Website Terms and Conditions of Use
1. About the Website
1.1. Welcome to www.mindmomentum.com.au (the ‘Website’). The Website online
and phone counselling, therapy and coaching, and online courses via ‘Thinkific’
e-learning platform (the ‘Services’).
1.2. The Website is operated by Wendy Gilroy . Access to and use of the Website,
or any of its associated Products or Services, is provided by Wendy Gilroy.
Please read these terms and conditions (the ‘Terms’) carefully. By using,
browsing and/or reading the Website, this signifies that you have read,
understood and agree to be bound by the Terms. If you do not agree with the
Terms, you must cease usage of the Website, or any of Services, immediately.
1.3. Wendy Gilroy reserves the right to review and change any of the Terms by
updating this page at its sole discretion. When Wendy Gilroy updates the
Terms, it will use reasonable endeavours to provide you with notice of updates
to the Terms. Any changes to the Terms take immediate effect from the date of
their publication. Before you continue, we recommend you keep a copy of the
Terms for your records.
2. Acceptance of the Terms
You accept the Terms by remaining on the Website. You may also accept the Terms by
clicking to accept or agree to the Terms where this option is made available to you by
Wendy Gilroy in the user interface.
3. Registration to use the Services
3.1. In order to access the Services, you must first register for an account through
the Website (the ‘Account’).
3.2. As part of the registration process, or as part of your continued use of the
Services, you may be required to provide personal information about yourself
(such as identification or contact details), including:
(a) Email address
(b) Preferred username
(c) Password
3.3. You warrant that any information you give to Wendy Gilroy in the course of
completing the registration process will always be accurate, correct and up to
date.
3.4. Once you have completed the registration process, you will be a registered
member of the Website (‘Member’) and agree to be bound by the Terms.
3.5. You may not use the Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with Wendy Gilroy; or
(b) you are a person barred from receiving the Services under the laws of
Australia or other countries including the country in which you are
resident or from which you use the Services.
4. Your obligations as a Member
4.1. As a Member, you agree to comply with the following:
(a) you will use the Services only for purposes that are permitted by:
(i) the Terms; and
(ii) any applicable law, regulation or generally accepted practices or
guidelines in the relevant jurisdictions;
(b) you have the sole responsibility for protecting the confidentiality of your
password and/or email address. Use of your password by any other
person may result in the immediate cancellation of the Services;
(c) any use of your registration information by any other person, or third
parties, is strictly prohibited. You agree to immediately notify Wendy Gilroy
of any unauthorised use of your password or email address or any breach
of security of which you have become aware;
(d) access and use of the Website is limited, non-transferable and allows for
the sole use of the Website by you for the purposes of Wendy Gilroy
providing the Services;
(e) you will not use the Services or the Website in connection with any
commercial endeavours except those that are specifically endorsed or
approved by the management of Wendy Gilroy;
(f) you will not use the Services or Website for any illegal and/or unauthorised
use which includes collecting email addresses of Members by electronic or
other means for the purpose of sending unsolicited email or unauthorised
framing of or linking to the Website;
(g) you agree that commercial advertisements, affiliate links, and other forms
of solicitation may be removed from the Website without notice and may
result in termination of the Services. Appropriate legal action will be taken
by Wendy Gilroy for any illegal or unauthorised use of the Website; and
(h) you acknowledge and agree that any automated use of the Website or its
Services is prohibited.
5. Payment
5.1. Where the option is given to you, you may make payment for the Services (the
‘ Services Fee’) by way of:
(a) Credit Card Payment (‘Credit Card’)
(b) PayPal (‘PayPal’)
5.2. All payments made in the course of your use of the Services are made using
Stripe or Paypal. In using the Website, the Services or when making any
payment in relation to your use of the Services, you warrant that you have
read, understood and agree to be bound by the Stripe or Paypal terms and
conditions which are available on their website.
5.3. You acknowledge and agree that where a request for the payment of the
Services Fee is returned or denied, for whatever reason, by your financial
institution or is unpaid by you for any other reason, then you are liable for any
costs, including banking fees and charges, associated with the Services Fee.
5.4. You agree and acknowledge that Wendy Gilroy can vary the Services Fee at
any time .
