PANDA HOLISTIC WELLNESS INC. DBA THE HOLISTIC PANDA (the “Company,” “THP,” “us,” or “we”), owns and operates this website (“Site”). These Terms of Use (“Terms”) constitute a legally binding agreement made by and between THP and the user of this Site (personally and, if applicable, on behalf of the entity for whom you are using the Site; collectively, “you” or “User”). For certainty, "User" or "you" may mean a Client, a Practitioner, and either or both, as may be applicable in the context of the specific provision of these Terms.
PLEASE READ THE TERMS CAREFULLY AS THEY LIMIT YOUR LEGAL RIGHTS, OR THOSE RIGHTS OF THE ENTITY ON BEHALF OF WHOM YOU ARE USING THE SITE, AND CREATE LEGALLY BINDING OBLIGATIONS BETWEEN YOU AND THP. The Terms govern your use of the services we make available on this Site which are limited to THP acting as an online marketplace that connects Users with Practitioners and facilitates payment and access to scheduling between Users and Practitioners (“Services”). If you have any questions about these Terms, please contact us by email at legal@theholisticpanda.com.
BY REGISTERING AS A USER ON THE THP SITE, OR BY USING OR ACCESSING THE THP SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT REGISTER FOR, USE, OR ACCESS THE THP SITE OR THE SERVICES OFFERED ON THE THP SITE.
This document was last updated on June 11th, 2021
1.1 Eligibility. To use the Site you must be, and represent and warrant that you are, of legal age (18 years of age or older) and competence. By using the Site on behalf of any third party, you are representing to us that you are an authorized representative of that third party and that your use of the Site constitutes that third party’s acceptance of these Terms. In addition, if you have been previously prohibited from accessing the Site or the website of any of our affiliates, you are not permitted to access the Site.
1.2 Permission to Use the Site. Subject to your compliance with these Terms, we grant you a personal, limited, non-exclusive, non-transferable, and revocable right to access the Site and use the Services for your use as we intend by these Terms. THP reserves the right to monitor the Site for the purpose of determining that your usage complies with these Terms.
1.3 Prohibited Conduct. You may not use the Site or Services other than as expressly permitted by Section 1.2 above. Further, you agree, without limitation, that you will not, directly or indirectly: (a) copy, reproduce, modify, distribute, display, create derivative works of or transmit any content on the Site; (b) reverse engineer, decompile, tamper with or disassemble the technology used to provide the Service or Site (except as and only to the extent any foregoing restriction is prohibited by a non-waivable provision of applicable law); (c) interfere with or damage the Service, Site, or any underlying technology; (d) impersonate or misrepresent your identity or affiliation; (e) attempt to obtain unauthorized access to the Service or Site; (f) collect information about users of the Site or the Service without the users’ written approval except as provided herein; (g) violate, misappropriate or infringe a third party’s intellectual property or other right, or any social media platform terms; (h) violate any applicable law or the legal rights of any person or entity in any applicable jurisdiction, (i) interfere with any third party’s ability to use or enjoy, or our ability to provide, the Service or Site, (j) use, request, provide or complete any service which encourages or facilitates illegal activity of any kind whatsoever, (k) use or request any service which the Client has no legal right to use or request, (l) perform or complete any service which the Practitioner has no legal right to perform or complete, or (l) request, offer, accept, complete, or use any other services communicated by THP to Client or Practitioner, as the case may be, as unacceptable as determined at the sole discretion of THP.
1.4 Additional Terms. THP’s Privacy Policy (which describes how we collect, use and disclose your data and your consent to such collection, use, and disclosure) is incorporated into and forms a part of these Terms. THP's Privacy Policy can be accessed at www.theholisticpanda.com/privacy.
2.1 Account Registration. To access the Services through the Site, you must become a registered user of the Site (“Registered User”). To become a Registered User, you must provide us with complete and accurate information. You must promptly update such information to keep it complete and accurate. You are entirely responsible for maintaining the confidentiality of your password and account. You are entirely responsible for any and all activities that occur under your account and we may act upon any information and communication that is given on your account without verifying such information. We are not required to verify the location, actual identity or authority of a person using your account but at our discretion, we may require verification of the same. If we are not satisfied with the verification, we may remove or reclaim your username, or take other action such as denying access to your account. You may not use anyone else’s account at any time.
