Introduction

1.              Thank you for your interest in the Visual Merchandising Bootcamp (Program), owned and provided by Design Merchants Pty Ltd ATF J L Borshoff Trust  (ABN: 70 208 007 879 ) (we, us, our).

2.              By purchasing and participating in the Program, you (the purchaser, in your individual capacity or on behalf of a company or other legal entity) agree to be bound by these terms and conditions as set out below (terms). Please read these terms carefully before finalising your purchase, as they will become legally binding on you and us once your purchase is complete.

3.              In the event that you are purchasing this Program on behalf of a company or other legal entity, you represent and warrant to us that you have the authority to purchase the Program and agree to these terms on its behalf.

Incorporation of Website Terms of Use, Privacy Policy & Returns Policy

4.              These terms include and incorporate our Website Terms of Use , Privacy Policy , and Returns Policy as if they are set out below. These terms shall prevail to the extent of any inconsistency between these terms and those policies.

Services

5.              By purchasing the Program, you engage us on a non-exclusive basis to provide you with the Program Inclusions in accordance with these terms.

6.              Our Program is hosted on Kajabi (Platform). In order to access the Program, you will be required to (and agree to) create an account on the Platform, and maintain it in order to retain access for the life of the Program.

7.              Once you have purchased the Program, you will receive an email providing you with access to the Program via a link. In the event that there are any issues with accessing the Program, please email us at hello@designmerchants.com.au so that we may promptly assist you with any access issues.

Program Inclusions

8.              By purchasing the Program, you will be purchasing and receiving the products and/or services described on our website, at https://designmerchants.mykajabi.com/Visual-Merchandising-Bootcamp, being:

(a)             5 online, pre-recorded modules covering:

(i)          Main elements of visual merchandising.

(ii)        Visual merchandising design principles.

(iii)       Common rules and standards relating to visual merchandising.

(iv)       Step by step method to creating a visual merchandising display.

(v)        Tutorials applying the visual merchandising methods to a variety of different displays and products.

(b)            Worksheets and other downloadable resources to support your learning, including (and subject to change in our absolute discretion without notice to you):

(i)          Visual Merchandising Overview Factsheet;

(ii)        Colour Wheel Factsheet;

(iii)       Guide for Symmetrical Pyramid Groupings;

(iv)       Guide for Asymmetrical Pyramid Groupings;

(v)        Style Guide;

(vi)       Visual Merchandise Manual Framework;

(vii)      Checklists;

(viii)     Display Rules Factsheet;

(ix)       Worksheet for creating a display;

(x)         Top 10 Visual Merchandising Tips;

(xi)       Window Planner Template.

(Program Inclusions)

Program Bonuses

9.              The Program includes a bonus access to an exclusive Facebook group for Program participants for the purpose of sharing displays, asking questions and otherwise discussing the Program and Program modules (Program Bonuses).

Nature of Relationship

10.           You agree and understand that the Program is intended to teach you about visual merchandising design rules, standards and concepts, and that the implementation and success of those rules, standards and concepts are ultimately your responsibility.

11.           You understand and agree that:

(a)            the Program addresses visual design concepts and provides example tutorials for various businesses selling tangible goods which are transferable across many industries. However, the Program does not cover all possible industries, and a tutorial may not be available on your specific industry or business niche;

(b)            parts of the Program may include discussions about business financials and budgeting for visual merchandising. Those parts of the Program and any information exchanged is not intended to, and does not, substitute or replace discussions and consultations with relevant professionals (including, but not limited to accountants, financial advisors and other professionals) and your reliance on that information is solely at your own risk;

(c)            all financial decisions, whether personal or in relation to your business, should be made with your relevant financial or business advisors and professionals, at your own risk.

12.           Nothing in these terms, or the Program, creates or is intended to create a relationship of employer/employee, principal and agent, partnership or joint venture between you and us.

Pricing & Payment

13.           The purchase price you have paid at checkout relates only to the Program Inclusions, and not the Program Bonuses. As such, any failure on our part to provide the Program Bonuses, or if we modify or amend them from time to time, will not constitute a breach of these terms.