6. Refund Policy
Wendy Gilroy will only provide you with a refund of the Services Fee in the event they
are unable to continue to provide the Services or if the manager of Wendy Gilroy makes
a decision, at its absolute discretion, that it is reasonable to do so under the
circumstances (the ‘Refund’).
7. Copyright and Intellectual Property
7.1. The Website, the Services and all of the related products of Wendy Gilroy are
subject to copyright. The material on the Website is protected by copyright
under the laws of Australia and through international treaties. Unless otherwise
indicated, all rights (including copyright) in the Services and compilation of the
Website (including but not limited to text, graphics, logos, button icons, video
images, audio clips, Website, code, scripts, design elements and interactive
features) or the Services are owned or controlled for these purposes, and are
reserved by Wendy Gilroy or its contributors.
7.2. All trademarks, service marks and trade names are owned, registered and/or
licensed by Wendy Gilroy, who grants to you a worldwide, non-exclusive,
royalty-free, revocable license whilst you are a Member to:
Wendy Gilroy does not grant you any other rights whatsoever in relation to the
Website or the Services. All other rights are expressly reserved by Wendy
Gilroy.
(a) use the Website pursuant to the Terms;
(b) copy and store the Website and the material contained in the Website in
your device’s cache memory; and
(c) print pages from the Website for your own personal and non-commercial
use.
7.3. Wendy Gilroy retains all rights, title and interest in and to the Website and all
related Services. Nothing you do on or in relation to the Website will transfer
any:
to you.
(a) business name, trading name, domain name, trade mark, industrial
design, patent, registered design or copyright, or
(b) a right to use or exploit a business name, trading name, domain name,
trade mark or industrial design, or
(c) a thing, system or process that is the subject of a patent, registered design
or copyright (or an adaptation or modification of such a thing, system or
process),
7.4. You may not, without the prior written permission of Wendy Gilroy and the
permission of any other relevant rights owners: broadcast, republish, up-load to
a third party, transmit, post, distribute, show or play in public, adapt or change
in any way the Services or third party Services for any purpose, unless
otherwise provided by these Terms. This prohibition does not extend to
materials on the Website, which are freely available for re-use or are in the
public domain.
8. Privacy
8.1. Wendy Gilroy takes your privacy seriously and any information provided
through your use of the Website and/or Services are subject to Wendy Gilroy’s
Privacy Policy, which is available on the Website.
9. General Disclaimer
9.1. Nothing in the Terms limits or excludes any guarantees, warranties,
representations or conditions implied or imposed by law, including the
Australian Consumer Law (or any liability under them) which by law may not be
limited or excluded.
9.2. Subject to this clause, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are
not expressly stated in the Terms are excluded; and
(b) Wendy Gilroy will not be liable for any special, indirect or consequential
loss or damage (unless such loss or damage is reasonably foreseeable
resulting from our failure to meet an applicable Consumer Guarantee),
loss of profit or opportunity, or damage to goodwill arising out of or in
connection with the Services or these Terms (including as a result of not
being able to use the Services or the late supply of the Services), whether
at common law, under contract, tort (including negligence), in equity,
pursuant to statute or otherwise.
9.3. Use of the Website and the Services is at your own risk. Everything on the
Website and the Services is provided to you “as is” and “as available” without
warranty or condition of any kind. None of the affiliates, directors, officers,
employees, agents, contributors and licensors of Wendy Gilroy make any
express or implied representation or warranty about the Services or any
products or Services (including the products or Services of Wendy Gilroy)
referred to on the Website, includes (but is not restricted to) loss or damage
you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect,
failure to correct defects, delay in operation or transmission, computer
virus or other harmful component, loss of data, communication line failure,
unlawful third party conduct, or theft, destruction, alteration or
unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the
Services, or any of its Services related products (including third party
material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Services or any of
the products of Wendy Gilroy; and
(d) the Services or operation in respect to links which are provided for your
convenience.
10. Limitation of liability
10.1. Wendy Gilroy’s total liability arising out of or in connection with the Services or
these Terms, however arising, including under contract, tort (including
negligence), in equity, under statute or otherwise, will not exceed the resupply
of the Services to you.
10.2. You expressly understand and agree that Wendy Gilroy, its affiliates,
employees, agents, contributors and licensors shall not be liable to you for any
direct, indirect, incidental, special consequential or exemplary damages which
may be incurred by you, however caused and under any theory of liability. This
shall include, but is not limited to, any loss of profit (whether incurred directly or
indirectly), any loss of goodwill or business reputation and any other intangible
loss.