2.2 Security of Your Account. You agree to notify THP immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge to the fullest extent permitted by applicable law. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by THP or a third party due to someone else using your account.
2.3 No Obligation to Retain a Record of Your Account. THP has no obligation to retain a record of your account or any data or information that you may have stored for your convenience by means of your account or the Services.
3.1 Between Client and Practitioner. The services to be performed by the Practitioner ("Practitioner Services") are between a Client and a Practitioner. Upon booking confirmation, the Client agrees to purchase, and the Practitioner agrees to use the Services in accordance with the following agreements: (a) any agreement directly between Client and Practitioner, (b) these Terms, and (c) any other content uploaded to the Site by THP (collectively, the “Agreement”). You agree not to enter into any contractual provisions in conflict with these Terms. Any other provision of an Agreement in conflict with these Terms is void. Client is responsible for managing, inspecting, accepting and paying for satisfactory Practitioner Services in accordance with the Agreement in a timely manner. Client and Practitioner each covenant and agrees to act with good faith in performance of the Agreement.
3.2 Between Registered Users and THP.
3.2.1 General. THP is not a party to the dealing, contracting and fulfillment of any Practitioner Services between a Client and a Practitioner. THP has no control over and does not guarantee the quality, safety or legality of any Practitioner Services performed, advertised, the truth or accuracy of Practitioner listings, the qualifications, background, or abilities of Registered Users, the ability of Practitioners to perform Practitioner Services, the ability of Clients to pay for Practitioner Services, or that a Client or Practitioner can or will actually complete the Practitioner Services. THP is not responsible for and will not control the manner in which a Practitioner operates and is not involved in the hiring, firing, discipline or working conditions of the Practitioner. All rights and obligations for the purchase and sale of Practitioner Services are solely between a Client and a Practitioner. THP will not provide any Practitioner with any materials, equipment, or facility to complete any Practitioner Services. Clients and Practitioner must look solely to each other for enforcement and performance of all the rights and obligations arising from Agreement and any other terms, conditions, representations, or warranties associated with such dealings. Client acknowledges and agrees that THP does not supervise, direct or control Practitioner Services in any manner whatsoever. Client and Practitioner each acknowledges and agrees that the value, reputation, and goodwill of the Site depend on their performance of their covenants and agreements as set forth in their Agreement. Clients and Practitioners further agree that THP has the right to take such actions with respect to the Agreement or its accounts, including without limitation, suspension, termination, or any other legal actions, as THP in its sole discretion deems necessary to protect the value, reputation, and goodwill of the Site. PRACTITIONER AND CLIENT ASSUME ALL RISK IN CONNECTION WITH THE PRACTITIONER SERVICES BETWEEN PRACTITIONER AND CLIENT, INCLUDING THE SAFETY AND CONDUCT OF ANY PRACTITIONER OR ANY CLIENT. THP SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY WHATSOEVER FOR ANY ACTS OR OMISSIONS OF ANY KIND WHATSOEVER OF THE CLIENT OR PRACTITIONER OR BOTH, AS APPLICABLE.
3.2.2 Background Checks. THP does not employ, recommend or endorse any Practitioner or Client, nor is it responsible for the conduct of any Practitioner or Client. THP provides a tool to connect Practitioner and Clients. Client acknowledges and agrees that Client is responsible for determining if the Practitioner they hire is qualified to perform the Practitioner Services at hand and for complying with all applicable laws in connection with the Practitioner Services. Notwithstanding the foregoing, Practitioners on the site have completed background checks with THP, conducted by THP’s third party partner, Certn. Nothing contained herein shall be construed as an obligation by THP to perform background checks, or verification checks on any Registered Users. To the extent THP performs such checks on certain Registered Users, the checks are limited and should not be taken as complete, accurate, up-to-date or conclusive evidence of the accuracy of any information those users have provided or of their eligibility to use the Services or Practitioner Services.
