This Agreement is between the You (“Student”) and Color Theory Design Co, LLC (“Company”) (collectively the “Parties”, or in the singular “Party”), for the purpose of Student purchasing and participating in the Company’s subscription membership program (the “Membership”) for a the period of time selected at checkout (the “Subscription Term”). This agreement applies to all Subscription Terms offered by Company (monthly, annual, 6-month, …). This Agreement shall become effective upon the date of Student completing the checkout process.
1. Scope of Membership
As part of the Membership program, Company shall provide the following to Student:
• Access to Flowering Minds content within Membership hosted on Kajabi
• Access to Private Flowering Minds Facebook Community
2. Membership Terms
After purchasing the Membership, Student will be given instant access to the Membership materials in Kajabi by Company. Student will have continual access to the Membership materials for so long as Student pays the membership renewal fee.
Student shall only have one license to access the Membership and use Membership materials. Student understands and agrees that the Membership materials may not be shared with any third-party. In the event Company suspects that the Membership is being shared or that Student has shared its log-in information with a third-party, Company reserves the right to immediately terminate Student’s access to the Membership in its sole discretion.
3. Membership Fee
Student shall pay the first Subscription Term membership fee upon purchase to receive access to the Membership. Student understands and agrees that the online payment processor used by Company (Stripe) will securely keep Student’s credit card information on file. Student hereby authorizes Company to charge its credit card on file automatically according to the terms set forth in this Agreement.
If any eligible payment methods Company has on file for Student are declined for a Subscription Term payment, Student shall provide a new eligible payment method promptly or Student will be immediately removed from the Membership.
If Student does not cancel its membership within the required cancellation policy as indicated in Section 5, Student is required by law to complete the next Subscription Term membership fee. Student understands that its membership will automatically continue and that it authorizes Company (without notice, unless required by applicable law) to collect any and all outstanding receivables, using any eligible payment method Company has on record for Student’s account.
4. Refund Policy
Subscription purchases are ineligible for refunds. If Student cancels Membership, or requests cancellation of Membership from Company, prior to Subscription Term renewal date, the Membership will be set to cancel upon the Subscription Term renewal date. Student will retain access to Membership content until cancellation date and no pro-rated refunds shall be issued.
5. Term & Cancellation Policy
This Agreement shall last in perpetuity until either the Student terminates its subscription or the Company terminates the Agreement.
Student has complete control over Membership status and may cancel at any time in their Kajabi account settings or by requesting cancellation from Company (by emailing [email protected]) A cancellation processed prior to Subscription Term renewal date will set the Membership to cancel effective at the end of the current billing cycle on the date and time of next scheduled Subscription Term renewal date. Student will continue to have full access to Membership until effective cancellation on renewal date. We have also created a video showing exactly how to manage a subscription within Kajabi and it can be viewed here.
Company may terminate this Agreement in the event Student breaches this Agreement or any of the Membership rules and terms. In the event of termination by Company, Student will be immediately removed from the Membership and will not be charged any subsequent payments.
6. Personal Information
By participating in the Membership, Student will be asked to register with the Membership hosting platform to receive access to Membership materials. Student shall select a username and password and may be asked to provide further personal information. Student agrees to allow Company access to this personal information for all lawful purposes. Student is responsible for the accuracy of the identifying information, maintaining the safety and security of its identifying information, and updating Company on any changes to its identifying information.
The billing information provided to Company by Student will be kept secure and is subject to the same confidentiality and accuracy requirements as Student’s identifying information indicated above. Providing false or inaccurate information, or using the Membership for fraud or unlawful activity, is grounds for immediate termination from the Membership.
7. Student Contributions
Through Student’s participation in the Membership, Student may post materials, comments, or replies to comments (“Student Contributions”) on Membership pages and materials. Student grants Company a royalty-free, non-exclusive, worldwide license to copy, display, use, broadcast, transmit, and make derivative works of all Student Contributions.
Company may offer bonuses to incoming students via marketing and advertising. Student is entitled to any bonuses offered at the time of enrollment. Bonuses are not guaranteed to be available for the entire lifespan of the Membership and vary depending on live and automated promotions throughout the year. Company reserves the right to change or alter bonuses and promotions in its sole discretion.
