EMBRACE YOU – TERMS AND CONDITIONS OF PURCHASE
Last Updated March 2020
The Body Image Movement, registered in Australia, ABN 73 616 289 484.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. PRICES AND PAYMENT TERMS
The prices for the Products shall be as stated on the Order. Upon purchase, you will receive a username and password for each subscription you purchase in the Order. For example, if you purchase only one subscription, you will receive only one username and password, and only one person may access and use the Product.
2. REFUND POLICY
We do not offer refunds on Digital Products.
3. SATISFACTION GUARANTEE
We take your participation and satisfaction in the Embrace You Program very seriously. If you are not satisfied with the Program after 30 days you can request your money back by emailing email@example.com. You can participate in the Program for up to 30 days. If you do all the assigned work and don’t get value, we’ll happily refund the money you’ve paid us under this Agreement less any external fees and the RRP of any promotional products or services offered at the time of purchase subject to the following conditions:
3.1. Deadline to Apply for Refund. To be eligible for a refund, you must submit your request no sooner than 30 days following the date that you commenced the Embrace You program and no later than 60 days following your date of registration for the Program. The deadline exists because if you sign up for Embrace You, we want you to complete the program. Make sure this is the right investment for you, as the refund will not be granted for change of mind purchases.
3.2. Completed Course Work. We’ll ask for your completed course work (to make sure you gave it a go) and ask what didn’t work for you (so we can learn and improve).
3.3. Company Discretion. After you submit your materials, all refunds are within the Body Image Movement’s sole discretion as to whether to grant or deny the refund request. Please do not enrol in Embrace You if you just want to “check it out.” We put an extraordinary amount of time and effort into this Program, and we expect you to do the same. In the event that we do issue a refund, your access to Embrace You will be revoked.
4. INTELLECTUAL PROPERTY
You agree that the Products contain proprietary information and materials, such as videos, coursework, lesson plans, training modules, photographs, software, text, graphics, images, and sound recordings (collectively, “Product Content”) that are owned by The Body Image Movement and/or its licensors and are protected by copyright, trademark, and other applicable intellectual property laws. Duplicating, sharing, or uploading any Product Content, including to any sharing or social media sites, is considered stealing, and The Body Image Movement will prosecute such misconduct to the fullest extent permitted by law. The Body Image Movement provides you with the Products solely for your personal, non-commercial use, and you agree that you will not use any of the Product Content in any way whatsoever except for use in compliance with this Agreement. You will not use any Product Content in a manner that constitutes an infringement of The Body Image Movement’s rights or that has not been authorised by The Body Image Movement. More specifically, unless explicitly authorised in this Agreement, you may not modify, copy, reproduce, republish, upload, post, transmit, rent, lease, loan, translate, sell, create derivative works of, exploit, or distribute in any manner or medium (including by email or other electronic means) any Product Content. You may, however, from time to time, download and/or print one copy of individual pages of the Product Content for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices. To be clear: please be aware that you may not create derivative works, resource guides, marketing or business materials, source material, intellectual property, websites, blogs, web content, or any other works that reference The Body Image Movement, Taryn Brumfitt, the Products, or the Product Content, or infringe on any of The Body Image Movement’s or its licensors’ intellectual property in any way. Any material that you create should be focused on your business, not ours. All copyrights, trademarks, and other intellectual property rights in and to the Products and the Product Content (including the compilation of content, postings, links to other internet resources, and descriptions of those resources) are owned by The Body Image Movement and/or its licensors, which reserve all of their rights, title, and interests in law and equity.
THE USE OF THE PRODUCTS, EXCEPT AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF THE BODY IMAGE MOVEMENT AND/OR ITS LICENSORS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT AND OTHER INFRINGEMENT.
The trademarks, service marks, and logos of The Body Image Movement (the “Body Image Movement Trademarks”) used and displayed in the Products are registered and unregistered trademarks or service marks of The Body Image Movement. Other company, product, and service names used and displayed in the Products may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with The Body Image Movement Trademarks, the “Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of The Body Image Movement’s Trademarks inures to our benefit.
5. THIRD-PARTY MATERIALS AND WEBSITES
The Body Image Movement may provide links to third-party materials and websites as a convenience to you. These third-party materials and websites are not part of the Products, and they may be either withdrawn or terminated from the Products at any time without notice to you and without any liability to The Body Image Movement. You agree that you will be responsible for all payment and other obligations associated with your use of any and all third-party materials and websites. In addition, you agree that The Body Image Movement is not responsible for examining or evaluating the content or accuracy of any third-party materials and websites, and The Body Image Movement does not warrant and will not have any liability or responsibility for any third-party materials, websites, products, or services. You further agree that you will not use any third-party materials and websites in a manner that would infringe or violate the rights of any other party and that The Body Image Movement will not be liable for your improper use of third-party materials and websites.
THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE IN CONNECTION WITH THE PRODUCTS. WHEN ADDRESSING FINANCIAL MATTERS IN ANY OF OUR PRODUCTS, WEBSITES, VIDEOS, NEWSLETTERS, PROGRAMS, OR OTHER CONTENT, WE’VE TAKEN REASONABLE EFFORT TO ENSURE THAT WE ACCURATELY REPRESENT OUR PROGRAMS AND THEIR ABILITY TO HELP IMPROVE YOUR LIFE. HOWEVER, THE BODY IMAGE MOVEMENT DOES NOT GUARANTEE THAT YOU WILL GET ANY RESULTS USING ANY OF OUR PRODUCTS, IDEAS, TOOLS, STRATEGIES, OR RECOMMENDATIONS, AND NOTHING ON OUR WEBSITES OR IN OUR PRODUCTS IS A PROMISE OR GUARANTEE TO YOU. YOU EXPRESSLY AGREE THAT YOUR USE OR INABILITY TO USE THE PRODUCTS IS AT YOUR SOLE RISK. BY PURCHASING A SUBSCRIPTION TO THE PRODUCTS, YOU ACCEPT, AGREE, AND UNDERSTAND THAT YOU ARE FULLY RESPONSIBLE FOR YOUR PROGRESS AND RESULTS FROM YOUR PARTICIPATION AND THAT WE OFFER NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES (EXPRESSED OR IMPLIED) REGARDING YOUR HEALTH, HAPPINESS OR RESULTS OF ANY KIND. YOU ALONE ARE RESPONSIBLE FOR YOUR ACTIONS, WHICH ARE DEPENDENT ON PERSONAL FACTORS INCLUDING, BUT NOT NECESSARILY LIMITED TO, YOUR KNOWLEDGE, ABILITY AND DEDICATION, TO NAME JUST A FEW. YOU ALSO UNDERSTAND THAT ANY TESTIMONIALS OR ENDORSEMENTS BY OUR CUSTOMERS OR AUDIENCE REPRESENTED IN OUR PRODUCTS, PROGRAMS, WEBSITES, CONTENT, LANDING PAGES, SALES PAGES, OR OFFERINGS HAVE NOT BEEN SCIENTIFICALLY EVALUATED BY US, AND THE RESULTS EXPERIENCED BY INDIVIDUALS MAY VARY SIGNIFICANTLY. ANY STATEMENTS OUTLINED IN OUR PRODUCTS, WEBSITES, PROGRAMS, CONTENT, AND OFFERINGS ARE SIMPLY OUR OPINIONS AND THUS ARE NOT GUARANTEES OR PROMISES OF ACTUAL PERFORMANCE. WE OFFER NO PROFESSIONAL, LEGAL, MEDICAL, PSYCHOLOGICAL, OR FINANCIAL ADVICE.
7. ADDITIONAL TERMS AND CONDITIONS
A) GOVERNING LAW. You and The Body Image Movement have entered into this Agreement in the State of South Australia and agree that the validity, interpretation, and legal effect of this Agreement, as well as all disputes among you and The Body Image Movement, shall be determined in accordance with the laws of the State of South Australia, Australia, without regard to conflicts of law principles that would dictate the application of the law of a different jurisdiction.
B) LIMITATION OF LIABILITY. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) THE BODY IMAGE MOVEMENT, ITS OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, CONTRACTORS, LICENSORS, SUCCESSORS, OR ASSIGNS SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR OUT OF YOUR USE OF THE PRODUCTS OR PURCHASES HEREUNDER; AND (II) YOUR DIRECT DAMAGES SHALL BE LIMITED TO THE FEES YOU PAID FOR THE APPLICABLE PRODUCT. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. C) BINDING EFFECT.
This Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators, and permitted assigns of the parties. We may assign this Agreement at any time without notice to you. You have no right to assign this Agreement, by operation of law or otherwise. The Products are non-transferable.
D) TERMINATION. The Body Image Movement is committed to providing all customers with a positive experience. If you fail, or The Body Image Movement suspects that you have failed, to comply with any of the provisions of this Agreement, The Body Image Movement, in its sole discretion and on notice to you, may: (a) limit, suspend, or terminate your access to the Products and/or you participation in program without refund; and/or (b) terminate this Agreement. Your obligations to The Body Image Movement under this Agreement will survive expiration or termination of this Agreement for any reason.
E) CHANGES. The Body Image Movement reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your access and use of the Products. Such modifications and additional terms and conditions shall be effective immediately and incorporated into this Agreement. Your continued use of the Products will be deemed your acceptance thereof. The changes may be listed in an area accessible to you on The Body Image Movement’s website or you may be notified by either e-mail or postal mail.