3.2.3 Agency. These Terms and any registration for or subsequent use of this Site by any user or Registered User will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between you and THP, except and solely to the extent expressly stated.
4.1.1 Services Fees. Services Fees. THP assesses one or more of the following fees (“Service Fees”), as applicable, on payments made by Clients to Practitioners through the Site:
(a) Booking Fee. THP charges to Practitioner a Booking Fee on all scheduled sessions in an amount as listed on the site [ FAQ section for Practitioner].
(b) Fee Adjustments. Fee Adjustments. We reserve the right to change any fee that may be charged by THP at any time, at the sole discretion of THP and upon reasonable notice posted in advance on the Site. No refunds of fees already paid will be given.
4.2.1 Payment Methods. By providing Payment Method information through the Site, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under these Terms cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means. All financial transaction will be processed by our third-party payment processor, currently, Stripe Inc. and its affiliates. Please review their terms of use and privacy policies at their sites to better understand their practices. If you have any billing questions, please contact us at legal@theholisticpanda.com
(a) Taxes. Registered Users are responsible for payment and reporting of any taxes due and owing as a result of the Registered User's account information and use of the Services or Practitioner's Services. Practitioners are solely responsible for the timely and accurate entry and submission of charges for the Services they provide to Clients (including all applicable sales, use and other taxes, for which Practitioners or Clients are responsible to calculate, request payment of, collect and remit to the appropriate tax authorities) utilizing the Services. Such invoices shall reflect that the sums due are solely for the Practitioner's Services, and not for any Services of THP, and that THP is not considered to be an agent, reseller or co-vendor with Practitioner with respect to Practitioner's Services.
(b) Independent Contractors. The Practitioner, in performing the Practitioner Services, is an independent contractor for THP, and neither THP nor any of our respective officers, agents or employees will be held or construed to be partners, joint ventures, fiduciaries, employees or agents of the Practitioner as a result of providing the Services, these Terms of Use, any contracts between THP and Practitioners, or any terms of purchase between THP and Clients. The Practitioner acknowledges and agrees that the Practitioner will be responsible for determining the applicability of, and obtaining, the appropriate tax registrations, and collecting and remitting the appropriate amount of G.S.T., H.S.T., P.S.T., sales, use, excise, value-added, or any other similar taxes (the "Sales Taxes") to the appropriate authorities. The Practitioner agrees to be responsible for determining the applicability of, and making all claims, payments and filings with respect to any taxes payable by the Practitioner pursuant to applicable law with respect to, but not limited to, Practitioner's income tax (personal, corporate or otherwise), social security payments or premiums, workers’ compensation payments or premiums, or health or disability payments or premiums, all with respect to Practitioner's directors, officers, employees or contractors, any and all Sales Taxes related to Practitioner's provision of goods or services to Client, and any other tax amounts which may be levied or assessed against Practitioner which are related to or connected in any way to Practitioner's provision of the Services through the THP Site. THP shall have no responsibility or liability whatsoever for any contributions in respect of any of the foregoing. If Practitioner is required by applicable law to withhold any amounts of Practitioner's fees, as determined solely by Practitioner, THP shall be notified by Practitioner of such requirements. Practitioner shall indemnify and hold harmless THP in respect of any claims made resulting from the failure of the Practitioner to pay any amounts stipulated in this subsection when due, including but not limited to, all penalties, fines, fees, and interest, as applicable and as outlined in Section 12 (Indemnity) below. Further, Practitioner shall fully and promptly cooperate with THP as may be reasonably requested for purposes of any audit requested by any government or civil authority in relation to the matters in this subsection.
(c) Authorized Payments are Final. Your use of the Site constitutes your agreement to pay for any amounts which you authorize us to charge to your payment card. Such payments, once authorized, are final. Client hereby releases THP from any and all liability with respect to such Payment.
