Terms of Service and Conditions
Last Updated: May 2018
TERMS OF SERVICE
TESIGNS® Inc, a Colorado corporation d/b/a “Pomale.com” (“Pomale.com” “we”, “us”, “our”) provides services (the “Services”) that connect destinations that offer wellness programs and wellness professionals, businesses, or organizations (collectively, “Providers”) who have unique knowledge of and experience with wellness retreats, workshops, journeys, programs, services, or products (collectively, “Wellness Adventures”) with consumers seeking to visit wellness destinations, attend wellness workshops, journeys, or retreats or receive such programs, services, or products. TESIGNS® Inc makes these services accessible at its online platform www.pomale.com (the “Site”) and/or as an application for mobile services (the “Application”).
Providers may use the Site, Application and Services to make themselves available to offer certain destinations and Wellness Adventures to consumers by submitting profiles and listings that provide information about such Wellness Adventures and Providers’ knowledge, experience, and/or destination, their contact details and online media platforms.
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH PROVIDERS MAY CREATE LISTINGS FOR WELLNESS ADVENTURES, PERSONAL PROFILES OR DESTINATION PROFILES AND CONSUMERS MAY LEARN ABOUT AND BOOK WELLNESS ADVENTURES DIRECTLY WITH THE PROVIDER.
Pomale.com is not an operator or provider of the Wellness Adventures, and Pomale.com does not own, sell, resell, furnish, provide, manage and/or control any transportation, tours or tour activities or services. Pomale.com is not an Online Travel Agent, reseller or any kind of agent of the Provider. Pomale.com’s responsibilities are strictly limited to facilitating the availability of the Services.
YOU UNDERSTAND AND AGREE THAT POMALE.COM IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PROVIDERS AND CONSUMERS, NOR IS POMALE.COM A BROKER, AGENT OR INSURER. POMALE.COM CANNOT AND DOES NOT CONTROL THE ACCURACY OF THE CONTENT CONTAINED IN ANY LISTINGS OR THE CONDITION, LEGALITY OR SUITABILITY OF ANY WELLNESS ADVENTURE OR DESTINATION, AND POMALE.COM HEREBY DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. ACCORDINGLY, THE LISTING, PLANNING, PROVIDING, BOOKING OR PARTAKING IN OR OF ANY WELLNESS ADVENTURE OR VISITING A DESTINATION LISTED ON POMALE.COM ARE AT THE PROVIDER’S AND/OR CONSUMER’S OWN RISK.
The Site, Application and Services are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
Pomale.com reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site, Application or Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH POMALE.COM ON THE SITE OR APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, OR SERVICES. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
We will create your retreat or profile page for the Site and Application based upon the information you provide to us. You may not have more than one (1) active profile per Provider or Wellness Adventure. You agree to provide accurate, current and complete information during the profile registration process and to submit updated information to us annually to keep it accurate, current and complete.
Pomale.com reserves the right refuse acceptance of a profile registration at any time for any reason and to suspend or terminate your profile page if you create more than one (1) profile per Provider or Wellness Adventure or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete.
You acknowledge and agree that you are responsible for any and all information you submit to us. Accordingly, you represent and warrant that any information you submit to us for your personal, destination profile or Wellness Adventure profile (i) will not breach any agreements you have entered into with any third parties, and (ii) will (a) be in compliance with all applicable laws and rules and regulations that may apply to any information or profile page content (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that Pomale.com assumes no responsibility for a Provider’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations.
Pomale.com reserves the right, at any time and without prior notice, refuse services to anybody or to remove or disable access to the Site, Application and Services for any reason.
LISTING FEES, BOOKINGS & FINANCIAL TERMS
Listing Fees & Financial Terms for Providers
Pomale.com charges Providers for and collects Listing Fees for the creation of profile listings. Payments for Listing Fees due to pomale.com must be made by credit card only.
