Terms of Service

1. Your Acceptance

The following terms and conditions relate to the provision of any services or sale of products (including online programs, physical products or downloadable material) from the Brooke Kelly Nutrition website (www.brookekellynutrition.com) or, any other platform and use of and participation in the online community as set out in these terms and conditions (Site, Programs, Services, Terms and Conditions). These Terms and Conditions are between the company Brooke Kelly Pty Ltd (ABN 95 848 213 741) (Brooke Kelly Pty Ltd, us, we, our), the owner and operator of the Site and any Services, and you (you, your or user(s)), a user of the Site and/or Services (Agreement).

By using our Site, participating in any Program or any Services you agree to be bound by this Agreement, our Terms and Conditions and our Privacy Policy. We may amend this Agreement, our Website Terms of Use or our Privacy Policy and will notify you if we do so, in accordance with clause 13 of these Terms and Conditions. If you do not agree to the Terms and Conditions contained in this Agreement or our Privacy Policy (or any subsequent amendments) you must cease using our Site and Services immediately.

Users must be 18 years or older to purchase any of our products, Programs or Services.

1. Requirement to Obtain Professional Medical Advice

You understand and accept that:

All content on our Site is for informational and educational purposes only.
No therapeutic relationship is created by entering into this agreement.
No statements appearing on our Site or in our Services have been evaluated by any other national or international agencies.
None of the content or products offered on our Site are meant to diagnose, treat, alleviate or relieve any medical or health conditions, nor to guarantee any particular outcome or results.
The products and content found on the Site are not intended as a substitute for the advice provided by your doctor or other healthcare professional.
You should always speak with your doctor or other healthcare professional before adopting any treatment for a health problem or before adopting any new fitness or dietary regime or using any of our Services.
If you have or suspect that you have a medical problem, or if you have a pre-existing medical condition, you should contact your health care provider before using our Services.
Never disregard, avoid, or delay obtaining medical advice from your doctor or other qualified healthcare provider because something you have read on our Site.
Please seek medical advice in regard to your health conditions and physical fitness.
If at any time you notice any unanticipated changes to your health (physical, mental or emotional), you should seek medical attention immediately.

2. Nutritional Information

Nutritional information provided on our Site is based on extensive research. Before relying on any nutritional information on our Site, you should carefully evaluate the accuracy, completeness and relevance of this information to your purposes and health particularities, and consider the need to obtain appropriate expert advice relevant to your circumstances. We do not give any warranty that the information is free from error or suitable for your purposes.

Persons with pre-existing medical conditions, or with any concerns as to commencement of any new nutritional program should consult with an appropriate healthcare professional before commencing any new nutritional Program. You are responsible for making your own inquiries and seeking independent advice from a healthcare professional before acting on any information or material made available to you through our Site. Our Programs or Services may not be suitable to your particular circumstances and is not a substitute for obtaining specific advice from a qualified healthcare professional.

You acknowledge that by participating in our Programs or Services you are doing so voluntarily and, depending on your particular circumstances, there may be risks to your health. You further acknowledge that these risks may be caused by your own acts or omissions, or those of other users of our Site, or may be risks that are not known to you or are not readily foreseeable at the time of using the information service. This is a risk warning pursuant to the Australian Consumer Law. You assume all risks in connection with your participation in our Programs or Services. To the extent permitted by law, we exclude any express or implied warranties of reasonable care and skill.

3. Use of Our Services

You are responsible for your use of our Site and Services, and for any use of our Site and Services made using your device(s). You also agree that your use of our Site and Services is for personal non-commercial use. You agree not to access, copy, or otherwise use our Site or Services, including our intellectual property and trademarks, except as permitted under these Terms of Use or as otherwise authorised in writing by us.

Licence

We make our Services available to you through our Site. When you use our Site or Services (including the downloading of any Program material), we grant you a personal, non-exclusive, revocable, limited license to use the relevant Service and access our Site. This means you may not re-sell our Services or Programs anywhere else or use for any commercial purpose, share your license to use our Services with anyone else, reverse engineer, decompile, modify or otherwise attempt to copy our Services (Licence).