(d) Fraud and Error. THP reserves the right to seek reimbursement from you, and you will reimburse THP, if THP discovers a fraudulent transaction, erroneous or duplicate transaction, or if THP receives a charge back or reversal from any Payment Method for any reason. You agree to and acknowledge THP’s right to investigate any and all transactions for fraud. Further, you agree to cooperate with any reasonable requests made by THP in an effort to investigate fraud. You agree that THP has the right to obtain such reimbursement by charging the Payment Method associated with your THP account or obtaining reimbursement from you by any other lawful means, including using a third-party collection agency. Failure to pay for reimbursements of a charge back or a reversal of payment is cause for termination of your THP account, without limitation of any other available rights or remedies.
(e) Currency. All invoices and Payments operate in Canadian Dollars.
We understand unexpected circumstances happen and Users or Practitioners may have to cancel a confirmed session from time to time. As cancellations disrupt both Users’ and Practitioners' plans and impact confidence in the THP community, the following cancellation policies will apply:
(a) Practitioners. All Practitioners must give a cancellation notice to THP at least 24 hours' notice prior to the start time of a confirmed session with a User. Failure to cancel 24 hours prior to the start time of a confirmed session with a User will result in a cancellation fee against Practitioner of 35% of the price of the confirmed session. If a confirmed session is cancelled due to causes wholly beyond the reasonable control of the Practitioner, including epidemic, pandemic or quarantine related to the same, acts of government or civil authorities, any act of God, fire, flood, riot, war (whether or not declared), or terrorism, the applicable cancellation fee may be waived at the sole discretion of THP and shall constitute an one-time exception only. Practitioner shall provide, upon request of THP, reasonable proof of the event causing the cancellation for which Practitioner seeks waiver of the cancellation fee. For confirmed sessions cancelled by a User, the cancellation policy in subsection 4.3(b) shall apply; however, THP shall have the right and sole discretion to waive or refund any cancellation fee for any User without consultation or notice to the Practitioner. In the event THP or Practitioner, as applicable and as set out below, waives a User cancellation fee, Practitioner shall receive no compensation or fees of any type for such cancelled session.
(b) Users. A User cancelling a confirmed session less than 24 hours prior to the start time of such confirmed session shall be charged a cancellation fee equal to 100% of the price of the confirmed session. If a confirmed session is cancelled by User due to causes wholly beyond the reasonable control of the Practitioner, including epidemic, pandemic or quarantine related to the same, acts of government or civil authorities, any act of God, fire, flood, riot, war (whether or not declared), or terrorism, the applicable cancellation fee may be waived at the sole discretion of THP and shall constitute an one-time exception only. User shall provide to THP reasonable proof of the event causing the cancellation for which User seeks waiver of the cancellation fee. If THP determines that a cancellation fee shall not be waived, the User may contact the Practitioner to request a refund of the cancellation fee. If the Practitioner agrees, at his/her sole discretion, to User's request for a refund, THP shall issue a refund. In such a case, Practitioner understands that THPs refund of the cancellation fee per Practitioner's direct agreement with User means Practitioner shall receive no compensation or fees of any type for the cancelled session. If the Practitioner does not agree to User's request for a refund of the cancellation fee, there shall be no refund to User. For certainty, THP shall have no obligation under any circumstance to refund or waive a cancellation fee other than as set out in these terms of use. Any cancellation fee received by THP from a User shall be paid to Practitioner in the same manner as a fee paid for a confirmed session actually attended by the User.
5.1 Intellectual Property Rights. All content on the Site, or otherwise made available via the Site, including the text, notes, graphics, photos, sounds, music, videos, interactivities and the like (“Content”), the trademarks, service marks and logos contained therein (“Marks”), the design of the Site and/or Services (“Site Design”), and all software and other technology used to provide the Site and/or Services (“Technology”), are owned by or licensed to THP and/or its affiliates. Content is provided to you “as is” for your information and personal use only and may not be used, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever. We reserve all rights not expressly granted in and to the Site, Content, Marks, Site Design and Technology. Using the Site and/or Services does not give you any ownership of or right in or to any Content, Marks, Site Design or Technology.