The effective date of any Listing is the date it is purchased by Provider. The first term for a destination or personal Profile Listing is for one (1) year beginning on the effective date. After that the Listing shall automatically renew annually on the effective date for subsequent one (1) year terms or, if after one year Provider chooses the monthly payment option, the Listing shall automatically renew each month until cancelled by Provider.
After the first anniversary of the effective date of any Listing Order Provider may terminate a Listing for any reason upon thirty (30) days’ prior written notice to pomale.com and, if Provider has already paid the annual fee, Provider shall receive a pro-rata refund. No refunds will be made on monthly installment.
Wellness Adventure profile listings must be paid fully in advance for the period of time chosen upon purchase and will be removed to the earlier of two (2) weeks after the end date of the Wellness Adventure or upon expiration date of the Listing Order purchased. If a Wellness Adventure is fully booked or gets cancelled prior to expiration of the Listing or before its start date, we will update the profile listing accordingly at no additional charge. Provider agrees to keep pomale.com informed about registration status. After the first 6 months of the effective date of the Listing Order Provider may cancel the Wellness Adventure profile listing at any time for any reason upon thirty (30) days’ prior written notice to pomale.com. No refunds will be made on purchases of Wellness Adventure profiles after the profile has been created and made available on pomale.com.
Provider will submit the content and graphics for their Profile Listings to pomale.com in a timely manner after the purchase was made. Pomale.com will create the online listing based on the information, content and graphics submitted by Provider and provide a preview link to the Provider to review and approve its Profile Listing. If Provider has not responded to this link within ten (10) business days, the Profile Listing will be deemed to have been approved by the Provider and will go live on Pomale.com.
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made on our site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. If Provider’s credit card cannot be accepted for payment at any time and an alternate card is not provided at the time any installment is due, pomale.com may, in its sole discretion, suspend Provider’s profile listing(s) and make relisting subject to a reinstatement fee. Pomale.com will not make payments to any other third party on behalf of Provider. If Provider breaches its payment obligations under these Terms and Conditions or any Purchase Order, Provider agrees to pay all costs, fees and expenses, including reasonable attorney’s fees, pomale.com incurs as a result of Provider’s breach.
Provider represents and warrants that (i) its business is, and will at all times be, operated in full compliance with all licensing and similar requirements to which it is subject, and (ii) its staff is, and will at all times be, in full compliance with all licensing and similar requirements to which it is subject, and properly trained to perform the procedures/services each Provider performs.
Listings on our Site have to meet minimum quality standards regarding quality and they should be consistent with the description provided by the Provider. If pomale.com receives notifications that consumers who book and pay for a Wellness Adventure or for a destination listed on pomale.com suffer ‘Quality Issues’ because the Wellness Adventure or destination does not meet our quality standards, Pomale.com reserves the right to remove the listing at any time without prior notice. The Provider shall not be entitled to any refunds for annual or monthly listing fees paid upfront.
If a Provider submits a listing and pomale.com upon review of the profile listing finds that the content provided is not congruent with pomale.com’s quality standards, Provider may purchase editorial services from pomale.com to bring the quality of the content up to par or withdraw the profile listing. In case of a withdrawal pomale.com will refund the Provider the listing fee paid less a $100 administrative fee.
A valid ‘Quality Issue’ generally falls into the following categories: (1) The description of the destination or Wellness Adventure profile in the Listing on the Site is materially inaccurate with respect to (a) the duration of a Wellness Adventure (b) the content of the Wellness Adventure (including but not limited to the stated activities or sites, as applicable), or (c) the physical location of the Wellness Adventure, or (d) the type, location or standard of the destination; or (2) the description of the personal profile does not accurately reflect the experience, background, skills, knowledge, expertise or credentials of the Provider; or (3) if, in Pomale.com’s sole judgment the conditions of the Wellness Adventure or destination do not meet safety or health standards that would be reasonably expected, given the nature of a particular Wellness Adventure offered.
You are solely responsible for all content, including, but not limited to code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials that you submit to the Site, Application or Services.