9. Copyright & Intellectual Property
All Membership materials, documents, Facebook posts/comments/replies, emails, blogs, digital files, paper documents, and any other work created by Company in relation to this Agreement is the exclusive and sole property of Company and are protected by United States Copyright Laws (USC Title 17). Student hereby agrees that Company’s Membership and accompanying content is owned by Color Theory Design Co, LLC and is not to be used for purposes beyond Student implementation. Student is granted a single-use, non-exclusive, non-transferable, revocable license to access and use the Membership content and resources. Student shall not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found in the Membership. Violations of this federal law will be subject to its civil and criminal penalties.
Company is generally available to answer questions regarding Membership access or billing issues during normal business hours: Monday – Friday 9am – 5pm CST, excluding holidays. Company will only communicate via email and can be reached at:
General Inquiries: [email protected]
Billing/Subscription Issues: [email protected]
Company will respond to Student by email within 2 business days.
Company WILL NOT answer any emails or direct messages on social media from Student. Any and all questions or comment not specific to Membership access or billing should be posted to Flowering Minds Facebook Group.
11. Service Location
Both Parties agree and understand that the Membership platform, Facebook Group, and additional services to be provided under this Agreement shall be performed virtually.
Student shall not (i) disclose to any third-party any details regarding the business of the Company, including, without limitation its Membership materials, Membership downloads, Membership outlines, coaching methods, customers, the prices it obtains, the prices at which it sells products and programs, its manner of operation, its plans, its Membership and coaching strategies, any of the Company’s trade secrets or any other information pertaining to the business of the Company (the “Confidential Information”), (ii) make copies of any Confidential Information or any content based on the concepts contained within the Confidential Information for personal use or for distribution unless requested to do so by the Company, or (iii) use Confidential Information other than solely for the benefit of the Company.
13. Assumption of Risk Using Online Platform
Student agrees that their participation in the Membership is at its own risk. Company does not assume or accept responsibility for the security of Student’s account or content. Student agrees that their participation in the creation of an online account is at their own risk. In the event a breach of security has occurred, Company will notify Student pursuant to all laws and regulations.
Student hereby agrees to indemnify and hold harmless Company and its officers, directors, employees, consultants, contractors, and agents from and against any and all losses, damages, liabilities, expenses and costs, including reasonable legal expenses and attorneys’ fees, as a result of any claim, demand, action or other legal proceeding by any third-party to the extent such losses arise directly or indirectly out of activities performed by Company pursuant to this Agreement, except to the extent such losses result from the gross negligence or willful misconduct of Company.
15. Maximum Damages
The sole remedy for any actions or claims by Student shall be limited to a refund, the maximum amount not to exceed the total monies paid by Student under this Agreement.
16. Limitation of Liability
In no event shall Company be liable under this Agreement to Student or any other third-party for consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, arising out of, relating to, or in connection with any breach of this Agreement, regardless of (a) whether such damages were foreseeable, (b) whether or not Student was advised of such damages, and (c) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based.
17. Force Majeure
No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control that are unforeseen and unpredictable at the time of contracting, including, but not limited to, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) a natural disaster (fires, explosions, earthquakes, hurricane, flooding, storms, explosions, infestations), epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The Impacted Party shall give Notice within 7 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 days following Notice given by it, the other Party may thereafter terminate this Agreement upon Notice. All membership payments made by Student up to the date of Notice of a Force Majeure Event are non-refundable. In the event this Agreement is terminated due to the impossibility of the Impacted Party to cure its performance obligations, such payments shall be credited to Student’s account and must be used within 12 months from the date of Notice of the Force Majeure Event.
18. Inability of Company to Continue Membership
In the event Company determines, in its sole discretion, that it cannot or will not perform its obligations under this Agreement due to circumstances including, but not limited to, injury, illness, death of family member, pregnancy, military orders, religious obligations, government restrictions or other personal emergencies, it will:
- Immediately give notice to Student;
- Issue a refund or credit based on a reasonably accurate percentage of services rendered and Membership program utilized/provided; and
- Excuse Student of any further performance and/or payment obligations under this Agreement.