11. Termination of Contract
11.1. The Terms will continue to apply until terminated by either you or by Wendy
Gilroy as set out below.
11.2. If you want to terminate the Terms, you may do so by:
Your notice should be sent, in writing, to Wendy Gilroy via the ‘Contact Us’ link
on our homepage.
(a) providing Wendy Gilroy with 1 days’ notice of your intention to terminate;
and
(b) closing your accounts for all of the services which you use, where Wendy
Gilroy has made this option available to you.
11.3. Wendy Gilroy may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any
provision;
(b) Wendy Gilroy is required to do so by law;
(c) the provision of the Services to you by Wendy Gilroy is, in the opinion of
Wendy Gilroy, no longer commercially viable.
11.4. Subject to local applicable laws, Wendy Gilroy reserves the right to discontinue
or cancel your membership at any time and may suspend or deny, in its sole
discretion, your access to all or any portion of the Website or the Services
without notice if you breach any provision of the Terms or any applicable law or
if your conduct impacts Wendy Gilroy’s name or reputation or violates the rights
of those of another party.
12. Indemnity
12.1. You agree to indemnify Wendy Gilroy, its affiliates, employees, agents,
contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and
damage (including legal fees on a full indemnity basis) incurred, suffered
or arising out of or in connection with Your Content;
(b) any direct or indirect consequences of you accessing, using or transacting
on the Website or attempts to do so; and/or
(c) any breach of the Terms.
13. Dispute Resolution
13.1. Compulsory:
If a dispute arises out of or relates to the Terms, either party may not commence any
Tribunal or Court proceedings in relation to the dispute, unless the following clauses
have been complied with (except where urgent interlocutory relief is sought).
13.2. Notice:
A party to the Terms claiming a dispute (‘Dispute’) has arisen under the Terms, must
give written notice to the other party detailing the nature of the dispute, the desired
outcome and the action required to settle the Dispute.
13.3. Resolution:
On receipt of that notice (‘Notice’) by that other party, the parties to the Terms
(‘Parties’) must:
13.4. Confidential:
All communications concerning negotiations made by the Parties arising out of and in
connection with this dispute resolution clause are confidential and to the extent possible,
must be treated as “without prejudice” negotiations for the purpose of applicable laws of
evidence.
13.5. Termination of Mediation:
If 14 days have elapsed after the start of a mediation of the Dispute and the Dispute has
not been resolved, either Party may ask the mediator to terminate the mediation and the
mediator must do so.
(a) Within 14 days of the Notice endeavour in good faith to resolve the Dispute
expeditiously by negotiation or such other means upon which they may mutually
agree;
(b) If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has
not been resolved, the Parties must either agree upon selection of a mediator or
request that an appropriate mediator be appointed by the President of the
Australian Mediation Association or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator
and the cost of the venue of the mediation and without limiting the foregoing
undertake to pay any amounts requested by the mediator as a pre-condition to the
mediation commencing. The Parties must each pay their own costs associated with
the mediation;
(d) The mediation will be held in Sydney, Australia.
14. Venue and Jurisdiction
The Services offered by Wendy Gilroy is intended to be viewed by residents of Australia.
In the event of any dispute arising out of or in relation to the Website, you agree that the
Approved by
Signature: _________________________________________
Full Name:
Date:
exclusive venue for resolving any dispute shall be in the courts of New South Wales,
Australia.
15. Governing Law
The Terms are governed by the laws of New South Wales, Australia. Any dispute,
controversy, proceeding or claim of whatever nature arising out of or in any way relating
to the Terms and the rights created hereby shall be governed, interpreted and construed
by, under and pursuant to the laws of New South Wales, Australia, without reference to
conflict of law principles, notwithstanding mandatory rules. The validity of this governing
law clause is not contested. The Terms shall be binding to the benefit of the parties
hereto and their successors and assigns.
16. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and
reasonable and both parties having taken the opportunity to obtain independent legal
advice and declare the Terms are not against public policy on the grounds of inequality
or bargaining power or general grounds of restraint of trade.
17. Severance
If any part of these Terms is found to be void or unenforceable by a Court of competent
jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
Wendy Gilroy
20/09/2020