This License may be terminated if you violate these Terms and Conditions or our Privacy Policy. Additionally, this Licence may be terminated if you engage in any activities that may reasonably cause loss or damage to us if your activities in connection with the use of the Site or Services are in violation of any applicable laws. If you do not agree to the terms of this Licence you must not use our Site or Services. You may terminate this Licence at any time by notifying us or ceasing to use our Services.

We reserve the right to refuse service, block or suspend any user of our Site or Services or social media pages, and to modify or remove any material uploaded, posted, transmitted or otherwise made available on the website by any user, without prior notice.
We are not responsible for, and accept no liability with respect to, any material uploaded, posted, transmitted or otherwise made available on the Site or our social media pages by any person other than us. We do not endorse any opinion, advice or statement made by any person other than us.

You agree to indemnify us and each of our officers, employees, agents, contractors, suppliers and licensors (Affiliates) in respect of any liability, loss or damages (including all legal and other costs on a full indemnity basis) suffered or incurred by them arising (in whole or part) out of the breach of or failure to comply with these Terms and Conditions, or any other negligent or wrongful act or omission in relation to the subject matter of these Terms and Conditions.

Our Site may contain links to or display the content of third parties (“Third Party Content”), including links to websites operated by other organisations and individuals (“Third Party Websites”). Third Party Content and Third Party Websites are not under our control. We do not endorse, approve or make any warranty or claim regarding Third Party Content, Third Party Websites or the products, services or information available on any Third Party Websites, or in respect of the owner or operator of a Third Party Websites or their conduct, including privacy compliance. If you use or rely upon Third Party Content or Third Party Websites, you do so solely at your own risk.

4. Intellectual Property

The design of our Site, Programs and Services along with all created text, templates, scripts, graphics, interactive features and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to us, subject to copyright and other intellectual property rights as applicable under law. “Brooke Kelly” is a registered business name, all rights reserved. We reserve all rights not expressly granted under these Terms and Conditions in and to the Site and Services. You agree to not engage in the use, copying, or distribution of anything contained within the Site or Services unless we have given express written permission.

By uploading, transmitting, posting or otherwise making available any material on a Site and any associated educational or social media platforms, including providing us with any comments, feedback, ideas or suggestions, you grant us a non-exclusive, worldwide, royalty-free, perpetual license to use, reproduce, edit and exploit the material in any form and for any purpose, and unconditionally waive all moral rights as defined by the Commonwealth Copyright Act 1968.

You understand and accept that any posts or comments shared on the Program platform or social media may be de-identified and used in marketing or promotional material.

You agree that the copyright in all downloadable content and Programs vests in us and that your use of any Programs downloaded from our Site are subject to the Licence rights granted to you in these Terms and Conditions.

5. Personal Information

We collect personal information from you as reasonably required to provide you with our Services, and in accordance with our Privacy Policy. This information may include your personal details such as name, email address and postcode together with certain health information; not limited to your age range, height, weight, medical history, medication and supplement use. We acknowledge and agree that this information is confidential and will be used for the purposes of the provision of our Services only, unless otherwise required by law as set out in our Privacy Policy.

You warrant the personal information and health information you provide us is truthful, accurate, current and complete to the best of your knowledge or belief. We accept no liability in the event you fail to provide us with personal information or health information that is truthful, accurate, current and complete.

By agreeing to the terms and conditions contained in this Agreement you agree to receive our email newsletter. You can unsubscribe at any time by emailing us at ‘sayhey@brookekellynutrition.com’ and ‘unsubscribe’ in your email’s subject.

6. User Accounts

We may assign you a username/password and account information in order to enable you to access and use certain areas of our Site or require you to set up your own account access using a username/password chosen by you (“Login”). Each time you use your Login, you will be deemed to be authorized to access and use our Site in a manner consistent with this Agreement. We have no obligation to investigate the authorization or source of any such access or use of our Site.