Pomale.com will review the profile you submitted and ensure that it meets pomale.com’s criteria for content, style, etiquette, readability and accuracy. Pomale.com reserves the right to correct typographical and grammatical errors, inaccuracies or omissions without prior notice and to edit the content for quality purposes.
The following are examples of the kind of content and/or use that is illegal or prohibited by Pomale.com. Pomale.com reserves the right to investigate and take appropriate legal action against anyone who, in Pomale.com’s sole discretion, violates this provision, including without limitation, removing the offending content from the Site, Application or Services, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.
You agree to not to:
- Provide any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to make available to third parties under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Pomale.com, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, Application or Services, or which may expose Pomale.com or its users to any harm or liability of any type;
- Interfere with or disrupt the Site, Application or Services or disobey any requirements, procedures, policies or regulations of networks connected to the Site, Application or Services;
- Violate any applicable local, state, national or international law, or any regulations having the force of law;
- Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Solicit personal information from anyone under the age of 18;
- Harvest or collect email addresses or other contact information of other users from the Site, Application or Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- Advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- Further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
- Obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Site, Application or Services;
- List, as a Provider, any Wellness Adventure or destination that you do not yourself have permission to provide (without limiting the foregoing, you will not list Wellness Adventures or destinations as a Provider if you are serving in the capacity of an agent for a third party);
- List, as a Provider, any Wellness Adventure or destination that may not be provided pursuant to the terms and conditions of an agreement with a third party;
- Contact another Provider for any purpose other than asking a question related to a booking or other offer made available by such Provider’s Profile or Listing;
- Recruit or otherwise solicit any Provider or other user of the Site, Application or Services to join third party services or websites that are competitive to Pomale.com, without Pomale.com’s prior written approval;
- As a Provider, submit any Listing or profile with misleading price information.
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, or transfer for any commercial purposes, any portion of the Site, Application or Services, use of the Site, Application or Services, or access to the Site, Application or Services. The Site, Application or Services are for your personal use.
Unless otherwise stated, pomale.com and/or its licensors own the intellectual property rights published on this website and materials used on and for this website. Subject to the license below, all these intellectual property rights are reserved.
You may view, download for caching purposes only, and print pages, files or other content from the website for your own personal use, subject to the restrictions set out below and elsewhere in these terms and conditions.
You must not:
- republish material from this website in neither print nor digital media or documents (including republication on another website);
- sell, rent or sub-license material from the website;
- show any material from the website in public;
- reproduce, duplicate, copy or otherwise exploit material on this website for a commercial purpose;
- edit or otherwise modify any material on the website;
- redistribute material from this website – except for content specifically and expressly made available for redistribution; or
- republish or reproduce any part of this website through the use of iframes or screenscrapers.
Where content is specifically made available for redistribution, it may only be redistributed within your organisation.
Pomale.com has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
Bookings & Financial Terms for Consumers
Consumers contact Providers directly for any bookings of Wellness Adventures, destinations or other events or services made available through the Site, Application or Services. If you, as a Consumer, choose to enter into a transaction with a Provider for the booking of a Wellness Adventure, destination or other event, you agree and understand that you enter into an agreement with the Provider and you agree to accept the Provider’s terms, conditions, rules and restrictions. You acknowledge and agree that you, and not Pomale.com, will be responsible for performing the obligations of any such agreements, that Pomale.com is not a party to such agreements, and that Pomale.com disclaims all liability arising from or related to any such agreements. You acknowledge and agree that Pomale.com is not a party to the agreement between you and the Provider.
ONLINE CONTENT AND INTELLECTUAL COPYRIGHT
Online Content, Software and Trademarks
Unless otherwise specified, the materials on this Website are for informative purposes only. Pomale.com is controlled and operated by TESIGNS® Inc from its office in Boulder County, Colorado. Users accessing the Website do so on their own initiative and are responsible for compliance with local laws, if and to the extent that local laws are applicable.
