Last modified: January 31, 2023
These Use Terms are a contract between you and us and govern your use of the Emily Smith Coaching Service, which is defined in the Glossary at the end of these Use Terms. These Use Terms describe our commitments to you, and your rights and responsibilities when using the Emily Smith Coaching Service. Please read them carefully, and reach out to us if you have any questions.
Agreeing to these Use Terms is a condition of any Emily Smith Coaching Service use. You signify your agreement to these Use Terms and are legally bound by them from the date on which you:
- Click to accept or agree to these Use Terms where Emily Smith Coaching presents an option to do so, either on the Website or otherwise; or
- Use the Services in any way, in which case you understand and agree that your Emily Smith Coaching Service use will signify your acceptance of these Use Terms from the moment you first begin to use the Emily Smith Coaching Service.
You agree that we may, in our sole discretion, amend these Use Terms at any time, in any way and from time to time. We will publish details of our proposed amendments to these Use Terms in a notice to this effect on our Website. This notice will identify the specific amendments we propose making to these Use Terms and the date on which these proposed amendments will become effective.
You agree that such a notice will be adequate notice of the proposed amendments and that these amendments shall automatically come into effect on the date specified in this notice. You further agree that it is your responsibility to review these Use Terms regularly in the event that we do publish a notice of proposed changes. Your continued use of the Emily Smith Coaching Service (except where your continued use of Emily Smith Coaching Service is permissible in terms of, for example, specific licenses) will be subject to you agreeing to the amended Use Terms.
Interpreting these Use Terms
These Use Terms contains a number of words and phrases which have specific meanings and most of which are capitalized. The Glossary, below, contains many of these words and phrases (others are set out in these Use Terms’ body and are designated by terms in quotation marks).
We also apply certain rules when interpreting these Use Terms and the Interpretation Guide, which sets out these rules, is below.
These Use Terms shall continue to bind you for so long as you make use of Emily Smith Coaching Service.
Effects of Termination
In the event these Use Terms are terminated for any reason whatsoever, the following clauses shall survive termination and continue to bind you:
The Emily Smith Coaching Service
Our Website details the Emily Smith Coaching Service which, broadly, comprises the following components:
- Support Service;
- Related Software Products.
We grant you a limited and non-exclusive right to use the Emily Smith Coaching Service (subject to any other applicable licenses such as the GPL) solely for the purposes which the Emily Smith Coaching Service is intended for and as permitted by the licenses applicable to the Emily Smith Coaching Service components. This right is not transferable to any other person unless we agree.
You agree that, except where the nature of the Emily Smith Coaching Service requires otherwise, each component of the Emily Smith Coaching Service constitutes a separate and distinct service, and we are not necessarily obliged to render two or more components of the Emily Smith Coaching Service as a single, indivisible service.
Our products are licensed under the GPL (click here to find out more about the GPL).
When you purchase paid Products, you will receive access to a Support Service for those Products for a period of one year. You may renew the Support Service for your paid Products on the anniversary of your paid Products’ purchase. For more information about the Support Service, read below.
Some of our Products have been contributed by 3rd Party service providers. These 3rd Party service providers may change from time to time and the Products they contribute may not always be available through the Emily Smith Coaching Service.
As we pointed out above, when you purchase paid Products, you will receive access to a Support Service developed to support the specific paid Products you have purchased. The Website contains more information about the specific Support Service you receive with each paid Product purchase. The corresponding Support Service is valid for 1 year from the date of your purchase, regardless of which paid Product you purchase, after which time the Support Service will come to an end.
Support Services are only available to you and you may not transfer them to any other person without our express, written consent. We may refuse to give consent for this at our discretion.
Emily Smith Coaching grants users a Content License in respect of Emily Smith Coaching’s Intellectual Property which forms part of the Services.
To the extent that any copying, reproduction, distribution, transmission, display, broadcasting or publishing of any Content is expressly permitted (such permission to be interpreted in its most restrictive sense) users may do so, provided that all trademarks, trade names and all copyright, ownership, proprietary and confidentiality notices included on or in relation to the Content are retained and displayed without alteration or modification and not in any manner obscured or removed.