5.2 Third-party Content. The Site may contain information and content provided by third parties. We have no obligation to monitor, we do not endorse, and we are not liable for any third-party content. In addition, the Site may contain links to third-party websites. THP is not responsible for the content on any linked site or any link contained in a linked site. We do not endorse or accept any responsibility for the content on such third-party sites.
5.3 Third-party Services. Third parties may offer their services directly to you through the Site. In such case, you may be required to agree to the third party’s terms of service and/or privacy policy to use the service. THP will not be liable in any way for the acts or omissions of such third party, the terms of service or privacy policy of the third party or its failure to adhere to its terms of service or privacy policy, or any loss, damages, liability or expenses (including attorneys’ fees) that you may incur arising from or related to such third party’s services or products.
Any text, photographs, artwork, ideas, questions, reviews, comments, suggestions or other content that you submit or post to the Site or otherwise provide to us are referred to as “User Content”. The following terms apply to User Content:
6.1 License to THP. By sharing, submitting or uploading any User Content, you grant THP a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sublicensable and transferable license to use, copy, distribute, display, publish, perform, sell, transmit, adapt, translate, modify, reverse-engineer, disassemble and create derivative works from your User Content in any manner existing now or created in the future. Subject to the license above, you retain ownership of User Content.
6.2 Waiver of Moral Rights. You irrevocably waive and agree not to assert any rights, including any “moral rights,” that you have to prevent us from exploiting the rights granted in Section 7.1.
6.3 Your Responsibility for User Content. You acknowledge and agree that you are solely responsible for all the User Content that you make available through the Site. Accordingly, you represent and warrant that: (1) you have all rights, licenses, consents and releases necessary to grant THP the required rights to disseminate any User Content and (2) neither your User Content nor your posting, uploading, publication, submission or transmittal of this User Content or THP’s use of your uploaded User Content (or any portion thereof) on, through or by the means of the Site, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights or rights of publicity or privacy or result in the violation of any applicable law or regulation.
6.4 No Obligations Regarding User Content. No Obligations Regarding User Content. We will not have any obligation to hold any User Content in confidence or compensate you or anyone else for its use. We have the right to remove or edit any User Content for any reason or no reason at all.
7.1 Infringement Notification. THP respects the rights of others and we expect users of our Site and Services to do the same. These Terms prohibit the infringement of the copyrights of others, and it is also our policy that we may remove, suspend, terminate access, or take other appropriate action against repeat offenders. We may also remove content that in our sole discretion appears to infringe the intellectual property rights of others.
7.2 How to File an Infringement Notification. If you have evidence, know, or have a good faith belief that content residing on or accessible through our Site infringes a copyright which you own or for which you are a designated agent, please send a notice of infringement to legal@theholisticpanda.com
and with the information that sets forth the items specified below:
Identify the copyrighted work claimed to have been infringed. If multiple copyrighted works are covered by a single notification, provide a representative list of such works.
Identify the material that is claimed to be infringing or to be the subject of infringing activity. Include information reasonably sufficient to permit THP to locate the material. Please provide a URL and screenshots for each item. Include the specific asset(s) or page(s) that you claim to be infringing. Say “entire work” ONLY if all assets/pages in a collection/document are infringing.
Include details of your claim to the material, or your relationship to the material’s copyright holder.
Provide your full name, address, and telephone number should we need to clarify your claim.
Provide a working email address where we can contact you to confirm your claim.
If true, include the following statement: “I have a good faith belief that use of the copyrighted materials described above as the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law.”
If true, include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the copyright owner to make this complaint.”
Sign the document, physically or electronically.
