These Course Terms and Conditions (“Agreement”) are made and entered into between Jessica Zweig, Inc. d/b/a SimplyBe. Agency (“SimplyBe.”, “we” or “us”) and you (“you” or “your”). This Agreement shall govern the provision of the SimplyBe. learning course you elect and enroll in (the “Course”) at simplybeagency.myshopify.com, and as described therein and at simplybeagency.com and/or jessicazweig.com (collectively, the “Website(s)”) and your use of Course materials and information.
Please read this Agreement carefully before enrolling in the Course. You are not allowed to enroll and/or take the Course if you do not agree to the terms and conditions set forth in this Agreement.
BY ESTABLISHING AN ACCOUNT AND ENROLLING IN THE COURSE, YOU EXPRESSLY ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT AS OF THE DATE OF SUCH PURCHASE (“EFFECTIVE DATE”). BY CHECKING THE BOX TO INDICATE YOUR ACCEPTANCE TO THIS AGREEMENT AND CLICKING ON THE “ACCEPT” BUTTON ON THE SCREEN TO ENROLL IN THE COURSE AND/OR TAKE THE COURSE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS WELL AS ALL OTHER APPLICABLE RULES OR POLICIES, TERMS AND CONDITIONS THAT ARE AND/OR MAY BE ESTABLISHED BY US FROM TIME TO TIME AND THE FOREGOING SHALL BE INCORPORATED HEREIN BY REFERENCE. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING AND/OR RECEIVING COURSES ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY OR AGENCY TO THIS AGREEMENT. IN SUCH EVENT, “YOU” AND “YOUR” AS USED HEREIN WILL REFER AND APPLY TO EACH ENTITY OR AGENCY. THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL GOVERN YOUR ACCESS TO THE COURSE AND USE OF THE COURSE MATERIALS. IF YOU DO NOT ACCEPT THIS AGREEMENT, NOW OR IN THE FUTURE, PLEASE STOP YOUR USE OF THE COURSE AND COURSE MATERIALS IMMEDIATELY, IN WHICH CASE ANY CONTINUING ACCESS AND/OR USE OF THE COURSE AND/OR COURSE MATERIALS IS UNAUTHORIZED.
1. Courses. SimplyBe. has developed learning Courses made available on its Websites to assist clients with personal branding and such Courses cover topics such as marketing, design, content, and strategy to support personal branding practices. Each Course description is included on the Website(s), and may change from time to time by SimplyBe. in its sole discretion; however, after you elect to enroll in a Course, we will honor the description provided for such Course for the timeframe set forth herein. Such Course description shall be incorporated herein by reference.
2. Establishing an Account & Course Period. By establishing an account and purchasing the Course, you agree that i) you are legally capable of entering into binding contracts; and ii) you are at least eighteen (18) years of age. At the time you establish an account and purchase the Course, SimplyBe. may ask you to verify your identity and/or provide other relevant information. Without restricting SimplyBe.’s other rights, if you do not provide such information, SimplyBe. will be entitled to cancel this Agreement without liability, and shall not be obligated to provide the Course and/or materials. You shall have one hundred and eighty (180) days from the Effective Date to complete the Course (the “Course Period”), , and after such Course Period, your access to the Course shall terminate. SimplyBe. shall have the right to retain all fees paid, regardless of whether such Course was accessed, used and/or completed by you. You agree not to take any action which is intended, or would reasonably be expected, to harm SimplyBe.’s reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to SimplyBe., except as otherwise permitted by applicable law.
3. Confidential Information; Compliance with Laws. “Confidential Information” includes all information related to SimplyBe. and any of its affiliates, clients and other third parties, to which you have access, whether in oral, written, graphic or machine-readable form, in the course of or in connection with the Course, use of the Website(s) and the terms and conditions of this Agreement. You will keep the Confidential Information confidential and acknowledge and agree you will assume full responsibility for any failure to comply with the terms and conditions of this Agreement. You will not use any Confidential Information for any purpose other than to perform your obligations under this Agreement. You may only disclose Confidential Information when legally required to do so after informing SimplyBe. of your legal obligation. Upon termination or expiration of this Agreement, or upon SimplyBe.’s request, you shall return or destroy (with officer certification, as applicable) all originals and copies of SimplyBe.’s Confidential Information. You shall comply with all applicable laws, including without limitation applicable privacy laws.