Users are further required, as a condition of this Content License, to clearly and expressly attribute Emily Smith Coaching as the Content’s source.
Users acknowledge that they do not acquire any ownership rights or rights to use the Content except where explicitly permitted to do so. In the event Emily Smith Coaching revokes the Content License, users may no longer use the Content.
Changes to the Services
We may change any aspect of the Emily Smith Coaching Service on written notice to you. These changes may include discontinuing aspects of the Emily Smith Coaching Service or the Emily Smith Coaching Service in its entirety. In the event we do make any changes to any aspect of the Emily Smith Coaching Service, we will publish updated Emily Smith Coaching Service information which shall detail the –
- proposed changes to the Emily Smith Coaching Service; and
- the date on which these proposed changes shall be implemented.
Changes to the Emily Smith Coaching Service may, at our sole discretion, require consequential changes to fees payable for and delivery timeframes applicable to the aspects of the Emily Smith Coaching Service affected by the changes. We will similarly notify you of any such changes to fees payable or delivery timeframes.
Subscription fees are payable in advance. By purchasing a Subscription, you authorize us to charge your payment method immediately and on a pre-pay basis for the Subscription period indicated. We may, in our sole discretion, suspend any aspect of the Emily Smith Coaching Service which you have not paid for.
To the extent permitted by law, or unless explicitly stated otherwise, all fees are exclusive of applicable federal, provincial, state, local or other governmental sales, value-added, goods and services, harmonized or other taxes, fees, or charges now in force or enacted in the future. You are responsible for payment of all applicable taxes relating to your use of our Services, your payments, or your purchases. If we are obligated to pay or collect taxes on the fees you’ve paid or will pay, you are responsible for such taxes, and we may collect payment for such taxes.
To avoid a potential disruption to your Subscriptions, we offer automatic renewal, and it is enabled by default for all purchases. Unless you notify Emily Smith Coaching before the end of the applicable Subscription period that you want to cancel, your Subscription will automatically renew, and you authorize us to collect the then-applicable monthly or annual fee (which may change) for such Subscription (as well as any taxes that Emily Smith Coaching has the legal obligation to collect or pay) using any credit card or other payment mechanism we have on record for you. To cancel, you can remove your credit card from the My Account page.
You may claim a refund of any fees you have paid for any annual Subscription within 1 month of your purchase. Your use of the Emily Smith Coaching Service you are claiming a refund for may be terminated when you are refunded.
Without detracting from any of our rights, you agree that we are entitled to discontinue any aspect of the Subscription you may be using if you fail to pay any amount when it falls due or if you breach these Use Terms. In the event we incur expenses to recover amounts you owe us, you further agree that we may recover our legal costs on the attorney and own client scale, collection charges and tracing fees, and any applicable VAT.
You may be required to register on the Website in order to make use of the Emily Smith Coaching Service. Once registered, you will be able to log into your account using your chosen usernames and passwords.
You may not impersonate another person and you are required to associate your real identity with your account.
You agree that we may deny you use of the Emily Smith Coaching Service should you breach your warranty or subsequently be found to have breached this warranty. We may take steps to verify your personal information once you have completed the requisite registration process for the Emily Smith Coaching Service and these steps may include, and are not limited to, email verification. You agree to submit to this verification process and irrevocably consent to us gaining access to relevant information held by 3rd Parties which may be reasonably required to complete the verification process. You acknowledge and agree that your access to the Emily Smith Coaching may be limited until this verification process has been successfully completed.
Should you not agree to our verification process or withhold your consent to us processing your personal information, your Emily Smith Coaching Service use may be suspended or terminated.
Without limiting our liability limitation provisions below, you waive any claims you may have against us or our Associates in the event we deny you use of the Emily Smith Coaching Service where you have breached these Use Terms or otherwise failed to fulfill your obligations to Emily Smith Coaching.