8.1 USE OF SITE AND SERVICES ARE AT YOUR SOLE RISK AND PROVIDED STRICTLY ON AN "AS-IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND WHATSOEVER. THP EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, THE SERVICES, AND USER CONTENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, PLEASE CONTACT 9-1-1. THP DOES NOT PROVIDE ADVICE, DIAGNOSIS OR TREATMENT OR ENGAGE IN ANY CONDUCT WHATSOEVER WHICH REQUIRES A PROFESSIONAL LICENSE IN ACCORDANCE WITH APPLICABLE LAW. AS SUCH, NOTHING CONTAINED ON THE SITE OR SERVICES OFFERED BY THP SHOULD BE CONSTRUED AS ANY FORM OF SUCH MEDICAL ADVICE, DIAGNOSIS, TREATMENT, AND MAY NOT BE SUBSTITUTED FOR CONSULTATION WITH A QUALIFIED AND LICENSED, IF APPLICABLE, PROFESSIONAL. YOU ARE URGED AND ADVISED TO SEEK THE ADVICE OF A HEALTHCARE PROFESSIONAL FOR ANY MEDICAL ADVICE, DIAGNOSIS, TREATMENT, AND ANSWERS TO YOUR PERSONAL QUESTIONS PRIOR TO ENGAGEMENT OF ANY PRACTITIONER’S SERVICES. PRACTITIONER’S SERVICES MAY NOT BE RIGHT FOR EVERY PERSON. FOR CERTAINTY, THP CANNOT AND DOES NOT WARRANT, GUARANTEE OR ASSUME ANY RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY SPECIFIC RESULTS FROM USE OF PRACTITIONER'S SERVICES, THE AVAILABILITY, PROFESSIONALISM, HONESTY, LICENSES, CERTIFICATES, QUALIFICATIONS, INSURANCE, SKILLS, ABILITY OR COMPETENCE OF A PRACTITIONER, OR MAKE ANY WARRANTY REGARDING THE ACCURACY, QUALITY OR COMPLETENESS OF ANY PRACTITIONER SERVICE PROVIDED VIA OR IN CONNECTION WITH THE USE OF THE SITE OR SERVICES.
8.2 THIRD-PARTY CONTENT AND WEBSITES. THP WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY CONTENT OR SERVICES ON THE SITE, ANY LINKS TO THIRD-PARTY WEBSITES OR ANY THIRD-PARTY WEBSITES. THP DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY SERVICE OR PRODUCT ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SITE, AND THP WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CLIENT AND PRACTITIONERS SERVICES. THP WILL NOT BE LIABLE FOR THE OFFENSIVE, ILLEGAL, HARMFUL CONDUCT OF ANY THIRD PARTY. MATERIAL ON THE SITE MAY INCLUDE HYPERLINKS TO INFORMATION CREATED AND MAINTAINED BY OTHER PUBLIC AND PRIVATE ORGANIZATIONS AND PERSONS. THP PROVIDES THESE LINKS SOLELY FOR OUR USERS’ INFORMATION AND CONVENIENCE. THESE REFERENCES ARE NOT INTENDED TO REFLECT THE OPINION OF THP, OR ITS OFFICERS OR EMPLOYEES CONCERNING THE SIGNIFICANCE, PRIORITY, OR IMPORTANCE TO BE GIVEN THE REFERENCED ENTITY, PRODUCT, SERVICE, OR ORGANIZATION. SUCH REFERENCES ARE NOT AN OFFICIAL OR PERSONAL ENDORSEMENT OF ANY PRODUCT, PERSON, OR SERVICE, AND MAY NOT BE QUOTED OR REPRODUCED IN A WAY THAT IMPLIES THP’S ENDORSEMENT OR APPROVAL OF ANY PRODUCT, PERSON, OR SERVICE. WHEN YOU SELECT A LINK TO AN OUTSIDE WEBSITE, YOU ARE LEAVING THE THP DOMAIN AND ARE SUBJECT TO THE PRIVACY AND SECURITY POLICIES OF THE OWNERS/SPONSORS OF THE OUTSIDE WEBSITE. THP DOES NOT CONTROL NOR GUARANTEE THE ACCURACY, RELEVANCE, TIMELINESS, OR COMPLETENESS OF INFORMATION CONTAINED ON AN EXTERNALLY LINKED WEBSITE.