4. Term; Termination. The term of this Agreement shall commence on the Effective Date and will continue until expiration of the Course Period, unless terminated earlier in accordance with the terms and conditions set forth herein. SimplyBe. reserves the right, in its sole and absolute discretion, to terminate your access to the Course and related materials, Website(s) or any portion thereof at any time without liability. In addition, if a party materially breaches this Agreement (the “Defaulting Party”), and the Defaulting Party does not cure such breach within seven (7) days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement upon written notice to the Defaulting Party. Termination of this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement, at law or in equity. Upon termination you will pay all outstanding fees, charges and expenses incurred through the effective date of termination.
5. Fees. In exchange for providing the Course, you agree to pay SimplyBe. the one-time fee reflected in the description of the Course when you enrolled in the Course. Such fee will be paid in U.S. dollars, and all payments due to SimplyBe. will be made via Stripe, Shopify or any other payment method designated from time to time by SimplyBe. All fees shall be due and payable on the Effective Date. You are responsible for applicable taxes, fees, duties, and charges (if any) incurred in connection with the Course. Any valid and applicable discount codes may be applied at the time of purchase. All fees due and payable by you to SimplyBe. hereunder must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law, and are non-refundable except as determined by SimplyBe. in its sole and absolute discretion.
6. Your Content. There may be instances when you share feedback, suggestions, ratings and reviews related to SimplyBe. and the Course (“Your Content”). In such event, you hereby grant SimplyBe. a non-exclusive, irrevocable, perpetual right and license to reproduce, distribute and display the Your Content. You represent to SimplyBe. that all Your Content is owned by you or that you have permission from the rightful owner to use each of the elements of Your Content including without limitation for SimplyBe.’s promotional materials, client lists, brochures, white papers and/or electronic media. You and your licensors retain all right, title and interest, to the Your Content.
7. Ownership. SimplyBe. retains all rights, title, interest and ownership of any and all intellectual and proprietary rights with respect to the Website(s), Course, and any other Course materials and/or information provided or made available to you by SimplyBe. hereunder. You understand that the Course and other materials and information that you receive are confidential and proprietary to SimplyBe. and shall not be sold, loaned, rented, given away, distributed, advertised for sale on the ‘Internet’ and/or through any other medium, and/or exploited in any manner. SimplyBe. hereby grants to you, subject to SimplyBe.’s receipt of payment, a non-exclusive, non-transferable, royalty-free, and limited license under to use the Course and materials solely for your internal use solely during the Course Period. Except as expressly permitted hereunder, you shall not, directly or indirectly, without the express, prior written consent of SimplyBe. (i) use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, sell, exploit, assign or transfer the Course, materials and/or information provided by SimplyBe. or any portion thereof, or any of your rights thereto, (ii) merge any Course, materials and/or information provided by SimplyBe. or any portion thereof with any other program or materials, (iii) copy, adapt, modify, make error corrections to the Course, Website(s), materials and/or information provided by SimplyBe. in whole or in part, reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive any intellectual property provided or made available by SimplyBe., (iv) make any derivative works based on the Website(s), Course, materials and/or other information provided by SimplyBe., (v) remove, obliterate, modify, obscure or cancel from view any copyright, trademark, or other proprietary or confidentiality notice appearing on the Website(s), Course, materials and/or information provided by SimplyBe., (vi) take any action that materially interrupts or interferes with, or that might reasonably have been expected to materially interrupt or interfere with, the Website(s), Course, materials and/or information provided by SimplyBe. and/or SimplyBe.’s business operations or other customers, (vii) copy or imitate part or all of the design, layout or look and feel of the Website(s), Course, materials and/or information provided by SimplyBe. and/or access the Course, materials and/or information provided by SimplyBe. in order to build a similar or competitive product, (viii) purchase search engine or other pay per click keywords (such as ‘Google AdWords’), or domain names that use SimplyBe. and/or its third party providers trademarks and/or variations and misspellings thereof, (ix) circumvent or attempt to circumvent any limitations imposed on your account, (x) probe, scan, or test the vulnerability of any Website(s) and/or SimplyBe. and/or its third party providers system or network, unless SimplyBe. has given you prior written authorization, (xi) access the Course and/or Websites to collect or store any sensitive information (“Sensitive Information”) including without limitation any personal health information, banking and credit card information, or (xii) permit any other person and/or entity to engage in any of the foregoing conduct. In the event of your breach of this Section, SimplyBe. may terminate your account and access to the Website(s), Course, materials and other information immediately without notice or liability. You shall not access, store, distribute or transmit any Viruses or any material during the course of your use of the Course, materials and/or information provided by SimplyBe. that (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (b) facilitates illegal activity, and/or (c) causes damage or injury to any person or property. “Virus” shall mean any thing or device which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware, network, service or device. SimplyBe. may, without liability to you, disable or suspend your access to the Website(s), Course, materials and/or information in the event (w) of any breach or anticipated breach of this Agreement, (x) your access to or use of the Website(s) and/or Course disrupts or poses a security or other risk to SimplyBe. and/or any third party, (y) you are using the Website(s) and/or Course, materials and/or information for fraudulent or illegal activities, or (z) SimplyBe.’s continued provision of any Website(s), Course, materials and/or information is prohibited by applicable law.
