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Sales Terms + Conditions

TERMS AND CONDITIONS

  1. ACCEPTANCE
    • This Agreement is between Cassie Dionne Mendoza-Jones ABN 26 688 299 618 t/a Elevate Vitality, its successors and assignees, (referred to as “we”, “us” or “our”), and the individual who uses or purchases any services (Services) or related products from us (referred to as “you” or “your”), and collectively the Parties.
    • Our Services are available at cassiemendozajones.com (Site).
    • These Terms and Conditions (Terms) form the agreement under which we will supply Services to you. Please read the Terms carefully. Please contact us if you have any questions. Our contact details are at the end of these Terms.
    • You accept our Terms by making a purchase from us. Your purchase from us indicates that you have had sufficient opportunity to access the Terms and contact us, that you have read, accepted and will comply with the Terms, and that you are eighteen (18) years or older, or have the consent of a legal guardian who is eighteen (18) years or older. You must not order products or services from us if you are under eighteen (18) years of age or do not have the consent of a legal guardian who is eighteen (18) years or older. If you do not agree to the Terms, please do not use or purchase our Services.
  2. REGISTRATION AND SERVICES
    • Access to some of our Services will require you to register for an account (Account). It is your responsibility to keep the details of your Account, including username and password, confidential. You are liable for all activity on your Account, including any purchases made using your account details.
    • We agree to perform the Services with due care and skill.
    • We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.
    • You may request additional services via the Site. We have discretion as to whether we agree to perform such additional services. If we agree to perform the additional services we will issue you with a new proposal in respect of such order setting out the scope of the services and the fee for such services. You will be expected to pay the fee for such additional services before we commence performing them.
    • We may provide the Services to you using our employees, contractors and third party providers and they are included in these Terms.
    • Suppliers of third party services or products who are not an employee or our direct contractor (Third Party Suppliers) will be your responsibility. We are not responsible for the quality of services or products provided by Third Party Suppliers. You must make direct arrangements with them.
  3. FEES, INVOICING AND PAYMENT
    • You agree to pay us the fees, including any other payments and expenses, for the Services that you have requested, as set out on the Site (Fees). All amounts are stated in the currency set out on the website. All purchase prices include Australian GST (where applicable).
    • You will be required to make payment by way of credit card or PayPal and you must provide your credit card or PayPal details to us when making a purchase for the Services.
    • Payment options for the Fees may differ between the Services (as indicated on the Site).
    • For Services where the full Fees are required to be paid upfront, we will not provide any Services until payment is confirmed.
    • For particular Services (as indicated on the Site), you will be able to make payment of the Fees by way of making a 50% payment upfront (1st Instalment) and payment of the balance (2nd Instalment) at a specified date as set out on the Site (2nd Instalment Payment Date). We will provide the Services once payment of the 1st Instalment is confirmed.
    • At the 2nd Instalment Payment Date, the amount of the 2nd Instalment will be deducted from the credit card or PayPal account that you have provided to us. If we are unable to take payment from your credit card or PayPal account, we will attempt to contact you via email as soon as we become aware of the payment failure. Until the 2nd Instalment payment is confirmed, your Account will be locked and we will cease providing the Services until payment is confirmed.
    • If the 2nd Instalment payment is not made within 14 days of the 2nd Instalment Payment Date, we may:
  • terminate your Account without notice to you, in which case you will permanently lose access to your Account, the Materials and the Interactive Features; and/or
  • exercise our right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to us.
    • Our pricing structure, payment methods and these Terms may be amended from time to time at our discretion. The pricing changes will apply to you for services provided to you after the date of the change. All other changes will apply from the date that the amended or new Terms are posted on our website or are provided to you, whichever is earlier.
  1. INTERACTIVE FEATURES
    • Depending on the Services that you have purchased, you may be given access to interactive features as available from time to time (Interactive Features) including:
  • our blog;
  • our Facebook page; and
  • a members’ portal (Portal).
    • You acknowledge and agree that if you use our Facebook page, you will also be subject to Facebook’s terms and conditions.
    • Both the Portal and Facebook page will contain features which allow you to communicate with other users of our Services.
    • When using our Interactive Features, you must not:
  • restrict or inhibit any other user from using and enjoying the Interactive Features;
  • use the Interactive Features to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • interfere with or disrupt any servers or networks used to provide the Interactive Features, or disobey any requirements, procedures, policies or regulations of the networks we use to provide the Interactive Features and Services;