14.           In the event that you request additional products or services from us, whether relating to the Program or not, or to modify or extend any part or all of the Program, we will provide you with a separate estimate of fees for the further or modified services, for your approval and payment, and these terms will continue to apply to those services unless specified otherwise.

15.           All amounts payable for the purchase of the Program must be paid without set-off, deduction, withholding, or otherwise any claim (unless required by law).

16.           If you are required by law to make a deduction or withholding in respect of any sum payable towards the purchase of the Program, you must make an additional payment to us equal to the sum necessary to ensure that the amount received by us will equal the full amount payable to at the time of purchase.

17.           All amounts payable by you to us are inclusive of GST.

Refunds

18.           Purchase of the Program is subject to our returns policy, which can be read here . As access to the Program and all Program Inclusions is made available to you digitally, immediately on purchase, no refunds will be made unless required by Australian Consumer Law.

Termination

19.           Where you purchase the Program on a payment plan, and fail to pay any money payable under these terms as and when it becomes payable, we may in our absolute discretion take any or a combination of the following steps:

(a)             Apply interest at the Default Rate per annum, calculated on a daily basis from the due date until paid in full, to any outstanding amounts, which you must pay to us on top of the principal amount owed; and

(b)            Remove your access to and/or restrict or prohibit your participation in the Program until all outstanding amounts are paid in full; and

You release us from any liability arising from us taking any of the above steps and agree that by properly taking those steps we are not in breach of these terms.

20.           Where an event occurs which results in us not being able to fulfil our obligations under these terms,  you agree that our liability to you is limited to the fullest extent permitted at law to the last payment made by you to us towards the purchase of the Program.

Breach & Dispute Resolution

21.           In the event of a breach, dispute or disagreement arising out of or in connection with these terms, and before commencing any legal action or other formal dispute resolution proceedings:

(a)            The party alleging that there is a breach, dispute or disagreement (Disputing Party) must notify the other party (Responding Party) in writing to their email address within 7 business days of the breach, dispute or disagreement arising, of:

(i)          what they perceive to be the substance of the breach, dispute or disagreement;

(ii)         if applicable, the clause of these terms which has been breached or is subject of the dispute or disagreement; and

(iii)        what they propose as a resolution.

(Dispute Notice)

(b)           The Responding Party must provide a response to the Dispute Notice within 7 business days of receiving it via email setting out their proposed resolution.

(c)            The parties must negotiate and discuss possible resolutions in good faith.

22.           If the dispute remains unresolved after 28 business days of the Dispute Notice being issued:

(a)             the Disputing Party must refer the matter to the WA Small Business Development Corporation – Dispute Resolution Service, and seek a mediation (including doing all things, taking all steps and making all payments necessary to progress the complaint to a mediation).

(b)            The parties must cooperate in good faith and do all things necessary (including sign and submit any paperwork), to the best of their ability, in the WA Small Business Development Corporation process to progress the matter to a mediation in Western Australia.

23.           You shall be responsible for the payment of any of our legal, mediation and other costs (on a full indemnity basis, including solicitor-client costs) associated with any dispute arising out of or in connection with these terms, and agree to reimburse us for any costs paid by us in complying with this clause and/or these terms, enforcing our rights under these terms, and responding to any Dispute Notice or Claim brought by you in connection with these terms.

24.           Without limiting either party’s right to seek urgent injunctive or declaratory relief, neither party may commence court proceedings in any jurisdiction until this term has been complied with and the mediation process is complete.

25.           You agree to receive notices under this clause and otherwise under these terms to the email address entered on our website at the time of purchasing the Program. Our contact email address for the purpose of receiving notice relating to the Program and these terms is hello@designmerchants.com.au.

Limitation of Liability & Indemnity

26.           Australian Law may confer rights, warranties and guarantees and remedies relating to the provision of the Program which cannot be excluded, restricted or modified, including but not limited to the Australian Consumer Law and other statutes. At no time are these statutory rights which cannot be excluded, sought to be excluded.