8. Limitation of Liability. EACH PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAID BY YOU TO SIMPLYBE. HEREUNDER. IN NO EVENT WILL YOU OR SIMPLYBE. BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OR EXCLUSION OF YOUR LIABILITY WILL APPLY WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR RELATING TO SECTION 3 AND/OR SECTION 9 OF THIS AGREEMENT, OR YOUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR ANY CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE EXCLUSIONS AND LIMITS STATED IN THIS AGREEMENT DO NOT APPLY TO ANY OF YOUR OBLIGATIONS TO PAY FEES TO SIMPLYBE. UNDER THIS AGREEMENT.
9. Indemnification. You agree to indemnify, hold harmless and defend SimplyBe. and its respective officers, directors, managers, members, employees, agents, sub-contractors, representatives, successors and assigns (collectively, the “SimplyBe. Indemnified Persons”), for any and all damages awarded in respect of any claims, judgments, actions, suits, proceedings, demands, liabilities, costs, losses, damages and expenses, including but not limited to interest, penalties, reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (“(“Losses”), which any SimplyBe. Indemnified Person may suffer in connection with or in any way relating to: i) any breach or violation of any term, condition, obligation, duty, representation, warranty or covenant of yours set forth herein, and/or ii) any act or omission by you (each a “SimplyBe. Claim”). SimplyBe. shall give notice to you in the event SimplyBe. becomes aware of any SimplyBe. Claim.
10. Disclaimer. UNLESS EXPRESSLY STATED IN THIS AGREEMENT, SIMPLYBE. MAKES NO REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL OR EXPRESS OR IMPLIED. SIMPLYBE. SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE QUALITY OR MERCHANTABILITY. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ANY WRITTEN MATERIALS CREATED OR PROVIDED BY SIMPLYBE. SHALL BE FOR INFORMATIONAL PURPOSES ONLY AND, WHETHER DELIVERED OR DISSEMINATED BEFORE OR AFTER THE DATE OF THIS AGREEMENT, SHALL NOT CREATE ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTY OF PERFORMANCE, OR CONTRACTUAL OBLIGATIONS.
11. Force Majeure. Other than with respect to your payment obligations, neither party shall be held responsible for delays or non-performance caused by activities or factors beyond each party’s reasonable control, including without limitation, war, weather, strikes, lockouts, fires, failure of telecommunication lines, unavailability of key personnel, epidemics, pandemics, acts of God, or terrorism (“Force Majeure Event”). Notwithstanding the foregoing, the affected party shall promptly provide written notice thereof to the other party, which notice shall include a detailed description of the event of force majeure along with the affected party’s estimate of the length of time such event will delay or prevent performance under this Agreement. Additionally, the affected party shall use reasonable efforts to limit the impact of the event of force majeure on its performance under this Agreement. If an event of force majeure continues for at least thirty (30) days, either party shall have the right to immediately terminate this Agreement upon notice to the other party.
12. No Third Party Reliance. Nothing contained in this Agreement shall be construed, or is intended to give any rights or benefits to any person or entity, other than to you, SimplyBe. and the SimplyBe. Indemnified Persons. All duties and responsibilities set forth and/or undertaken pursuant to this Agreement are for the sole and exclusive benefit of you, SimplyBe., and the SimplyBe. Indemnified Persons and for no other person or entity.
13. Assignment. You may not assign your rights and/or obligations under this Agreement. Any attempt by you to assign this Agreement is void.
14. Notices. When you enroll and/or take the Course, email us or contact us via the Website(s), you are communicating with SimplyBe. electronically, and you consent to receive communications from us electronically. We will communicate with you by e-mail, and you will communicate by us by sending an e-mail to [email protected]. You acknowledge and agree that all agreements, notices, disclosures and/or other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
15. Choice of Law. This Agreement is made in and shall be interpreted and governed in all respects in accordance with the laws of the State of Illinois without giving effect to any choice of law or conflict of law rules or provisions.
16. Disputes. We want to address your concerns without filing a formal legal case. Before filing a claim against SimplyBe., you agree to try to resolve the dispute informally by contacting us at [email protected]. We will try to resolve the dispute by contacting you via email, but if we cannot resolve the dispute within thirty (30) days of submission, you and/or SimplyBe. agree to resolve any claims related to this Agreement through mediation, except as forth under ‘Exceptions to Agreement to Mediation’ section below and/or you opt out as described below.