  • use the Interactive Features to instigate or encourage others to commit illegal activities or cause injury or property damage to any person; or
  • gather for marketing purposes any email addresses or personal information that has been provided by other users of the Interactive Features or Services.
    • We do not undertake to review any messages, information or content made available on the Interactive Features (Third Party Content) and we disclaim all liability in relation to such Third Party Content to the extent permissible by law. We do, however, reserve the right to monitor the Third Party Content made available on the Interactive Features and reserve the right to alter, edit, refuse to post or remove any Third Party Content, in whole or in part, for any reason whatsoever, in our sole discretion.
  1. YOUR OBLIGATIONS AND WARRANTIES
    • You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior twelve (12) month period.
    • You warrant that throughout the term of this Agreement that:
  • there are no legal restrictions preventing you from agreeing to the Terms;
  • you will cooperate with us and provide us with information and comply with requirements in a timely manner, as requested by us from time to time, that are reasonably necessary to enable us to perform the Services;
  • the information you provide to us is true, correct and complete;
  • you will not infringe any third party rights in working with us and receiving the Services;
  • you will inform us if you have reasonable concerns relating to our provision of Services under the Terms, with the aim that we and you will use all reasonable efforts to resolve the concerns;
  • you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
  • you consent to the use of your name and Intellectual Property in relation to the Services in a way which may identify you;
  • if applicable, you hold a valid ABN which has been advised to us; and
  • if applicable, you are registered for GST purposes.
  1. OUR INTELLECTUAL PROPERTY
    • The work and materials that we provide to you in carrying out the Services contains material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the Intellectual Property including copyright which subsists in all creative and literary works incorporated into our Materials.
    • The Materials are provided to you for your exclusive non-commercial use only. The Materials are not to be shared with any other individual, and if such Materials are disclosed to any third parties without our consent, we reserve the right to terminate your Account immediately.
    • You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights in our Materials, except as stated in these Terms or with our written permission.
    • Your use of our Materials does not grant you a licence or act as a right to use any of the Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
    • You must not breach our copyright or Intellectual Property rights by, including but not limited to:
  • altering or modifying any of the Materials;
  • creating derivative works from the Materials; or
  • using our Materials for commercial purposes such as onsale to third parties.
  1. CONFIDENTIAL INFORMATION
    • We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than, where necessary, Third Party Suppliers); to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you, to provide better quality services to you and not for any other purpose.
    • You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
    • These obligations do not apply to Confidential Information that:
  • is authorised to be disclosed;
  • is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
  • is received from a third party, except where there has been a breach of confidence; or
  • must be disclosed by law or by a regulatory authority including under subpoena.
    • The obligations under this clause will survive termination of these Terms.
  1. FEEDBACK AND DISPUTE RESOLUTION
    • Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact us.
    • If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
  • The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
  • If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
    • Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
  1. TERMINATION
    • If you wish to terminate the Terms prior to completion of the Services, you are required to provide us with notice in writing. You acknowledge and agree that:
  • to the extent permitted by law, any payments made for the Services will not be refunded to you; and
  • if you elect to use the Services again at a later date, you will be required to pay the full Fees for the Services – you will not receive any store credit for Services which were prematurely terminated by you.
    • Either party may terminate the Terms if there has been a material breach of these Terms, subject to following the dispute resolution procedure.
    • We may terminate the Terms immediately, in our sole discretion, if:
  • we discover that you are sharing our Materials or your Account details with third parties;
  • we consider that a request for a Service is inappropriate, improper or unlawful;
  • you fail to provide us with clear or timely instructions to enable us to provide the Services;
  • we consider that our working relationship has broken down including a loss of confidence and trust;
  • you post any disparaging or disrespectful comments about us or any other users in our Portal or Facebook page;
  • you act in a way which we reasonably believe will bring us or our Site into disrepute;
  • you provide us with incorrect credit card or Paypal details or any other incorrect information;
  • for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe; or
  • where applicable, you fail to pay the 2nd Instalment within 21 days of the 2nd Instalment Payment Date.