9.1 Data. You are responsible for the creation, storage, and backup of your business records. These Terms and any registration for or subsequent use of this Site or the Services will not be construed as creating any responsibility on THP’s part to store, backup, retain, or grant access to any business information or business data for any period.
10.1 Term. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion and without any liability, modify, suspend or discontinue any aspect of the Site, temporarily or permanently, at any time and without prior notice.
10.2 Modification and Termination of Site and Services. We may terminate the Site or the Services, your access to the Services, in part or as a whole, at any time, for any or no reason, and without notice or liability to you. These terms were last revised as set out at the top of these Terms.
10.3 Suspension or Termination. We may deny you access to all or part of the Site at any time for any reason (including if you violate these Terms, as determined in our sole and absolute discretion) or no reason at all.
10.4 Effect of Termination. If you terminate your account, you will remain liable under these Terms for any purchase made prior to termination. If we terminate your right to access the Site, these Terms will terminate and all rights you have to access the Site will immediately terminate. The provisions that by their nature should survive shall survive.
You and THP agree that any dispute that has arisen or may arise between us relating in any way to your use of or access to the Services or Site, any breach, enforcement, or termination of these Terms, or otherwise relating to THP in any way (collectively, “Covered Matters”) will be resolved in accordance with the provisions set forth in this Section 11.
11.1 Informal Resolution. If you have any dispute with us, you agree that you will contact us at legal@theholisticpanda.com, and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account).Following the date of such notice to THP, for a period of not more than sixty (60) days, we will attempt to reach an amicable resolution of any issue with you.
11.2 Arbitration. All disputes which are not resolved in accordance with Section 11.1 above shall be settled exclusively by arbitration in accordance with the following. If you and THP fail to resolve the dispute through the negotiations set out in Section 11.1, the alleged dispute shall be submitted to binding arbitration, which arbitration shall be governed by the Arbitration Act, SBC 2020, c. 2 (British Columbia) and conducted in accordance with the National Arbitration Rules of the ADR Institute of Canada before an arbitral tribunal consisting of three (3) arbitrators. The arbitration shall be conducted in the English language. Arbitration shall be the sole and exclusive remedy with respect to any such dispute. The arbitral tribunal shall have no power to add to, detract from, or alter the Terms in any way. Pending final decision by the arbitral tribunal, there shall be no action taken by either party to the controversy. All costs and expenses incidental to and arising out of the arbitration shall be borne by the losing party, including reasonable legal fees. The award rendered shall be final and conclusive and judgment on the award may be entered in any court having competent jurisdiction thereof. The place of arbitration shall be Vancouver, B.C. The arbitral tribunal shall not be authorized to decide any dispute, controversy or Claim ex aequo et bono, but shall strictly apply the laws set out in this Section. The parties agree to maintain confidentiality as to all aspects of the arbitration, including its existence and results.
11.3 These Terms shall be governed and construed in accordance with the laws of British Columbia and federal laws of Canada, as applicable, without regard for its conflicts of laws provisions and excluding any laws that implement the United Nations Convention on Contracts for the International Sale of Goods or the United States Uniform Commercial Code, and excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws.
11.4 For certainty, disputes between Client and Practitioner with respect to Practitioner's Services are not subject to this Section and shall be dealt with solely between Client and Practitioner and subject to the Agreement made between Client and Practitioner, if any. THP shall have no obligations, liability or responsibility whatsoever with respect to any disputes between Client and Practitioner regarding Practitioner Services.
You will defend, indemnify and hold harmless THP from and against any and all claims, actions, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees on a solicitor-client basis, and costs, or fine of any kind or amount whatsoever ("Claims") which THP may suffer, sustain, pay or incur and which arises from, is connected with, or relates in any way to your use of or access to the Site, its content or materials, including User Content, information submitted to THP to become Registered User or to become a Practitioner, use of the Services, use of the Practitioner's Services, providing Practitioner Services, or your negligence, misconduct, or breach of these Terms. Notwithstanding the foregoing, THP retains the right to participate in the defense of and settlement negotiations relating to any third party claim, complaint, demand, action, suit or proceeding with counsel of its own selection at its cost and expense.