27.           You agree we are not liable for any Losses or damage whether direct, indirect or consequential which you may suffer in reliance directly or indirectly on all or any part of the Program.

28.           You indemnify and hold us harmless from and against any and all Claims, liabilities, proceedings or demands which may be brought against us in respect of any Losses, death, injury, illness or damage (whether personal or property and including reasonable legal fees and expenses).

29.           You agree to indemnify us for any costs we may incur in connection with the enforcement of our rights under terms (including all legal fees on a solicitor-client basis, court fees, and all other expenses incurred in connection with enforcing our rights under these terms).

30.           Our liability is governed by these terms and conditions, and any other conditions or warranties which may be implied by custom, law or statute are expressly excluded to the fullest extent permitted by law.

31.           You release us from any and all liability in respect of:

(a)         Our failure to provide any part of the Program which is to be provided by third parties (such as guest coaches or other participants);

(b)        the information, recommendations, opinions, advice shared by third parties within the Program (such as guest coaches and/or other participants); and

(c)         your implementation or reliance on any advice, opinion, recommendation, information shared by third parties participating in the Program (such as guest coaches and/or other participants), and any direct or indirect results arising from that reliance or implementation.

32.           Our liability is limited at all times to the amount of the last invoice paid by you towards the purchase of the Program.

33.           To the maximum extent permitted by law, we expressly exclude liability for any damage and/or delay in the performance of any obligation pursuant to these terms where such damage or delay is caused by circumstances beyond our reasonable control.

34.           Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full.

Warranties & Acknowledgements

35.           You represent and warrant that you:

(a)         are over 18 years of age;

(b)        will provide all relevant information required for us to provide you with the products and services forming part of the Program;

(c)         have the legal capacity to enter into a legally binding contract;

(d)        have read these terms;

(e)        agree to the terms; and

(f)         will comply with these terms.

36.           Where you use a credit card, you warrant that you have the necessary rights and authority to use that credit card.

37.           You authorise us to automatically charge the credit card on file for any and all payment balances owed and agree to keep all billing information current at all times.’

38.           Where you fail to make payment or payment is declined for any reason, we may revoke your access to the Program, without refund.

39.           When making payments to us, you warrant that you have read the terms and conditions of any third party payment gateway provider or credit provider (i.e. Paypal, Square, Stripe, Wix) which are available on the credit provider's website.

40.           When signing up for the Program, you warrant that you have read the terms and conditions of any third party website on which the Program is being hosted (i.e. Teachable, Thinkific, Kajabi etc.) and that you will abide by those terms and conditions.

41.           Where any part of the Program includes access to a private group established by us, you represent and warrant that you:

(a)         Have read, agree to and will abide by, the terms and conditions of the platform on which the group is hosted (i.e. Facebook terms and conditions).

(b)        Have read, agree to and will follow the rules of that group and not post (amongst other things) any offensive, defamatory or discriminatory materials.

(c)         Release us from any and all liability and/or Claims arising out of or in connection with materials posted in that group by other members which may be offensive, discriminatory, defamatory, or cause you Losses and/or damage.

(d)        Indemnify us and hold us harmless for any liability and/or Claims arising out of or in connection with materials posted by you in that group.

42.           You acknowledge that any breach of the third party terms and conditions referred to in clauses 39, 40 and 41(a) above may result in your removal from the relevant platform, by the relevant platform, and that we shall not be responsible for any such removal nor required to reinstate or facilitate your return.

43.           You acknowledge and agree that:

(a)        You are solely responsible for creating and implementing your own decisions, choices, actions and results, and that the Program does not guarantee completed visual merchandising designs, increased sales, business performance or customer conversion.

(b)        Performance, progress, results and success of your visual merchandising in your business is your responsibility.

(c)         We are not and will not be liable or responsible for any action or inaction, or for any direct or indirect result of any action taken or decision made by you as a result of the Program.