You are solely responsible for protecting the security and confidentiality of your Login and for all activities on our Site using that Login, including without limitation, all communications and transmissions and all obligations (including without limitation financial obligations) incurred on our Site through such access or use of your Login.

You must immediately notify us of any unauthorized use of your Login or any other breach or threatened breach of our Site’s security you may be aware of.

Termination

Any accounts or subscriptions offered on our Site or can be terminated at any time by emailing us at ‘sayhey@brookekellynutrition.com’ and ‘cancel my account’ in your email’s subject.

7. Payment

We use a secure online payment system.

In order to purchase any of our Services (including any products) you will be required to provide us with your credit card information. Please be aware that all credit card information may be shared with our Third Party payment processors such as Kajabi Payments/PayPal/Stripe. By purchasing through our Site, you agree that we may charge you the price listed at the checkout screen, and that any payments made via credit card may attract an additional percentage fee, as charged by the relevant merchant from time-to-time.

You warrant that the payment details and any related personal details you provide us are correct. We accept no liability in the event you fail to provide correct or incomplete payment or personal details or for any losses suffered as a result of the fraudulent or unauthorised use of credit cards.

The prices for Services provided under this Agreement will be as set out on our Site at the time you apply for the Services.All prices are in Australian Dollars unless otherwise stated, and inclusive of GST, and you agree that we may charge you GST as set out in the A New Tax System (Goods and Services Tax) Act 1999 (“GST Act”).

From time to time we may issue promotional or discount codes. These can be redeemed at checkout and are subject to the terms of issue stated by us in relation to each promotion or discount.

If you have any issues with payment do not hesitate to contact us at sayhey@brookekellynutrition.com.

All Services (including any goods) available from our Site are subject to consumer protections under the Australian Consumer Law.

8. Refunds and Cancellation

We do not offer exchanges or refunds for a simple change of mind, please ensure that you are selecting and ordering products that are suitable for you.

If you have completed the Program/ebooks and remain unsatisfied with your experience or results, we may provide you with a full or partial refund, at our discretion. However, you will need to demonstrate that you have completed the Program.

In the event of any defect with the Services that you have purchased on or through our Site, your remedies will be as prescribed under Australian Consumer Law and as set out in these Terms and Conditions, and our liability will be limited to replacement of the Services in question (where applicable), or refund to the value of those Services. If you believe any of the Services purchased on or through our Site contain a defect, you must notify us immediately by emailing us at sayhey@brookekellynutrition.com.

We do not provide refunds for payments already made unless required by the Australian Consumer Law.

9. Disclaimers

To the fullest extent permissible by applicable law, we hereby disclaim all warranties of any kind, either express or implied, including, any implied warranties with respect to the Services (including any products listed or purchased on or through our Site. Except for the purposes of Consumer Guarantees under the Australian Consumer Law (Consumer Guarantees), we expressly disclaim all liability for our Service, and for product defects or failures, claims that are due to your use of our Service or products, product misuse, abuse, product modification, improper product selection, non-compliance with any codes, or misappropriation. The foregoing exclusions of implied warranties do not apply to the extent prohibited by law. Please refer to your local laws for any such prohibitions.

With respect to any breach or failure to comply with any Consumer Guarantees under the Australian Consumer Law, we may replace any goods or supply equivalent goods, repair such goods, or pay for the cost of repair. For any services, we may resupply the service or pay for the service to be supplied again.