13.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, THP'S LIABILITY TO A USER OR PRACTITIONER, AS APPLICABLE, ARISING FROM, IN CONNECTION WITH, OR RELATING TO USER OR PROVIDER'S USE OF OR ACCESS TO THE SITE, ITS CONTENT OR MATERIALS, THE SERVICES, PRACTITIONER'S SERVICES, OR USER CONTENT, FOR ANY REASON WHATSOEVER, INCLUDING THP'S NEGLIGENCE OR WILFUL MISCONDUCT, SHALL BE LIMITED TO CDN $100.
13.2 IN NO EVENT SHALL THP OR USER BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, AGGRAVATED, EXEMPLARY, OR CONTINGENT DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOSS OF OR LOSS OF USE OF REVENUE OR INCOME, PROFIT OR BUSINESS, ALL OF THE FOREGOING ANTICIPATED OR OTHERWISE, COSTS OF CAPITAL, OR ECONOMIC LOSS OF ANY TYPE WHATSOEVER, REGARDLESS OF WHETHER THE PARTIES WERE ADVISED OF SUCH POSSIBILITY IN ADVANCE. FURTHER, IN NO EVENT SHALL THP OR PRACTITIONER BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, AGGRAVATED, EXEMPLARY, OR CONTINGENT DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOSS OF OR LOSS OF USE OF REVENUE OR INCOME, PROFIT OR BUSINESS, ALL OF THE FOREGOING ANTICIPATED OR OTHERWISE, COSTS OF CAPITAL, OR ECONOMIC LOSS OF ANY TYPE WHATSOEVER, REGARDLESS OF WHETHER THE PARTIES WERE ADVISED OF SUCH POSSIBILITY IN ADVANCE.
13.3 THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION, AND THE INDEMNITIES IN SECTION 13, SHALL APPLY TO ALL CLAIMS WHETHER SUCH CLAIMS ARISE AT LAW, IN CONTRACT, TORT, EQUITY OR OTHERWISE AND WITHOUT REGARD TO THE CAUSE THEREOF, INCLUDING THE NEGLIGENCE (WHETHER SOLE, CONTRIBUTORY, CONCURRENT, ORDINARY, ACTIVE, PASSIVE OR OTHERWISE), FAULT, WILFUL ACT OR OMISSION OF THP.
13.4 USER AND PRACTITIONER ACKNOWLEDGES THAT THESE TERMS INCLUDES PROVISIONS FOR THE LIMITATION OF LIABILITY FOR THP AND INDEMNIFICATION OF THP AGAINST THE CONSEQUENCES OF THEIR OWN NEGLIGENCE OR FAULT, AND AGREES THAT THIS AGREEMENT COMPLIES WITH THE EXPRESS NEGLIGENCE RULE, ARE CONSPICUOUS OR AFFORD FAIR NOTICE. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY THE LAW APPLICABLE IN SUCH JURISDICTION.
13.5 THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION ARE THE FUNDAMENTAL ELEMENT OF THE BASIS OF THE SERVICES AND PRICE AGREED BETWEEN THP AND THE USER, OR THP AND PRACTITIONER, AS APPLICABLE.
14.1 If any provision in these Terms is declared wholly or partially illegal or unenforceable, the provision will become void only to the extent of the illegality or unenforceability, and the remainder of these Terms, including the portion of the provision not declared illegal or unenforceable, shall continue in full force and effect.
14.2 No condoning, excusing or overlooking by THP of any default, breach or non-observance by User at any time or times in respect of any covenants, provisos, or conditions of these Terms shall operate as a waiver of THP’s rights under these Terms in respect of any continuing or subsequent default, breach or non-observance, so as to defeat in any way the rights of THP in respect of any such continuing or subsequent default or breach and no waiver shall be inferred from or implied by anything done or omitted by THP, save only an express waiver in writing.