(d)        We may offer opinion regarding visual merchandising designs and business merchandising decisions but it is your responsibility to make final decisions and choose the best option for yourself or the entity you represent.

(e)        It is your responsibility to ensure that you have the facilities necessary (such as internet, computer etc.), and take the necessary steps, to receive and participate in the Program.

Confidentiality

44.           We agree to take all reasonable steps to maintain all Confidential Information, information and documentation received from you (whether oral, hardcopy or softcopy), confidential unless disclosure is authorised in writing by you, otherwise required by law, or in accordance with these terms.

45.           You acknowledge that the information and documentation provided during the course of the Program is not covered by any healthcare provider/patient privilege, legal privilege or other privilege, and may be provided to our employees, agents, representatives and associates who have a need to view the information in the proper and usual course of our business.

46.           Confidential Information does not include information which:

(a)         was in our possession prior to your purchase of the Program;

(b)        is or becomes generally known to the public;

(c)         is provided to us by a third party;

(d)        we are required to disclose by law or Court order;

(e)        is disclosed to us and we reasonably believe there to be an imminent or likely risk of danger or harm to you or others; and

(f)         involves illegal activity.

47.           You agree to maintain all Confidential Information, including documents, resources provided or disclosed by us, relating to the services, our business or personal affairs of our employees, agents, representatives or associates, confidential and must not share, sell, reproduce or use for any purpose other than as authorised, without our prior authorisation.

48.           In the event that we or you become aware of any potential breach of confidentiality, we must notify each other as soon as reasonably practical and take steps to remedy any breaches.

49.           You agree that you are responsible for, and liable to us in respect of, the actions or omissions of any and all of your representatives in relation to the Confidential Information as if they were your actions or omissions.

50.           Nothing in these terms prevents us from disclosing non-confidential information of the nature specified in these terms to third parties.

Non-Disparagement

51.           You must not:

(a)         communicate in any way (directly or indirectly, in any capacity or manner) any statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, us, our Representatives or any other party included in the Program; or

(b)        cause, encourage or permit any other person to do so.

Intellectual Property & Copyright

52.           During the length of the Program, we will share with you Intellectual Property owned by us. Your participation in the Program, and our sharing of the Intellectual Property with you, does not grant or transfer any rights, title or interest to you in relation to the Intellectual Property, unless otherwise specified in these terms.

53.           You may not modify, publish, transmit, participate in the transfer or sale of, create derivative works from, distribute, display, reproduce or perform, or in any way exploit in any format whatsoever Intellectual Property, in whole or in part without our prior written consent. We reserve the right to immediately remove your access to the Program and related member groups, without refund, if you violate these terms.

54.           As parts of the Program are made available to you electronically and for replay, we grant you a limited, personal, non-exclusive, non-transferable license to use the Program recordings for your own personal and internal business use. You acknowledge and agree that you have no right to change, edit, duplicate, reproduce, create derivative works of, reverse engineer, alter, sell, enhance or in any way exploit any of the recordings in any manner.

55.           You will not remove any copyright notice from any digital product provided as part of the Program and doing so will be deemed an infringement of our intellectual property rights.

56.           No Intellectual Property may be reproduced or used for any purpose other than your private business use, as intended by the Program.

Non-Solicitation

57.           For the purposes of this clause, Term means:

(a)         2 years; or (if that term is held to be invalid)

(b)        1 year; or (if that term is held to be invalid)

(c)         6 months.

58.           For the length of the Term, you must not without our prior consent (which may be withheld in its absolute discretion), after the conclusion of the Program, directly or indirectly:

(a)         interfere with or disrupt, or attempt to interfere with or disrupt, any relationship between us and our clients, suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or

(b)        induce, encourage or solicit any of our clients, officers, employees, contractors or agents to cease their employment, engagement or agency with it.

