration uses an objective arbitrator instead of a judge, and court rarely reviews arbitration award. Still, an arbitrator can award the same relief and damages on an individual basis that a court can to an individual. An arbitrator should apply these Terms as a court would. All issues are for the arbitrator to opine, except issues relating to arbitrability, the enforceability, or scope of this these arbitration clauses.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules under these Terms. The use of the word “arbitrator” herein shall not be construed to prohibit more than one arbitrator from presiding over arbitration; rather, the AAA’s rules will govern the amount of arbitrators that may preside over an arbitration conducted under these Terms.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). The Notice to WOMS should be sent to WOMS, LLC, Attn: General Counsel, Re: Notice of Dispute, 961 Broadway, Suite 115, Woodmere, NY 11598.
WOMS will send any Notice to you at the physical address we have on file relating to your account; it is your duty to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the basis and nature of the claims the party is asserting and the relief sought.
If you and WOMS cannot resolve the claims described in the Notice within 30 days after Notice is sent, you or WOMS may initiate arbitration proceedings. In addition to filing this form with the AAA complying its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to the above address.
If WOMS initiates an arbitration, it will send you a copy of the completed form to the physical address we have associated with your WOMS account. Any settlement offer made by either party shall not be disclosed to the arbitrator.
The hearing shall be held in the county in which you reside or at a different mutually agreed upon location. If the value of cost sought is $10,000 or less, you or WOMS may elect to have arbitration conducted by phone or based only on written submissions, whatever election shall be binding on you and WOMS subject to the arbitrator’s discretion to demand an in-person hearing, if the circumstances warrant. In cases where the hearing is in-person, you and/or WOMS may attend via telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in compliance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be held by precedents in prior arbitrations involving different users, but is bound by holdings in arbitrations involving the same WOMS customer to the extent required by applicable law. The arbitrator’s award is final and binding and judgment on the award rendered by the arbitrator may be entered in any court with jurisdiction thereof.
C. Costs of Arbitration
Payment of all arbitrator, filing and administration fees will be governed by the AAA’s rules, unless otherwise stated herein. If (a) you willfully fail to comply with the Notice requirement discussed above, or (b) if the arbitrator determines the claim(s) you assert in arbitration to be frivolous, you agree to reimburse WOMS for all fees pertaining to the arbitration paid by WOMS on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
7. GOVERNING LAW
THE PARTIES AGREE THAT THE LAWS OF THE STATE OF NEW YORK, PUTTING ASIDE CONFLICT OF LAW RULES, GOVERN THESE TERMS AND ANY DISPUTES BETWEEN YOU AND WOMS. ANY AND ALL DISPUTES NOT UNDER THE UMBRELLA OF ARBITRATION WILL BE LITIGATED BY EITHER PARTY IN NEW YORK.
8. INTERRUPTIONS TO SERVICE
WOMS endeavors to maintain the Website and its operation, but is not, and cannot be, dutiful for the results of any defects that may exist on the Website or its operation. As to the operation of the Website, WOMS makes no warranty that (a) the operation of the Website will meet the user’s requirements; (b) access to the Website will be secure, uninterrupted, timely, free of viruses, worms, or other harmful components, or free of errors or defects; (c) the results that may be obtained from Website use will be reliable or accurate; or (iv) defects will be corrected. You assume the entire cost of all repair, servicing, or correction that may be necessary for your software and computer equipment as a result of any errors, viruses, or any other problems whatsoever you may have due to visiting the Website.
9. THIRD-PARTY SITES, MOBILE APPLICATIONS AND INFORMATION
Certain features, content, and functionality on this Website, which may include, for instance, information about our company, general information or about third parties, may be owned and operated by third parties. We may, monitor or review any areas on the Website containing third-party content. The inclusion of such content is not, and should not be construed as, our endorsement of such content. Your use and interaction with such content may be subject to the terms and conditions with the content owners. If you access such content, you will comply with those terms.
WE ACCEPT NO RESPONSIBILITY FOR THIRD-PARTY CONTENT AND HEREBY DISCLAIM ALL LIABILITY RELATED TO IT.
10. SECURITY AND PASSWORD; CREDIT CARD INFORMATION
You alone are responsible for maintaining the confidentiality of your password and account. Please do not share your password or account information. You represent and warrant that your credit card information is true and that you are authorized to use the credit card.
11. INTELLECTUAL PROPERTY
All trademarks, trade names, service marks, trade dress, Content and Third-Party Content displayed on the Websites, (collectively, the “IP”), are our property or the property of our licensors, content providers or other third parties. Except as specifically provided in these Terms, nothing in these Terms or on the Website or on the store shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any IP without our or the licensor’s prior written consent.
12. NOTIFICATION OF CLAIMED COPYRIGHT INFRINGEMENT
Pursuant to Copyright Revision Act section 512(a), as inculcated via the Digital Millennium Copyright Act (DMCA), WOMS designates its general counsel as its agent for receipt of notifications of DMCA violations.
Attn: General Counsel
By Mail: 961 Broadway, Suite 115, Woodmere, NY 11598
By Email: [email protected]
13. OTHER TERMS
Except as otherwise stated herein, these Terms constitutes the entire and exclusive understanding and agreement between you and WOMS regarding the Website, and any Service and replaces and supersedes any and all prior oral and written understandings or agreements between you and WOMS regarding our services or our Website. These Terms shall apply in addition to, and not be superseded by, any other written agreement between you and WOMS relating to your participation as a service or Website user.
If any clause of these Terms shall be unlawful, void or unenforceable for any reason, the other provisions (and any piecemeal enforceable clause) shall not be impacted thereby and shall remain valid and enforceable to the maximum extent. You agree these Terms and any other agreement referenced in the Terms may be assigned by WOMS in its sole discretion, in the event of a merger or acquisition to a third party.