You acknowledge and agree that the Site, Application or Services may contain content or features (“Online Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Pomale.com, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Site, Application or Services or the Online Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally submit to the Site, Application or Services. In connection with your use of the Site, Application or Services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site, Application, Services or the Online Content other than as specifically authorized herein is strictly prohibited.
Any software on Pomale.com is the copyrighted work of pomale.com and/or its affiliates, and is protected by copyright laws and international treaty provisions. Your use of such Software is governed by the terms of the end user license agreement, if any, which accompanies, or is included with, the Software (“License Agreement”). You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms. Any reproduction or redistribution of the Software is expressly prohibited, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT.
The Pomale.com name and logos are trademarks and service marks of Pomale.com (collectively the “Pomale.com Trademarks”). Other Pomale.com, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Pomale.com. Nothing in these Terms, the Site, Application or Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Pomale.com Trademarks displayed on the Site, Application or Services, without our prior written permission in each instance. All goodwill generated from the use of Pomale.com Trademarks will inure to our exclusive benefit.
Third Party Material
Under no circumstances will Pomale.com be liable in any way for any content or materials of any third parties (including Providers), including, but not limited to, any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Pomale.com does not have a duty to pre-screen content, but that Pomale.com and its designees will have the right (but not the obligation) in their sole discretion to edit, refuse or remove any content that is available via the Site, Application or Services. Without limiting the foregoing, Pomale.com and its designees will have the right to remove any content that violates these Terms or is deemed by Pomale.com, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
Provider Content Submitted to the Site, Application or Services
With respect to the content or other materials you submit through the Site, Application or Services, you represent and warrant that you own all right, title and interest in and to such content, including, without limitation, all copyright and rights of publicity contained therein. By submitting your profiles for listings you hereby grant and will grant Pomale.com and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your content in connection with the operation of the Site, Application or Services, or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that profile submissions provided by you to Pomale.com are non-confidential and Pomale.com will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Pomale.com may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Pomale.com, its users and the public. You understand that the technical processing and transmission of the Site, Application or Services, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Third Party Websites
The Site, Application or Services may provide links or other access to other sites and resources on the Internet. Pomale.com has no control over such sites and resources and Pomale.com is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Pomale.com will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Site, Application or Services are between you and the third party, and you agree that Pomale.com is not liable for any loss or claim that you may have against any such third party.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org. You acknowledge and agree that all Feedback will be the sole and exclusive property of Pomale.com and you hereby irrevocably assign to Pomale.com and agree to irrevocably assign to Pomale.com all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Pomale.com’s request and expense, you will execute documents and take such further acts as Pomale.com may reasonably request to assist Pomale.com to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Disclosure of Information
Pomale.com may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against Pomale.com or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, such as these Terms, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of Pomale.com, its users, or members of the public. You acknowledge that Pomale.com has no obligation to monitor your access to or use of the Site, Application, Services or online content or to review or edit any online content, but has the right to do so for the purpose of operating and improving the Site, Application and Services (including without limitation for fraud prevention, risk assessment, investigation, customer support and marketing purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. Pomale.com reserves the right, at any time and without prior notice, to remove or disable access to any online content that Pomale.com, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
DISCLAIMERS AND LIMITATION OF LIABILITY
Disclaimer of Warranties
