This is a binding agreement between you (herein referred to as “Visitor and/or Registered User”) and Amber Krzys dba bodyheart (herein referred to as “us” “Company,” “Consultant” or “Coach”) (each party collectively as “Parties”), in consideration of the mutual promises made herein.
We invite you to access and use our Websites, including, without limitation, amberkrzys.com, fierceloving.com, bodyheart.com, bodyheart.org, rockyourbodychallenge.com, lettinglifeloveyou.com, coachingimmersionadventure.com, and nurturingyournumbers.com (the “Websites”).
Visitor and/or Registered User understands and acknowledges that Coach, is not an employee, agent, lawyer, doctor, manager, therapist, business manager, registered dietician, nutritionist, financial analyst, psychotherapist or accountant. Visitor and/or Registered User understands their participation in any program will not treat or diagnose any disease, illness, or ailment and Coach has no obligation or ability provide such services. If Visitor and/or Registered User should experience any such issues they should see their registered physician or other practitioner as determined by their own judgment.
Visitor and/or Registered User understands that Consultant has not promised, shall not be obligated to and will not; act as a therapist providing psychoanalysis, psychological counseling or behavioral therapy. Visitor and/or Registered User understands that a coaching relationship does not exist between the parties unless the Parties engage in a specific agreement for such.
Visitor. Visitor, as the term implies, are people who do not register with us, but want to explore the Websites. No login is required for Visitors. Visitors can: (i) view all publicly-available content on the Websites; and (ii) email us.
Registered Users. Registered Users can do all the things that Visitors can do, and: (i) purchase products and services through one of our Websites; (ii) access exclusive content available only to Registered Users; (iii) create, access, manage, and update their own personal accounts on the Websites; (iv) post comments and other content on the Websites; (v) sign up for our various programs; and (vi) sign up for alerts and other notifications;
The Company respects Visitor and/or Registered User’s privacy and insists that Visitor and/or Registered User respects the Company’s and other program participants (herein referred to as “Participants”). Thus, consider this a mutual non-disclosure agreement. Any Confidential Information shared by other Participants or any representative of the Company is confidential, Proprietary, and belongs solely and exclusively to the other Participant who discloses it and the Company. Visitor and/or Registered Users agree not to disclose, reveal or make use of any Confidential Information or any transactions, during discussions, during group coaching calls, from the Website or any forum or otherwise.
Visitor and/or Registered User agrees not to use such Confidential Information in any manner other than in discussion with the Company or with other Participants during a program. Confidential Information includes, but is not limited to, information disclosed on this Website and/or in connection with this Agreement, and shall not include information rightfully obtained from a third party.
Notwithstanding anything to the contrary herein, Visitor and/or Registered User understands and agrees that Company may record any and all calls of Visitor and/or Registered User or other Participants and Company may utilize any such audio recordings taken during said calls in connection with its business operations (but for clarity, Company will never use Visitor and/or Registered User’s full name in such recording without Visitor and/or Registered User’s prior permission).
Further, by visiting this site and/or opting into a program you agree that if you violate or display any likelihood of violating this session the Company and/or the other Participant(s) will be entitled to injunctive relief to prohibit any such violations to protect against the harm of such violations.
NON-DISCLOSURE OF COACHING MATERIALS
Material given to Visitor and/or Registered User in the course of Visitor and/or Registered User’s searching the Website and/or participation in the program is proprietary, copyrighted and/or developed specifically for the Company. Visitor and/or Registered User agrees that such proprietary material is the sole property of the Company and is for Visitor and/or Registered User’s own personal use as part of the working with the Company. Visitor and/or Registered User agrees not to make use of any materials for commercial purposes in any manner. Any disclosure to a third party, copying or republishing any portion of this Website and/or materials provided or its contents is strictly prohibited and constitutes infringement. Coach reserves all rights including injunctive relief against Visitor and/or Registered User if Company’s rights hereunder are violated.