19. Professional Disclaimer
The Membership and additional services provided by Company according to this Agreement are for informational purposes only. Student acknowledges and agrees that any information posted in the Membership, Membership materials, or Facebook group is not intended to be legal advice, medical advice, financial advice, therapeutic advice, or other professional advice, and no fiduciary relationship has been created between Company and Student.
20. No Guarantees
Company does not make any guarantees as to the results, including financial or other personal gains, of any services provided. Student agrees to take responsibility for Student’s own results.
21. Release & Reasonable Expectations
Student has spent a satisfactory amount of time reviewing Company’s business and has a reasonable expectation that Company’s services throughout the Membership program will produce different outcomes and results for each Student. Student understands and agrees that:
- Every Student and final result is different.
- Membership content is intended for a mass audience and that Company will use its best efforts to create favorable experiences to each Student depending on their business and personal needs, but that no 1-on-1 services are expected or guaranteed under this Agreement.
- Dissatisfaction with Company’s (or any of its agents’) independent judgment or coaching/mentoring style within the Membership and in accompanying online platforms are not valid reasons for termination of this Agreement or request of any monies returned.
22. Spam Policy
Student is strictly prohibited from using the Membership and Membership materials for illegal spam activities, including, but not limited to, gathering contacts, email addresses, or other personal information from fellow Membership students and distributing such information to third-parties or sending any mass commercial emails.
23. Warranty Disclaimer
Student agrees that its participation in the Membership and use of the Membership program is at its sole and exclusive risk, and that any services provided by Company are on an “as is” basis. Company hereby expressly disclaims any and all express or implied warranties of any kind, including, but not limited to, the implied warrant of fitness for a particular purpose and the implied warrant of merchantability. Company makes no warranties that the Membership will meet your needs or that the Membership will be uninterrupted, error-free, or secure.
24. Sales Tax
Should any sale and/or use tax be imposed on any part of this Agreement, such tax shall be collected from Students and remitted by Company. All sales tax will be included on invoices and/or the checkout process through the Company’s online payment platform.
25. Entire Agreement
This is a binding Agreement that incorporates the entire understanding of the Parties, supersedes any other written or oral agreements between the Parties, and any modifications must be in writing, signed by both Parties, and physically attached to the original agreement.
26. Venue & Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. The Parties agree that any dispute or lawsuit arising out of, or concerning, this Agreement that is not first resolved by arbitration shall be resolved exclusively in a federal or state court of competent jurisdiction located in Hays County, Texas. The Parties assume responsibility for their own collection costs and legal fees incurred should enforcement of this Agreement should it become necessary.
Any and all disputes or disagreements rising between the Parties out of this Agreement upon which an amicable understanding cannot be reached, shall be decided by arbitration in accordance with the procedural rules of the American Arbitration Association. The Parties agree to be bound by the decision of the arbitrator(s). The arbitration proceeding shall take place in Hays County, Texas unless another location is mutually agreed to by the Parties. The cost and expenses of the arbitrators shall be shared equally by the Parties. Each Party shall be responsible for its own costs and expenses in presenting the dispute for arbitration.
This Agreement cannot be transferred or assigned to any third-party by either the Company or Students without written consent of all Parties.
29. Severability & No Waiver
In the event that any part of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable. Any failure by one or both Parties to enforce a provision of this Agreement shall not constitute a waiver of any other portion or provision of this Agreement.
Headings and titles are provided in this Agreement for convenience only and will not be construed as part of this Agreement.
Parties shall provide effective notice (“Notice”) to each other via email at the date and time which the Notice is sent: Company’s Email: [email protected]
32. Facsimile Signatures
The Parties agree that a facsimile copy (electronic copy) of this Agreement with the signatures as indicated below shall constitute a valid contract.
By checking the box on this order form and upon completion of purchase, Student confirms that it has read, understands, and agrees to the terms and conditions of this Agreement.
Company has read, understands, and agrees to the terms and conditions of this Agreement.
Color Theory Design Co, LLC by Brian Hummel (Owner)
Color Theory Design Co, LLC by Alyssa Lytle (Owner)