IF YOU CHOOSE TO USE THE SITE, APPLICATION, OR SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT ALL INQUIRIES OR BOOKING AGREEMENTS ARE BETWEEN THE CONSUMER AND THE PROVIDER AND THAT POMALE.COM IS NOT A LIMITED COLLECTION AGENT, OTA, TRAVEL AGENT OR AGENT OF ANY KIND OF THE PROIVDER. YOU FURTHER ACKNOWLEDGE AND AGREE THAT POMALE.COM DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY PROVIDER BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE SITE, APPLICATION, AND SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, POMALE.COM EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. POMALE.COM MAKES NO WARRANTY THAT THE SITE, APPLICATION, OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY CONTENT, THE LISTINGS OR ANY ADVENTURES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. POMALE.COM MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, SERVICES, OR CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE, APPLICATION, OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM POMALE.COM OR THROUGH THE SITE, APPLICATION, SERVICES OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THE PROVIDERS AND/OR OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY PROVIDERS OR CONSUMERS. YOU UNDERSTAND THAT POMALE.COM DOES IS NOT OBLIGATED TO VERIFY THE STATEMENTS OF CONTENT PROVIDERS OR TO REVIEW OR PARTICIPATE IN ANY WELLNESS RETREATS, WORKSHOPS, JOURNEYS, PROGRAMS OR SERVICES LISTED ON POMALE.COM. POMALE.COM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, PROVIDERS AND CONSUMERS PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY POMALE.COM
Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND CONTENT, YOUR LISTING OR BOOKING OF ANY RETREAT, WORKSHOP, JOURNEY, PROGRAM OR SERVICE VIA THE SITE, APPLICATION AND SERVICES, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF THE SITE, APPLICATION, SERVICES, WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER POMALE.COM NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, OR SERVICES, WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION, SERVICES, OR FROM YOUR LISTING OR BOOKING OF ANY ADVENTURE VIA THE SITE, APPLICATION AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT POMALE.COM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL POMALE.COM’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR PROFILE SUBMISSIONS OR PURCHASE OF ANY SERVICE OR DESTINATION VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, OR SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR THE PROFILE LISTINGS ON THE SITE, APPLICATION AND SERVICES AS A PROVIDER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN POMALE.COM AND YOU.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, APPLICATION OR SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE, APPLICATION OR SERVICES.
You agree to release, defend, indemnify and hold Pomale.com and its affiliates and subsidiaries, and their officers, directors, employees and agents harmless from and against any and all losses, damages (compensatory, direct, incidental, consequential or otherwise), expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or in any way relating to: (a) your access to or use of the your access to or use of the Site, Application, Services: (b) any online content; (c) your (ii) profile submission for a listing, or (ii) participation in a retreat, workshop, journey, program or service listed on pomale.com; or (d) your violation of these Terms or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
CONSUMERS’ ACKNOWLEDGMENT OF RISK
Acknowledgment of Risk
If you are a consumer booking a retreat, workshop, journey, program or service you became aware of through pomale.com, you understand and acknowledge that your travel in connection with, and participation in, such retreats, workshops, or journeys may involve risk and potential exposure to injury, including emotional injury, injury to person or property and death. You also realize and acknowledge that risk and dangers may be caused by the negligence, fault or wrongdoing of the owners, directors, employees, contractors, subcontractors, officers or agents of the provider who listed the retreat or destination profile. You also recognize and acknowledge that risk and dangers may arise from foreseeable and unforeseeable causes. You fully understand and acknowledge that the aforementioned risks, dangers and hazards are a potential in connection with your travel and recreational activities which may take place during your Wellness Adventure.
Express Assumption of Risk and Responsibility/Participation
If you are a consumer booking a Wellness Adventure with a Provider listed on pomale.com, in recognition of the inherent risk of the travels and related activities in which you are intending to engage, you confirm that you are physically and mentally capable of participating in the Wellness Adventure, that you are willingly and knowingly electing to participate in the Wellness Adventure in spite of the potential risk of danger, and you willingly and voluntarily assume full responsibility for any injury, loss or damage suffered by you or caused by you, including emotional injury or injury to person or property, whether caused in whole or in part by the negligence, fault or wrongdoing, whether expected or not, of the owners, directors, agents, officers, employees, contractors, or subcontractors of the listing Provider or of other travelers in the Wellness Adventure. You understand and acknowledge that due to the possibility of remoteness of where you may travel, emergency evacuation and/or search and rescue may be delayed or unavailable and that medical facilities and supplies may be limited and you acknowledge that it is your responsibility to assess the impact such limitations may have on any existing medical condition(s). It is your responsibility and obligation to inform a Provider at the time of your booking, of any medical or physical disability or limitation that might disable you or render you unable to perform or safely complete the Wellness Adventure or any activity on the Wellness Adventure. You further acknowledge that you are the best judge of your own conditions and limitations and that it is incumbent upon you to fully disclose the full extent of any such conditions or limitations to your Provider.