NO TRANSFER OF INTELLECTUAL PROPERTY
The Website or any material shared with a Visitor/Registered user may be copyrighted and original materials that have been provided to Visitor and/or Registered User are for Visitor and/or Registered User’s individual use only and a single-user license. Visitor and/or Registered User is not authorized to use any of Company’s intellectual property for Visitor and/or Registered User’s business purposes. All intellectual property, including Company’s Website, copyrighted program and/or course materials, shall remain the sole property of Company. No license to sell or distribute Company’s materials is granted or implied.
By visiting the Website or purchasing a program or services, Visitor and/or Registered User agrees (1) not to infringe any copyright, patent, trademark, trade secret, or other intellectual property rights, (2) that any Confidential Information shared by the Company is confidential and proprietary, and belongs solely and exclusively to the Company, (3) Visitor and/or Registered User agrees not to disclose such information to any other person or use it in any manner other than in discussion with the Company.
Further, by visiting the Website and/or purchasing the program, Visitor and/or Registered User agrees that if Visitor and/or Registered User violates, or displays any likelihood of violating, any of Visitor and/or Registered User’s agreements contained in this paragraph, the Company will be entitled to injunctive relief among other remedies to prohibit any such violations and to protect against the harm of such violations.
Visitor and/or Registered User accepts and agrees that Visitor and/or Registered User is 100% responsible for their progress and results from any program. Consultant will help and guide Visitor and/or Registered User; however, participation is the one vital element to a program’s success that relies solely on Visitor and/or Registered User. Company makes no representations, warranties or guarantees verbally or in writing regarding Visitor and/or Registered User’s performance. Visitor and/or Registered User understands that because of the nature of the program and extent, the results experienced by each Visitor and/or Registered User may significantly vary. By purchasing this course, Visitor and/or Registered User acknowledges that as with any business endeavor, there is an inherent risk of loss of capital and there is no guarantee that Visitor and/or Registered User will reach their goals as a result of participation in a program.
INDEPENDENT CONTRACTOR STATUS
Nothing in this Agreement is to be construed as creating a partnership, venture alliance, or any other similar relationship. Each party shall be an independent contractor in its performance hereunder and shall retain control over its personnel and the manner in which such personnel perform hereunder. In no event shall such persons be deemed employees of the other party by virtue of participation or performance hereunder.
In the event that any cause beyond the reasonable control of either Party, including without limitation acts of God, war, curtailment or interruption of transportation facilities, threats or acts of terrorism, State Department travel advisory, labor strike or civil disturbance, make it inadvisable, illegal, or impossible, either because of unreasonable increased costs or risk of injury, for either Party to perform its obligations under this Agreement, the affected Party’s performance shall be extended without liability for the period of delay or inability to perform due to such occurrence.
If any provision of this Agreement is held by to be invalid or unenforceable, the remaining provisions shall nevertheless continue in full force. The failure of either Party to exercise any right provided for herein will not be deemed a waiver of that right or any further rights hereunder.
1) LIMITATION OF LIABILITY. Visitor and/or Registered User agrees they used Company’s services at their own risk and that Website and/or materials provided is only an educational service being provided. Visitor and/or Registered User releases Company, its officers, employers, directors, and related entities from any and all damages that may result from any claims arising from any agreements, past or present, between the parties. Visitor and/or Registered User accepts any and all risks, foreseeable or unforeseeable.
Visitor and/or Registered User agrees that Company will not be held liable for any damages of any kind resulting or arising from including but not limited to; direct, indirect, incidental, special, negligent, consequential, or exemplary damages happening from the use or misuse of Company’s services, visiting of this Website or enrollment in a program.
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 in the State of California for purposes of any such action by us.
2) NON-DISPARAGEMENT. In the event that a dispute arises between the Parties, the Parties agree and accept that the only venue for resolving such a dispute shall be in the venue set forth herein below. The parties agree that they neither will engage in any conduct or communications with a third party, public or private, designed to disparage the other.
3) ASSIGNMENT. This Agreement may not be assigned by either party without express written consent of both parties. Notwithstanding the foregoing, Company may assign its rights hereunder to an entity created by Coach (e.g. if Coach decides to create a corporation instead of just a dba).