F) INDEMNIFICATION. By purchasing a subscription to the Products and/or using the Products, you, to the extent permitted by applicable laws, agree to defend, indemnify, and hold harmless The Body Image Movement, its owners, officers, directors, employees, affiliates, contractors, licensors, successors, or assigns from and against any and all liabilities and expense whatsoever — including without limitation, claims, damages, judgments, awards, settlements, investigations, costs, attorneys’ fees, and disbursements — which any of them may incur or become obligated to pay arising out of or resulting from your breach of this Agreement and/or your misuse of Products. You recognise and agree that all of The Body Image Movement’s owners, officers, directors, employees, shareholders, trustees, affiliates, and successors shall not be held personally responsible or liable for any actions or representations of The Body Image Movement.
G) BINDING ARBITRATION. In the event of a dispute arising under or relating to this Agreement, the Content, or the Websites (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the International Arbitration Act. Any election to arbitrate, at any time, shall be final and binding on the other party.
IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION.
All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the International Arbitration Act. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in Australia. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration.
H) CLASS ACTION WAIVER. You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilise class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
I) EQUITABLE RELIEF. You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts of South Australia for purposes of any such action by us.
J) ENTIRE AGREEMENT. This Agreement constitutes the entire understanding and agreement of the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties.
K) COMPLIANCE WITH LAW. The parties shall comply with all applicable laws in performing this agreement. Whenever there is any conflict between any provision of this Agreement and any law, the law shall prevail.
L) NO WAIVER. The failure of any party to insist on the performance of any obligation hereunder shall not be deemed to be a waiver of such obligation. Waiver of any breach of any provision shall not be deemed to be a waiver of any other breach of such provision or any other provision.
8. –WAIVER OF LIABILITY AGREEMENT
The Embrace You Online Course consists of 4-weeks of online videos and workbooks. Facilitated by Taryn Brumfitt, Founder of the Body Image Movement. By participating in the Program, you agree to the following terms and conditions and waiver of liability:
A) Nature of the Program
1. The information presented during the Episodes, including ideas, suggestions, techniques, trainings, exercises, activities, downloads, instructions, and other materials (collectively the “Materials”), is educational in nature and is provided only as general information and is not medical or psychological advice.
2. You understand the program focuses solely on personal growth and spiritual transformation and is not to be considered treatment for any physical, emotional, or mental disorder. You agree to consult with your health care providers should you require medical, emotional, or psychological treatment. Further you agree to take full responsibility for your self-care during the program and after.
3. Any stories or testimonials presented before or during the Course do not constitute a warranty or guarantee regarding your experience during or after the Course. Further, you understand that The Body Image Movement makes no warranty or guarantee that you will experience any particular transformation during or after the program, nor does it make any representation that you will experience any particular outcome on an issue.
4. You acknowledge and agree that anything and everything discussed with Taryn Brumfitt, or any Course participant is merely a perspective for you to consider. You further understand that your participation in the Course is not intended to create nor does it establish a client-practitioner relationship or any other type of therapeutic or professional relationship between you and the Embrace You Course or Facilitators.
B) Waiver of Liability
1. You represent that you are competent and able to understand the nature and consequences of participating in the Course, and that you are an adult under the laws of the State of your residence. If you are a minor, your parent or legal guardian hereby represents that you are competent and able to understand the nature and consequences of participating in the Course.
2. You understand that your participation in the Course is strictly voluntary, at your own risk, and that you freely choose to participate. Since the Course is experiential you agree to assume and accept full and complete responsibility for any known and unknown risks associated with your participation in the Course, including any physical injury, psychological or emotional effects, death, loss, or property damage.
3. You agree to release the Body Image Movement, Taryn Brumfitt and employees from any liability resulting from your participation in the Course. Specifically, you and your heirs agree to fully release, indemnify, hold harmless and defend the Embrace You Course, Taryn Brumfitt and employees from any and all claims or liability, and for any damage or injury, including but not limited to, financial, personal, emotional, psychological, medical, or otherwise, which you may incur arising at any time as a result of your voluntary decision to participate in the Course.
4. You further agree to hold harmless the Body Image Movement, Taryn Brumfitt and employees from any damages or costs, including Court and attorney’s fees, which may be incurred due to your participation in the Course.
5. Any and all matters in dispute between the parties to this Agreement, whether arising from or relating to the Agreement itself, or arising from alleged extra-contractual facts prior to, during, or subsequent to the Agreement, including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or violation of the contract, shall be governed by, construed, and enforced in accordance with the laws of State of South Australia, without regard to conflicts of law doctrines and regardless of the legal theory upon which such matter is asserted. If any portion of this Agreement is held to be invalid, it is agreed that the balance of the Agreement shall continue in full force and affect. This Agreement shall be binding upon you and your heirs, family, legal representative, successors, and assigns.
6. This Agreement constitutes the entire and final agreement between the parties and supersedes any prior oral or written agreements, discussions or understandings. By finalising your purchase of the Embrace You Online Course, you acknowledge that you have carefully and completely read and fully understand all aspects of this Agreement and you agree to all of the terms and conditions stated herein.