    • On termination of these Terms you agree that the Fees and any other payments made are not refundable to you, and you are to pay all invoices for Services rendered to you.
    • If you terminate this Agreement early, you must pay for all Services provided prior to termination, including any Services which have been performed and have not yet been billed to you.
    • On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
    • On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
    • On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
    • The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
  1. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
    • ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).   Our liability is governed solely by the ACL and these Terms.
    • Services: If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services to achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
    • Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services in this estimated period, which is affected by your delay in response, incomplete or incorrect information.
    • Referral: On request by you, we may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
    • Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
    • Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services, the Site, the Interactive Features and this Agreement, except those set out in this Agreement, including but not limited to:
  • implied or express guarantees, representations or conditions of any kind, which are not stated in the Terms;
  • our Services, the Site and the Interactive Features being unavailable; and
  • any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with the Site or the Interactive Features or your inability to access or use the Services or the Interactive Features, and the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
    • Information: While the information and material on the Site and our blog, in the Materials and otherwise provided to you is believed to be accurate and current, it is provided by us in good faith on an “as is” basis, and we and our directors, officers and employees accept no responsibility for and make no representations or warranties to you or to any other person as to the reliability, accuracy or completeness of such information and materials. Any reliance you place on the information and materials is at your own risk.
    • Limitation: Our total liability arising out of or in connection with our Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
    • Disclaimer: You agree that any information, insights or guidance contained in our Site, Services, Interactive Features or Materials is not an attempt to practice medicine or provide medical advice. It is not to be used or relied on for any diagnostic or treatment purposes. Use of our Site, Services, Interactive Features or Materials does not establish a doctor-patient relationship. The Materials should not be used as a substitute for professional diagnosis and treatment. Any health information in our Site, Services, Interactive Features or Materials, is provided simply for your convenience. The Site, Service, Interactive Features and Materials are intended for general information purposes only. They do not take into account your own personal circumstances. They are not intended to be advice, they are not intended to be relied upon and they are not a substitute for professional medical advice based on your personal circumstances.
    • You are solely responsible for determining the suitability of any of our Services, and your reliance on any information that is provided to you through our Site, Services, Interactive Services or Materials are at your own risk.
    • This clause will survive termination of these Terms.
  1. INDEMNITY
    • You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
  • any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
  • any breach of these Terms; and
  • any misuse of the Services, the Site or the Interactive Features from or by you, your employees, contractors or agents.
    • You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
    • The obligations under this clause will survive termination of these Terms.
  1. GENERAL
    • Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
    • Publicity: You consent to us using advertising or publically announcing that we have undertaken work for you.
    • Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
    • GST: If and when applicable, GST payable on our Services will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
    • Relationship of parties: The Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
    • Assignment: The Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
    • Severance: If any provision (or part of it) of the Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of the Terms are valid and enforceable.
    • Force Majeure: We will not be liable for any delay or failure to perform our obligations under the Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days’ notice in writing.
    • Notice: Any notice required or permitted to be given by either party to the other under these conditions will be in writing addressed to you at the address in the Proposal. Our address is set out in the Proposal. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
    • Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
    • Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
  2. DEFINITIONS
    • Confidential Information includes confidential information about you, your credit card or Paypal details, your personal information, the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
    • GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
    • Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.

 

Contact details:

 

Cassie Dionne Mendoza-Jones ABN 26 688 299 618

t/a Elevate Vitality

PO Box 1039

Double Bay NSW 1360

hello@cassiemendozajones.com

 

Last update: 1 May 2015