10. Limitations and Liability

(a) Notwithstanding any limitations or restrictions placed on this limitation of liability by the Consumer Act, we do not assume any responsibility or liability for any damages to you. In no event will we, or any of our respective officers, directors, employees, shareholders, Affiliates, agents, successors or assigns, nor any party involved in the creation, production or transmission of this Site or any Services offered, be liable to you or anyone else for any direct, indirect, special, punitive, incidental or consequential damages arising out of the use, inability to use, or the results of use of this Site, any web sites linked to this Site, or the materials, information or services contained on any or all such web sites, whether based on warranty, contract, tort or any other legal theory and whether or not advised of the possibility of such damages. The foregoing limitations of liability do not apply to the extent prohibited by law. Please refer to your local laws for any such prohibitions.

(b) For the purposes of the following clause, in addition to the defined terms above “Consequential Loss” means any loss or damage suffered by a party or any other person that is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of use, loss of interest, damage to credit rating or loss or denial of opportunity.

(i) any term, condition or warranty that may otherwise be implied by custom, law or statute;

(ii) any liability for loss caused by our negligence; and

(iii) any liability for Consequential Loss.

(d) To the extent permitted by law, our liability in respect of any breach of or failure to comply with any Consumer Guarantee is limited, at our option to any one or more of the following:

(i) In the case of goods, to:

(A) the replacement of the goods or the supply of equivalent goods;

(B) the repair of the goods;

(D) the payment of the cost of having the goods repaired.

(ii) In the case of services, to:

(A) the supplying of the services again; or

(B) the payment of the cost of having the services supplied again.
In the event of any problem with the Services (including any products) that you have purchased on or through this Site, you agree that your sole remedy is to seek a return and refund for such Services (including any products) in accordance with the returns and refunds policies posted on our Site.

(e) For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of this Agreement, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for:

(i) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or

(ii) fraudulent misrepresentation; or

(iii) any liability which it is not lawful to exclude either now or in the future.

If you are a resident of a jurisdiction that requires a specific statement regarding release then the following applies: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby waive any provision in law, regulation, or code that has the same intent or effect as the aforementioned release. Your ability to use our site is contingent on your agreement with this and all other sections of this Agreement. In the event that we may not limit our liability in your jurisdiction, you agree our total liability to you is not more than AUD$100 or the total amount you spent while using our Site, Services (and any products) within the last six months, whichever is greater.

11. Indemnity

You agree to defend, indemnify and hold harmless Brooke Kelly its officers, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:

your use of and access to our Site and Service;
your violation of any term or condition of this Agreement;
your violation of any third party right, including without limitation
any copyright, property, or privacy right; or
any claim that any of your use caused damage to a third party.

This indemnity will survive this Agreement and your use of our Services. You also agree that you have a duty to defend us against such claims and we may require you to pay for a solicitor of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable solicitor’s fees, court costs, and disbursements including in relation to the settlement of any claim.

12. Privacy

We comply with the Privacy Act 1988 (Cth) (“Privacy Act”) and the applicable Privacy Principles in the Privacy Act when handling personal information, together with the Health Records and Information Privacy Act 2002 (NSW)) (“HRIP Act”) and the applicable Health Privacy Principles in the HRIP Act when handling personal information which is health information.

Our Privacy Policy can be accessed at the end of these Terms and Conditions.

13. Choice of Law

This Agreement shall be governed by the laws in force in the state of New South Wales, Australia. The offer and acceptance of this contract is deemed to have occurred in New South Wales, Australia.

14. Amendments

We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Site and our Service.

15. General

(a) This Agreement constitutes the whole of the agreement between the parties. It supersedes and extinguishes any previous agreement or understanding between the parties about the subject matter of this Agreement and any representation or warranty previously given.

(b) If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, it is severed from this Agreement. Any reading down or severance does not affect the validity and enforceability of the remaining provisions in that jurisdiction or the validity and enforceability of the offending provision in any other jurisdiction.

(c) No failure by either party to exercise and no delay in exercising any right under this Agreement will be taken as a waiver of the right. No waiver of any right is effective unless made in writing. Waiver of any particular right does not in any way release the other party from strict compliance in the future with the same or any other obligation.

(d) The rights and remedies provided in this Agreement are cumulative and do not exclude any other rights provided by law.