TERMS OF USE
This is a contract. It contains the terms and conditions under which you (the "User") may access and utilize the Massage Today Locator. By marking the above box that precedes the sentence, "I have read, understand and agree to the terms below (required)", and by then clicking on the box "Find a Massage Therapist", the User is entering into this contract and is agreeing to every one of the terms and conditions set forth herein. If the User does not agree with, and consent to, all of the terms and conditions, the User may not use the Massage Today Locator and must exit the Massage Therapist Locator web page.
The Massage Today Locator may be used for the sole purpose of locating a nearby health care practitioner for the rendering of personal treatment. The Massage Today Locator may not be used for any other purpose whatsoever. It is expressly forbidden to access the Massage Today Locator and/or use any of the data or information contained therein, including the names, addresses, and any other contact information, of the health care practitioners, for any reason other than the location of a practitioner for the rendering of personal treatment. Any other use constitutes a forbidden use. The forbidden uses ("Forbidden Uses") include, but are not limited to: using any portion of the mailing list to mail any material of any kind to the health care practitioner, including any marketing, advertising or solicitation materials; any kind of commercial purposes, whether for the benefit of the User or any other person or entity; using any portion of the mailing list to contact the health care practitioners for any reason other than the rendering of personal treatment; copying or harvesting any portion of the mailing list, whether through manual or automated means; using any portion of the mailing list to establish a new list or to correct and/or supplement any other list; adding any of the mailing list to any existing mailing list; examining, loaning, copying, duplicating or selling any portion of the mailing list; and using the mailing list for any reason other than the location of a practitioner for the rendering of personal treatment.
The User hereby represents and warrants that the sole and exclusive purpose for accessing and/or using the Massage Today Locator is to find a health care practitioner for the rendering of personal treatment, and for no other reason, purpose or use whatsoever. The User specifically represents and warrants that the Massage Today Locator is not being accessed for the purpose of, or to facilitate, any of the Forbidden Uses. The User certifies that he, she or it will never engage in any of the Forbidden Uses. The User acknowledges that these representations and warranties constitutes a material and essential inducement for Massage Today to grant access to the Massage Today Locator, and if the representations and warranties were not made, the User would not be granted access. The User acknowledges that Massage Today is relying on the User to make these representations and warranties honestly.
The User understands and acknowledges that the mailing list includes fictitious names and addresses, which are used by Massage Today to monitor the use of the mailing list and to detect any unauthorized use of the mailing list, including any of the Forbidden Uses. The User understands and acknowledges that if the mailing list is used to send written material to the health care practitioners, Massage Today will receive a copy of the mailing through the fictitious names, and will take all appropriate action against the User and others, including the filing of a lawsuit, regarding any Forbidden Uses. The User agrees, as a further material and essential term of this contract, to pay Massage Today a rental fee of $5 per name and address, each time that the User makes any use of the mailing list, or any portion thereof, in violation of this contract. The fee shall be immediately due and payable when the User engages in any of the Forbidden Uses.
The User specifically agrees, acknowledges and stipulates that the $5 fee set forth herein represents a good faith effort, in light of the facts and circumstances known at this time, to approximate and recover the annual cost to Massage Today to prepare, compile, update and verify the mailing list and that the $5 fee is a reasonable liquidated damage pursuant to California Civil Code section 1671. The User further agrees, acknowledges and stipulates that the mailing list is unique and requires substantial effort by Massage Today to prepare, update, verify and compile and that Massage Today shall be entitled to injunctive relief to bar and prohibit the User from any further Forbidden Uses. The User agrees that this contract shall be governed solely by the laws of the State of California and that the contract was entered into in Orange County, California. If any dispute arises out of, or is related to, this contract, the sole and exclusive venue and forum for the resolution of such dispute shall be the Superior Court of California, for the County of Orange, and the User submits to personal jurisdiction of said court. The User agrees that in the event of any controversy or dispute arising out of this contract, regardless whether a lawsuit is filed, the prevailing party or parties shall be entitled to recover from the non-prevailing party or parties reasonable expenses, including, without limitation, attorney's fees and costs actually incurred, as well as fees and costs incurred in the enforcement of any judgment and collection of any sums owed. In the event that any portion of this contract is deemed unenforceable for any reason, the User specifically agrees that all other portions shall be enforced. No change, modification, addition, or amendment to this contract shall be valid unless in writing and signed by all parties hereto.