Passwords and Account Security
You agree that the security of their Emily Smith Coaching Service user account is solely your responsibility. You further agree that:
- you are responsible for maintaining and promptly updating personal information and any other information you submit to us, keeping it accurate, current and complete;
- if you believe your Emily Smith Coaching Service user account’s security or integrity has been compromised in any way, you agree to notify us immediately and that you will be liable for any Losses you suffer should you fail to notify us timeously;
- we reserve the right to suspend your Emily Smith Coaching Service pending an investigation and resolution if any security violations are believed to have occurred in association with your Emily Smith Coaching Services user account.
Except as expressly set out in these Use Terms, we do not make any representation or give any warranties whatsoever with respect to the Emily Smith Coaching Service.
You represent and warrant that your use of the Emily Smith Coaching Service:
- Will be in strict accordance with these Use Terms;
- Will comply with all applicable laws and regulations (including, without limitation, all applicable laws regarding online conduct and acceptable content, privacy, data protection, and the transmission of technical data exported from the United States or the country in which you reside);
- Will not use the Emily Smith Coaching Service for any unlawful purposes, to sell products unlawfully, or in furtherance of illegal activities;
Will not infringe or misappropriate the intellectual property rights of any third party;
- Will not overburden our systems, as determined by us in our sole discretion;
- Will not disclose sensitive personal information of others;
- Will not be used to send spam or bulk unsolicited messages;
- Will not interfere with, disrupt, or attack any service or network; and
- Will not be used to create, distribute, or enable material that is – or that facilitates or operates in conjunction with – malware, spyware, adware, or other malicious programs or code.
If you are not, factually or legally, authorized to bind another person as our Customer to these Use Terms, you agree that you will be personally liable to Emily Smith Coaching for any amounts due to us in terms of these Use Terms or otherwise as a consequence of using the Emily Smith Coaching Service in the event the legal entity concerned refuses or fails to pay any amounts which are due to us and as if you contracted with us for your personal Emily Smith Coaching Service use.
Disclaimers and Limitation of Liability
To the fullest extent permissible by law, we disclaim all warranties of any kind, whether express or implied in respect of the Emily Smith Coaching Service and you use the Emily Smith Coaching Service at your own risk.
You agree that neither we or our Associates shall be liable for any Losses which you may sustain however arising and whatever the cause, in particular pursuant to your or any 3rd Party’s use of, access to and/or interference with the Emily Smith Coaching Service.
You also agree that our liability to you pursuant to these Use Terms shall furthermore be limited to the total amount of the fees you paid for your Emily Smith Coaching Service use.
You agree to indemnify and hold harmless Emily Smith Coaching Holdings, Inc., its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all losses, liabilities, demands, damages, costs, claims, and expenses, including attorneys’ fees, arising out of or related to your use of our Services, including but not limited to your violation of the Agreement, Content that you post, and any ecommerce activities conducted through your or another user’s website.
Maintenance and Repair
You acknowledge that from time to time the Emily Smith Coaching Service may be suspended, either in part or as a whole, for maintenance, repair and improvements. We agree, wherever reasonably possible, to give twenty-four (24) hours notice of suspension of the Emily Smith Coaching Service affected by the proposed suspension.
Save as set out elsewhere in these Use Terms, we shall not be liable for any Losses which may be sustained as a result of the suspension of the Emily Smith Coaching Service.
If any person is of the view that his, her or its rights have been infringed through unlawful Emily Smith Coaching Service use by any person, that person may address a complaint to Emily Smith Coaching which satisfies the following requirements and/or sets out the following information:
- the full names and address of the complainant;
- the written or electronic signature of the complainant;
- identification of the right that has allegedly been infringed;
- identification of the material or activity that is claimed to be the subject of unlawful activity;
- the remedial action required to be taken by Emily Smith Coaching in respect of the complaint;
- telephonic and electronic contact details, if any, of the complainant;
- a statement that the complainant is acting in good faith;
- a statement by the complainant that the information in the take-down notification is to his or her knowledge true and correct.