59.           You acknowledge and agree that:

(a)         the restraints in clause 57 constitute several separate covenants and restraints consisting of each of clauses 57(a) and (b) combined with each separate Term, following the conclusion of the Program;

(b)        each of those separate covenants and restraints is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect our goodwill and business;

(c)         you have received substantial and valuable consideration for each of those separate covenants and restraints, including your access to the Program Inclusions; and

(d)        breach by you of any of those separate covenants and restraints would be unfair and calculated to damage our goodwill and business and would lead to substantial loss to us.

60.           The parties intend the covenants and restraints under clause 57 to operate to the maximum extent.  If any of those separate covenants and restraints would, in the absence of this clause 60, be void as unreasonable for the protection of our interests but would not be so void if any part of the wording in clauses 57 to 59 was deleted or amended, the separate covenants and restraints will apply with the modifications necessary to make them effective.

Waiver

61.           No failure, delay or indulgence by a party in exercising any power or right conferred upon it under these terms will operate as a waiver of that power or right.

62.           No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under these terms.

Amendment

63.           You agree to be bound by these terms as at present and varied by us from time to time.

Severability

64.           If any part of these terms is deemed invalid or unenforceable:

(a)         that provision may be severed to the extent of the invalidity or unenforceability; and

(b)        the remaining provisions of these terms remain unaffected, valid and enforceable.

Governing Law

65.           Any disputes or Claims arising out of or in connection with the Program or these terms (including non-contractual disputes or Claims) are governed by, and shall be construed in accordance with, the laws of Western Australia, Australia.

66.           You irrevocably agree that the courts of Western Australia, Australia have exclusive jurisdiction to deal with and settle any dispute or Claim that arises out of, or in connection with, the Program and/or these terms, or its subject matter or formation (including non-contractual disputes or Claims).

Entire Agreement

67.           These terms contain the entire understanding between you and us in relation to Program and supersede any previous arrangement, understanding or agreement relating to its subject matter.

68.           No express or implied conditions, warranties, promises, representations or obligations, written or oral, apply in relation to the Program or these terms, other than those expressly stated in it or implied at statute.

69.           Your purchase of the Program constitutes acceptance of these terms and you acknowledge they will become legally binding on you and us.

Definitions

70.           The following definitions apply in these terms unless the context requires otherwise:

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Perth, Western Australia are open for business.

Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).

Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:

a)     any information that is specifically designated by any of them as confidential;

b)     any information which, by its nature, may reasonably be regarded as confidential;

c)     any information relating to any:

(i)     agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;

(ii)   customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or

(iii)  Intellectual Property Rights,

of any of them; and

d)     any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information.

Default Rate means a rate of interest of 10.00% per annum.

GST has the same meaning given to that expression in the GST Law.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

GST Law has the same meaning given to that expression in the GST Act.

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:

(a)   liabilities on account of Tax;

(b)   interest and other amounts payable to third parties;

(c)    legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and

(d)   all amounts paid in settlement of any Claim.

Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.

Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.

Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).

Tax or Taxation means:

(a)   any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);

(b)   unless the context otherwise requires, Stamp Duty and GST; and

(c)    any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.

Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.

Interpretation

71.           The following rules of interpretation apply in this agreement unless the context requires otherwise:

(a)     headings in this agreement are for convenience only and do not affect its interpretation or construction;

(b)     no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;

(c)     where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(d)     a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;

(e)     references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;

(f)      in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;

(g)     a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(h)     an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;

(i)      a reference to writing includes any communication sent by post, facsimile or email;

(j)      a reference to time refers to time in Perth, Western Australia and time is of the essence;

(k)     all monetary amounts are in Australian currency;

(l)      a reference to a “liability” includes a present, prospective, future or contingent liability;

(m)   the word “month” means calendar month and the word “year” means 12 calendar months;

(n)     the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;

(o)     a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;

(p)     a reference to any thing is a reference to the whole and each part of it;

(q)     a reference to a group of persons is a reference to all of them collectively and to each of them individually;

(r)      words in the singular include the plural and vice versa; and

(s)      a reference to one gender includes a reference to the other genders.

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