Because of the nature and uniqueness of your Wellness Adventure, we highly recommend the purchase of travel insurance to protect you against financial loss due non-refundable costs and fees due to unexpected cancellations and travel emergencies. Travel insurance also may protect you against emergencies while traveling, such as trip interruption, trip delay, missed/canceled flights, lost or stolen baggage/personal items, illness/injury and much more. Travel insurance may be purchased separately through your Provider (if the Provider offers travel insurance) or through another third party provider at your own cost and risk. Pomale.com does not make any representation, warranties or covenants with respect to travel insurance. Please review any insurance policy that you may have for your Wellness Adventure carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy.
Any controversy or claim arising out of or relating to the Site, Application, or Services, these Terms or the performance there under, including without limitation any claim related to bodily injury, property damage or death, shall be settled by binding arbitration in Boulder County, Colorado in accordance with the rules of the American Arbitration Association then existing, and judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy. This agreement to arbitrate does not waive or modify the liability release contained in this document. Such proceedings will be governed by substantive Colorado law. The dispute will be resolved by a single arbitrator who must be a lawyer admitted to practice in the courts of at least one state in the United States and have a minimum of fifteen years of experience in civil litigation. The arbitrator so described will be selected by the American Arbitration Association. Each party to the dispute shall have the right on a single occasion to veto the designation of an arbitrator so selected. The parties waive the right to rely on any state law or statute which creates an exception to enforcement of the requirement that disputes be resolved pursuant to arbitration in the manner set forth herein. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
Exclusive Governing Law and Jurisdiction
These Terms and any actions and proceeding brought hereunder shall be governed by the laws of the State of Colorado without regard to conflict of laws principles. If the right to seek arbitration is for any reason waived by both parties, or if judicial review of any arbitration decision is sought, any action or legal proceeding to enforce any provision hereof, or based on any right arising out of, these Terms shall be exclusively in the courts of the State of Colorado and all of the parties hereto hereby consent to the exclusive jurisdiction of such courts and of the appropriate appellate courts in any such action or legal proceeding and waive any objection to venue or jurisdiction in connection therewith.
Waiver of Jury Trial
In connection with any action or legal proceeding arising out of these Terms, the parties hereby specifically and knowingly waive any rights that either party might have to demand a jury trial.
Class Action Waiver
These Terms provide for the exclusive resolution of disputes through individual legal action on the traveler’s own behalf instead of through any class action. Even if the applicable law provides otherwise, you agree that any legal action against Pomale.com whatsoever shall be litigated by you individually and not as a member of any class or as part of a class action, and you expressly agree to waive any law entitling you to participate in a class action.
You agree that you are solely responsible for your interactions with any other user in connection with the Site, Application, and Services and Pomale.com not become involved in any way with disputes between you and any other user of the Site, Application or Services.
You agree that Pomale.com, in its sole discretion, may remove your profile listing if Pomale.com believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Pomale.com may also in its sole discretion and at any time discontinue providing the Site, Application or Services, or any part thereof, with or without notice. You agree that any termination of your access to the Site, Application or Services under any provision of these Terms may be effected without prior notice. Further, you agree that Pomale.com will not be liable to you or any third party for any termination of your access to the Site, Application or Services.
These Terms shall represent the entire agreement between the parties on the subject matter hereof and any and all prior agreements, discussions, representations, whether oral or in writing, are hereby superseded by the terms herein. printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms without the prior written consent of Pomale.com, but Pomale.com may assign or transfer this Terms, in whole or in part, without restriction. If any provision of these Terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. We may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Site, Application or Services.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Site, Application or Services who are from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
If you have any questions about these Terms or the Site, Application or Services, please contact Pomale.com at media@Pomale.com.