Notifications must be addressed to:
Emily Smith Coaching Abuse
We will investigate the complaint on receipt of a complete and properly formulated complaint notice and will take appropriate action, where necessary. Such action may include, but is not limited to, removing offending Content and/or taking appropriate steps against offending users or Customers, where appropriate. We may not be able to, or it may not be appropriate for us to, respond to or act on every complaint.
Subject to any other provision of these Use Terms providing for the remedy of any breach of any provision of these Use Terms, should either Party (“the Offending Party”) commit a breach of any provision of these Use Terms and fail to remedy such breach within 10 days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to:
- Cancel these Use Terms, provided the breach in question is a material breach going to the root of these Use Terms; or
- Claim specific performance of all of the Offending Party’s obligations whether or not due for performance
in either event without prejudice to the Aggrieved Party’s right to claim damages.
We reserve the right to terminate your use of and access to the Emily Smith Coaching Service if we determine in our sole discretion that your use violates these Use Terms.
Either Party shall be entitled to summarily terminate these Use Terms in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of these Use Terms shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.
Governing Law and Jurisdiction
Arbitration taking place in the City of Columbus and County of Franklin shall be the exclusive dispute resolution process used by the parties hereto and shall conform to the Rules and Procedure laid down by the American Arbitration Association. Each of the parties hereby knowingly, voluntarily, and intentionally waives any right it may have to a trial by jury or class action in respect of any litigation. Before filing an arbitration demand, you agree to provide written notice to Emily Smith Coaching of your dispute. Once we receive notice of your dispute, we will attempt to resolve it within 60 days. You agree to wait until after this 60-day resolution period before filing an arbitration demand. The Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio, without regard to its conflict of law provisions. The proper venue for any disputes arising out of or relating to the Agreement and any access to or use of our Services shall be the state and federal courts located in Franklin County, Ohio. Judgment on any arbitration award may be entered in any court in Franklin County, Ohio that has jurisdiction over the matter as provided in the Agreement. Costs of arbitration, including lawyers’ fees, will be allocated by the arbitrator. This agreement to arbitrate shall survive the termination of these Use Terms.
You acknowledge that, from time to time, the Emily Smith Coaching Service may be suspended due to causes beyond our control which we refer to as Interruption Events.
You agree that we will be relieved of our obligations in terms of these Use Terms during the period that the Interruption Event and its consequences continue, only to the extent we are reasonably prevented from fulfilling our obligations, and we shall not be liable for any Losses which you may suffer as a result.
We will make reasonable efforts to notify you of an Interruption Event in writing as soon as we become reasonably aware of the Interruption Event.
In the event that an Interruption Event exceeds 2 calendar months and in the event that neither we or our nominee are able to provide alternative services and/or facilities, either you or we may terminate these Use Terms and shall only remain liable for performance under these Use Terms which fell due immediately prior to the Interruption Event.
By users or you
Users or, where appropriate, you shall not be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these Use Terms except with our prior written consent. We will not unreasonably withhold our consent.
By Emily Smith Coaching
We are entitled to cede, delegate, assign or otherwise transfer all or any of our rights, interests or obligations under and/or in terms of these Use Terms subject to us giving you reasonable written notice to that effect.
If any court which has jurisdiction finds any clause or term of these Use Terms to be unenforceable, then the Parties agree that the remaining terms and provisions of these Use Terms shall be deemed to be severable from the unenforceable provisions and shall continue in full force and effect unless such unenforceability goes to the root of these Use Terms, in which case these Use Terms shall terminate.
These Use Terms, as read with the documents referenced in these Use Terms, constitute the sole record of the agreement between the Parties in regard to its subject matter.
No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded in these Use Terms.
No addition to, variation or consensual cancellation of these Use Terms, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of all the Parties.
No data message, including an e-mail, SMS and recorded voice message, which you send to us shall amend these Use Terms or the rights and duties of the Parties in any manner unless the Parties expressly state, and specify the extent to which, the data message amends these Use Terms or the Parties’ rights and duties in any material respect.