4) TERMINATION. Company is committed to providing all Visitor and/or Registered Users in the Website and/or materials provided with a positive experience. By purchasing this program, Visitor and/or Registered User agrees that the Company may, at its sole discretion, terminate this Agreement, and limit, suspend, or terminate Visitor and/or Registered User’s participation in a program without refund or forgiveness of monthly payments if Visitor and/or Registered User become disruptive or difficult to work with, or upon violation of the terms. Visitor and/or Registered User will still be liable to pay the total contract amount.
5) INDEMNIFICATION. Visitor and/or Registered User shall defend, indemnify, and hold harmless Company, Company’s officers, employers, employees, contractors, directors, related entities, trustees, affiliates, and successors from and against any and all liabilities and expense whatsoever – including without limitation, claims, damages, judgments, awards, settlements, investigations, costs, attorney’s fees, and disbursements – which any of them may incur or become obligated to pay arising out of or resulting from the offering for sale, the sale, and/or use of the product(s), excluding, however, any such expenses and liabilities which may result from a breach of this Agreement or sole negligence or willful misconduct by Company, or any of its shareholders, trustees, affiliates or successors. Visitor and/or Registered User shall defend Company in any legal actions, regulatory actions, or the like arising from or related to this Agreement. Visitor and/or Registered User recognizes and agrees that all of the Company’s shareholders, trustees, affiliates and successors shall not be held personally responsible or liable for any actions or representations of the Company.
6) RESOLUTION OF DISPUTES. If not resolved first by good-faith negotiation between the parties, every controversy or dispute relating to this Agreement will be submitted to the American Arbitration Association. All claims against Company must be lodged within 100-days of the date of the first claim or otherwise be forfeited forever. The arbitration shall occur within ninety (90) days from the date of the initial arbitration demand. The parties shall cooperate to ensure that the arbitration process is completed within the ninety (90) day period. The parties shall cooperate in exchanging and expediting discovery as part of the arbitration process. The written decision of the arbitrators (which will provide for the payment of costs) will be absolutely binding and conclusive and not subject to judicial review, and may be entered and enforced in any court of proper jurisdiction, either as a judgment of law or a decree in equity, as circumstances may indicate. In disputes involving unpaid balances on behalf of Visitor and/or Registered User, Visitor and/or Registered User is responsible for any and all arbitration and attorney fees.
7) EQUITABLE RELIEF. In the event that a dispute arises between the Parties for which monetary relief is inadequate and where a Party may suffer irreparable harm in the absence of an appropriate remedy, the injured Party may apply to any court of competent jurisdiction for equitable relief, including without limitation a temporary restraining order or injunction.
8) NOTICES. Any notices to be given hereunder by either Party to the other may be effected by personal delivery or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the Parties at the addresses appearing below. Notices delivered personally shall be deemed communicated as of the date of actual receipt; mailed notices shall be deemed communicated as of three (3) days after the date of mailing. For purposes of this Agreement, “personal delivery” includes notice transmitted by fax or electronic mail, provided sender maintains confirmation that the notice was properly transmitted on that date.
THE WEBSITES AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE WEBSITES WILL OPERATE ERROR-FREE OR THAT THE WEBSITES, THEIR SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
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 ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITES OR THE CONTENT SHALL BE LIMITED TO THE FEES YOU HAVE PAID US IN CONNECTION WITH ANY PURCHASES YOU HAVE MADE FROM US DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
THE WEBSITES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE WEBSITES. THE WEBSITES MAY CONTAIN INFORMATION ON CERTAIN PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT OR SERVICE ON THE WEBSITES DOES NOT IMPLY THAT SUCH PRODUCT OR SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE WEBSITES AT ANY TIME WITHOUT NOTICE.
This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, executors, administrators, successors and permitted assigns. Waiver of any breach or the failure to enforce any provision hereof shall not constitute a waiver of that or any other provision in any other circumstance.
This Agreement constitutes and contains the entire agreement between the parties with respect to its subject matter, supersedes all previous discussions, negotiations, proposals, agreements and understandings between them relating to such subject matter, and may not be modified, amended, or discharged, nor may any of its terms be waived, except by an instrument in writing signed by both parties in duplicate.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, together, will constitute one and the same instrument. The parties hereto have caused this Agreement to be executed and delivered as of the date first above written.