Opt-Out. You can opt-out and decline this agreement to mediate by contacting SimplyBe. within thirty (30) days from the date you initially accepted this Agreement. You must write us at SimplyBe. Agency, 1000 N. Milwaukee Ave., Chicago, IL 60642. If you opt out, neither you nor SimplyBe. can require the other to participate in a mediation proceeding.
Mediation Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Mediate section below and/or if you opt out of mediation as described herein, all claims shall be settled by mediation in accordance with generally acceptable mediation process such as ‘JAMS’. Any such controversy and/or claim shall be mediated on an individual basis, and shall not be consolidated in any mediation with any claim or controversy of any other party. All information relating to and/or disclosed by any party in connection with the mediation of any disputes shall be treated by the parties, their representatives, and the mediator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. The mediation shall be held in Cook County, Illinois or any other location we agree to. Each party shall bear the burden of its own counsel fees incurred in connection with any mediation proceedings.
Exceptions to Agreement to Mediate. Notwithstanding anything herein to the contrary, the request by either party for preliminary or permanent injunctive relief, whether prohibitive or mandatory, and other equitable remedies, including specific performance, shall not be subject to arbitration, and any claims related to SimplyBe.’s intellectual property and/or Confidential Information shall be adjudicated only by the state or federal courts in Cook County, Illinois.
Judicial Forum for Disputes. In the event that the agreement to mediate is found not to apply to you and/or your claim, you and SimplyBe. agree that any judicial proceeding will be brought exclusively in the federal or state courts of Cook County, Chicago, Illinois. Both you and SimplyBe. consent to the foregoing venue and jurisdiction.
If either party institutes a suit against the other party to enforce or declare any of its rights under this Agreement pursuant to this Section, the prevailing party in such action shall be entitled to recover from the other party all Losses related thereto. As used herein, the term “prevailing party” means that party whose position is substantially upheld in a final judgment rendered in any litigation, or, if the final judgment is appealed, that party whose position is substantially upheld by the decision of the final appellate body that considers the appeal.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY DISPUTES ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HEREUNDER.
18. Copyright Complaints. Should you believe anything on the Websites and/or Course infringes on any copyright that you own or the copyright of others, you may notify the copyright agent (“Copyright Agent”) at SimplyBe., Attn: Copyright Agent, 1000 N Milwaukee Avenue, Chicago, Illinois 60642. We will respond to clear notices of copyright infringement when you provide the following information: (i) signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) description of the copyrighted work that is claimed to be infringed upon; (iii) description of where the material that is claimed to be infringed upon is located on the Website and/or Course; (iv) information reasonably sufficient to permit contact (i.e.: an address, telephone number, and an e-mail address at which the complaining party may be contacted); (v) statement that the complaining party has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) statement by the complaining party, made under penalty of perjury, that complaining party is authorized to act on behalf of the intellectual property owner of the right that is allegedly infringed. The Copyright Agent will not remove content from the Website and/or Course in response to phone or email notifications regarding allegedly infringing content, since a valid ‘DMCA’ notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by mail only and as further described by this Section. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the Website and/or Course. All other inquiries directed to the Copyright Agent will not be responded to.
19. General. This Agreement sets forth the entire agreement of the parties, and supersedes all prior agreements, whether written or oral. SimplyBe. may amend the terms of this Agreement at any time (including any and all applicable fees and Course descriptions), and such amendment shall become effective upon the date on which such amended terms are posted, except that SimplyBe. will honor any Course descriptions and fees during the Course Period. The parties agree that they have had the opportunity to read this Agreement and obtain the advice of legal counsel, and further agree that the provisions set forth herein are fair and reasonable. The headings in this Agreement are for convenience only and do not constitute terms of this Agreement. Notwithstanding any rules of construction to the contrary, no terms, provisions or conditions of this Agreement shall be construed against any party hereto by virtue of the drafting or preparing of this instrument by such party or its attorney. Any ambiguity or uncertainty existing herein shall not be interpreted or construed against any party hereto. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deemed to be restated to the minimal extent necessary for it to be valid and enforceable, and the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. Further, the parties shall negotiate in good faith an enforceable substitute provision for any unenforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision. Neither party shall be deemed to have waived any of its rights hereunder unless such waiver be in writing and set forth with particularity the provision hereof, enforcement of which is being waived; no such waiver shall be deemed a continuing waiver of the provision referred to in such notice or a waiver of that party’s right to enforcement of any other provision of this Agreement.
If you would like to request additional information regarding this Agreement or for any questions regarding the Website(s) and/or Course, please contact us at [email protected].
Last Updated: October 11, 2021