No indulgence which any of the Parties (“the Grantor”) may grant to any other (“the Grantee(s)”) shall constitute a waiver of any of the Grantor’s rights, who shall not be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future.
The Parties undertake at all times to take all reasonable steps to implement and comply with these Use Terms.
In these Use Terms, headings are for convenience and are not intended to be used to interpret the Use Terms.
If the Use Terms refers to a Party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Use Terms will also be applicable to and binding on that Party’s liquidator or trustee, as the case may be.
Unless these Use Terms indicates to the contrary, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Use Terms, shall not apply.
Where in these Use Terms provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such Use Terms or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
All annexures, addenda and amendments to these Use Terms form an integral part of these Use Terms and, therefore, our contract with you.
The words and phrases in the Glossary and, where appropriate, elsewhere in these Use Terms bear the meanings assigned to them and related expressions bear corresponding meanings.
“3rd Party” means a person other than Emily Smith Coaching and a Customer;
“Associates” means a Party’s officers, servants, agents or contractors or other persons in respect of whose actions that Party may be held to be vicariously liable;
“Content” means any material capable of and in which copyright protection subsists (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) including, but not limited to, what a Customer may have access to as part of, or through the Customer’s Service use;
“Content License” means a personal, revocable, worldwide, royalty-free, non-commercial, non-transferrable and non-exclusive licence to use our Content either on or through the Service through a generally available web browser, mobile device or application solely for the purpose of enabling users to use the Service, in the manner permitted by these Use Terms and does not extend to scraping, spidering, crawling or other technology or software used to access data without our express written consent;
“Customer” means the person contracting with us to use the Emily Smith Coaching Service subject to these Use Terms and is either:
- you, personally, if you are contracting with us in your personal capacity; or
- a legal entity such as a company or close corporation you represent, in which case you:
- represent to us that you are authorized by that legal entity to enter into this contract on that legal entity’s behalf; and
- agree that when we refer to “you” in these Use Terms, we are referring to the legal entity you represent with you as its authorized representative;
“GPL” means the GNU General Public License, version 2 (or later) from the Free Software Foundation;
“Intellectual Property” means any know-how (not in the public domain), invention (whether or not patented), design, trade mark (whether or not registered), or material capable of copyright protection and in which copyright subsists (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property;
“Intellectual Property Rights” means legal or moral rights in Intellectual Property;
“Interruption Event” means strike, lock-out, fire, explosion, floods, riot, war, accident, act of nature, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of the Party concerned;
“Interrupted Party” means a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Use Terms by reason of an Interruption Event;
“Losses” means all losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);
“Parties” means Emily Smith Coaching and the Customer;
“Products” means the Emily Smith Coaching web hosting and maintenance plans, plugins, themes and extensions which are made available through the Website and which are described in the Website;
“Subscription” means any Emily Smith Coaching Service that is offered on a recurring basis for a designated period, whether free or paid.
“Support Service” means our Product support and services described on the Website;
“use” bears its ordinary meaning and when used in the context of:
- the Website, means to visit or load the Website in a web browser, mobile phone or similar software application or device or otherwise engage with the Website;
- Products or Content, means to copy, download, distribute, display, view, modify, adapt, load in a web browser, mobile phone, software application or device or to otherwise engage with and/or manipulate the Products;
“user” means a person who is not a Customer and who uses the Emily Smith Coaching Service or the Website;
“Use Terms” means these terms and conditions, as amended from time to time;
“VAT” means Value-Added Tax;
“Website” means the Emily Smith Coaching website located at https://emilysmithcoaching.com or such other websites as may be associated with and controlled by Emily Smith Coaching from time to time;
“Emily Smith Coaching”, “us”, “we” and “our” means or refers to Emily Smith Coaching, an Ohio-based corporation.
“Emily Smith Coaching Service” means the Content, Products and Support Service, as defined in these Use Terms, either collectively or in any combination.